EDRI-gram newsletter - Number 4.11, 7 June 2006

EDRI-gram newsletter edrigram at edri.org
Wed Jun 7 07:35:43 PDT 2006



 biweekly newsletter about digital civil rights in Europe

    Number 4.11, 7 June 2006


1. EU-US agreement on passenger data transfer annulled
2. Frankfurt Appellate Court says online demonstration is not coercion
3. New Czech Police draft act allows taking DNA samples by force
4. Content flatrate is feasible according to French study
5. Campaign against censorship on the Internet
6. Journalistic protection for online journalists and bloggers
7. Dutch Gamer in US intelligence spotlight
8. Private copy system under scrutiny
9. Agenda
10. About

1. EU-US agreement on passenger data transfer annulled
The European Parliament obtained the annulment by the European Court of
Justice of the agreement between the European Community and the US
Government on the transfer of passenger name records (PNR) from foreign
carriers to the US with the view to combat terrorism and maintain national
security. In order to prevent problems the agreement will be still in force
until 30 September 2006. Until then the Member States have time to solve the
legal issues arising from the annulment within or outside the EU context.

After 11 September 2001 air carriers flying from Europe to the US were in a
dilemma. The US Government required to access personal data of travellers
contained in the databases of all foreign carriers. On the other hand, 1995
EU Directive on data protection restricts the transfer of personal data from
one jurisdiction to another unless there is adequate protection of that

Following a series of negotiations to solve this dilemma during 2002 and
2003 on issues related to the amount of data transferred, the period of data
retention and data protection, an agreement between EU and US entered into
force in May 2004. The European Commission also decided that the US provided
adequate protection for the data transfer to take place.

The European Parliament however considered that data transfer should not
take place unless greater data protection measures were taken.It also found
that the European Commission had no legal jurisdiction to conclude such an
agreement and therefore decided to challenge the agreement at the European
Court of Justice.

The decision of the Court was taken considering the European Commission had
no legal authority to conclude such an agreement as the Directive does not
apply to this kind of data transfer.

The Commission disagreed and considered that the carriers process PNR data
within the Community jurisdiction and then make the transfer of these data
to US so these activities of private parties are related to public security
and therefore are regulated by the Directive.

The court considered that the transfer of PNR data to the US concerns public
security, and as private operators must operate
within a framework established by public authorities, the European
Commission was acting in the area of public security in which it has no
jurisdiction. The court concluded that both the agreement and the decision
on adequacy were based on the wrong legal base.

However, the court decided on the annulment of the agreement without
considering the other pleas from the Parliament related to the privacy and
human rights aspects of the agreement. This leaves open the possibility of
bi-lateral agreements between the US and each EU member state.

The decision of the Court therefore should not be considered as a real
victory of the European Parliament, which has no power of approval over such
treaties or the power to bring legal actions against them. There is also the
risk that such a separate treaty signed between a member state and the US
could be even worse than the original agreement from the point of view of
data protection standards.

Judgment of the Court of Justice - PNR case (30.05.2006)

European Court of Justice press release (30.05.2006)

Courts annul EU-US air data deal (30.05.2006)

EU-US passenger data transfer deal annulled by European Court (30.05.2006)

Statewatch's Observatory on the exchange of data on passengers (PNR)

Staying vigilant after EU-US PNR deal cancelation (French only, 31.05.2006)

EDRI-gram : Advocate General European Court rejects PNR deal (5.12.2005)

2. Frankfurt Appellate Court says online demonstration is not coercion
The collective blockade of a corporate website in the context of a
political event is not violence or coercion but legitimate free
expression, a German Higher Regional Court in Frankfurt decided on 22 May.

The decision came almost five years after the online demonstration took
place. The groups "Libertad" and "Kein Mensch ist illegal" (No Human is
Illegal) had called for an online blockade of Lufthansa's website to
protest against the company's participation in the deportation of
asylum-seekers. With a script- (client-) based distributed denial of
service attack, the Lufthansa web servers were supposed to be blocked
during the annual company's shareholders assembly on 20 June 2001. Though
Lufthansa was mostly able to adapt to the protest by renting more
bandwidth for that day, the event created significant public interest.
13000 people participated in the demonstration, the Federal Ministry of
Justice publicly questioned its legality, and others even spoke about
"computer sabotage". The online demonstration was accompanied by an
offline protest at the shareholders assembly venue. The organizers had
tried to register the online protest with the authorities beforehand like
a normal demonstration, but had been rejected.

While the organizers called the demonstration a modern form of non-violent
blockade and referred to their constitutional right to freedom of
assembly, Lufthansa and the Frankfurt public attorney saw in it a call to
coercion. The offices of Frankfurt-based group Libertad were searched and
computers seized, and the main official organizer, Andreas-Thomas Vogel,
was indicted. Investigations were led by the state security branch of the
police and the attorney's office. The Frankfurt district court convicted
Vogel to a fine in summer 2005, and ruled that the demonstration equalled
coercion against Lufthansa and other website visitors.

The first criminal chamber of the Frankfurt Appelate Court now dropped all
charges and ruled (No. 1 Ss 319/05) that the demonstration was
in fact no violence or coercion, but had been targeted at influencing
public opinion. Therefore it was legal. Libertad spokesman Hans-Peter
Kartenberg commented: "The Internet, in spite of its virtuality, is a real
public space. Where dirty deals are made, there you can and must also
protest against them." This ruling will be important in the future
development in this legal field, as this trial had been the first criminal
case about online demonstrations in Germany.

Decision by the Frankfurt Appellate Court (in German only, 22.05.2006)

Statement by Libertad on the ruling (in German only, 1.06.2006)

Higher Regional Court says online demonstration is not force
In German (1.06.2006)
In English (2.06.2006)

(Contribution by Ralf Bendrath, EDRi-member Netzwerk Neue Medien, Germany)

3. New Czech Police draft act allows taking DNA samples by force
The Czech Senate, upper chamber of the Parliament, approved on 25 May 2006
the amendment of the Criminal Proceedings Code and Police Act, which
empowers police officers to take DNA samples and other identification
samples as fingerprints.

According to the draft police can take the DNA samples even by using force
in case of resistance. Currently, a person may refuse to provide the saliva
sample, which could result only in aprocedural fine of maximum 2800 Eur.

The new amendment foresees that the DNA samples can be taken from people
suspected, charged, accused, sentenced or in execution of protective
measures. The amendment also contains provisions authorizing massive DNA
sampling from all people that are imprisoned for wilful crimes. This
purposed measure will concern approximately 12 000 people.

Due to the necessary financial resources for processing the DNA samples into
DNA profile, there is going to be a substantial delay in this activity. It
means in fact, that the police will hold complete DNA's of thousands of
detainees  for an unknown period. There is a standard that requires the
destruction of the original sample, after the DNA has been processed into
the profile.

EDRi-member Iuridicum Remedium elaborated a paper with an overview of the
risks of the new law. The draft paper was disseminated and distributed to
the lawmakers. However, the bill was passed surprisingly easyly in both
Parliament chambers, after an intensive lobby of the Police Forensic
Institute, the institution that manages the National DNA Database.
Despite highlighting the human rights risks of the amendment, the bill was
supported by 43 of the 49 present senators. Only some senators expressed
their doubts about broadening police powers without appropriate safeguards
for the rights of the concerned persons.

The bill is waiting to be signed by the President of the Republic. In case
he does not sign it, the law will not enter into force, because the lower
chamber does not have the opportunity to take a vote on it, since it is
dissolved due to elections.

Legislative process of the amendment to the Police Act
http://www.psp.cz/sqw/historie.sqw?o=4&T=1024 (in Czech only)

Comments from Iuridicum Remedium on the draft act
http://www.iure.org/570359 (in Czech only, 15.05.2006)

Police will be able to forcibly take DNA sample from detained persons
http://www.ceskenoviny.cz/vyhledavani/index_view.php?id=190180 (in Czech
only, 25.05 2006)

(Contribution by Helena Svatosova - EDRI-member Iuridicum Remedium - Czech

4.Content flatrate is feasible according to French study
Nothing in the national law and international obligations prevents states
from permitting file-sharing as long as they subject it to a levy. This is
the conclusion of a legal feasibility study under the supervision of Prof.
Andri Lucas, the most renowned copyright scholar in France.

The study on the feasibility of compensation for peer-to-peer file-sharing,
first released in French in June 2005, has been translated into English for
wider accessibility. The translation has been conducted at the initiative of
the German advocacy group privatkopie.net with the support of BEUC, the
European Consumers's Organisation, and Stiftung Bridge.

The analysis concludes that downloading is covered by the private copying
exception, provided that the existing system of remuneration is adapted.
Internet service providers would have to pay a levy, just as the
manufacturers and importers of blank media do today.
For uploading, the authors envisage subjecting the so called making
available right to mandatory collective management. In short, "compulsory
collective management is not perceived as reversing the fundamental
principles of copyright, but instead 'reinforcing and (..) organising the
protection granted to authors against infringements of their fundamental
rights, as consecrated in French law since 1793".

L'Alliance Public-Artistes has supported its arguments for a Global Licence
by additional studies on the technical and economic feasibility. The latter
find that a levy of 5 Euros per month is economically justified. These
studies have thoroughly invalidated arguments that a flat rate compensation
for legal file-sharing is not compatible with national, European and
international copyright law and that it threatens the emerging online
market. Such arguments were brought forth, among others, by the German
Ministry of Justice.

With reference to the Lucas study, Members of French Parliament from both
the conservative ruling party as well as from the socialist party have
advanced amendments to the recent copyright law reform in France with the
aim of introducing a Global Licence. The National Assembly passed these
amendments on 22 December 2005.

The Global Licence was a reality in the proposals for a short period of
time. The rights industry only managed to get it rolled back by an
unprecedented campaign that Liberation called "total war on the Global
Licence". When the administration brought the draft copyright law up for
vote in the French National Assembly in January again, the provision on the
Global Licence was gone.

Privatkopie.net considers that collective rights management is ideally
suited for the individual mass medium Internet. It is legally, technically
and economically feasible. Privatkopie.net also expresses its hope in
increasing the rationality of the international copyright debate by
releasing an English translation of the Lucas study.

Peer-to-peer File Sharing and Literary and Artistic Property - A Feasibility
Study regarding a system of compensation for the exchange of works via the
English Version (03.2006)
French Version  (05.2005)

Study Shows : Content Flatrate is Feasible! (28.05.2006)

EDRI-gram : Update on French EUCD Transposition (29.03.2006)

(Contribution by Volker Grassmuck , privatkopie.net)

5.Campaign against censorship on the Internet
Amnesty International together with The Observer and Soda Creative launched
a campaign called irrepressible.info against the increasing governmental
censorship of the internet. The campaign asks governments to stop censoring
websites, blocking emails or shutting down blogs and make an appeal to the
big corporations to stop supporting these actions.

The Irrepressible.info website set up for the campaign includes a badge with
parts of censored information and people are urged to send emails including
this badge. Thus the censored information can be transmitted all around the
globe. The website includes also a pledge that will be presented at the
Internet Governance Forum meeting in Athens in November 2006 where
governments and companies from all over the world will discuss the future of
the Internet. The pledge that has been signed by more than 20 000
individuals says: "I believe the Internet should be a force for political
freedom, not repression. People have the right to seek and receive
information and to express their peaceful beliefs online without fear or

Amnesty is urging people to petition governments to cease censoring the web.
It also urged technology companies not to facilitate such activities.
Information technology companies "have helped build the systems that enable
surveillance and censorship to take place", Amnesty claims.

In the campaign-launching article Kate Allen, UK director of Amnesty
International, criticised technology companies that allow censorship and
provide information to governments convicting political dissidents.
Irrepressible.info gives Yahoo, Microsoft and even Google as examples of
companies having provided confidential user information to the Chinese
authorities resulting in suppression of freedom of expression, and even

The big companies defend their position and consider that entering
restricted countries such as China is for the good of the local population
because some information is better than none.

Amnesty - Irrepressible.info campaign

Amnesty: we must free the internet (28.05.2006)

Today, our chance to fight a new hi-tech tyranny (28.05.2006)

Amnesty takes a strike against web censorship (30.05.2006)

6.Journalistic protection for online journalists and bloggers
The Californian appeal court decided on 26 May that online journalists and
bloggers have the same right to protect their sources as all other
journalists. The case was brought to court by Apple Computer demanding from
a number of news website operators to reveal the source of confidential
information posted about some of its products.

Initially the trial court had ruled in favour of Apple but the appeal court
changed this decision stating that the defendants were protected by
California's reporter's shield law, as well as the constitutional privilege
against disclosure of confidential sources.

A major point in the case was whether the writers involved deserved the
protection of the First Amendment and the sites involved could be considered
a "newspaper, magazine or other periodical publication" as it is expressed
by the law.

The Californian Court of Appeal's decision is considered as a major victory
for press freedom. "This is a victory for the rights of journalists, be they
online or offline journalists, and it's a victory for the public at large",
said Kurt Opsahl, the staff attorney for the Electronic Frontier Foundation,
the group that represented the journalists. "It protects
the free flow of information to the press and from the press to the public".

Reporters Without Borders added: "The Californian appeal court's decision is
historic because it gives a new legitimacy to bloggers. Even though they do
not have press cards, they will henceforth have right of place in the world
of news and information".

The case highlights the lack of precedents in the UK regarding the
journalistic protection. The Contempt of Court Act of 1981 is an equivalent
act protecting journalists and although the law does not provide absolute
protection for sources, the court is required to decide whether the request
for source identification is sufficiently in the public, justice or national
security interest to over-ride a general presumption of source protection.
Recent cases have tended to favour the journalist's right to protect his

John MacKenzie, a Solicitor Advocate and partner with Pinsent Masons law
firm suggested that the Contempt of Court Act is broad enough to cover
operators of Internet news wires, blogs or other new media content.

Decision in Apple v. Does (20.05.2006)

Huge Win for Online Journalists' Source Protection (26.05.2006)

Court ruling protecting bloggers' sources hailed as historic (30.05.2006)

UK bloggers also likely to be Apple-proof (01.06.2006)

7. Dutch Gamer in US intelligence spotlight
A Dutch gamer has become subject of US intelligence and widespread
international media attention because of a self-made video-game movie.
The video consists of footage of the game Battlefield 2 spiced up
with different music and voiceovers. It was presented on 4 May 2006 at a
meeting of the House Permanent Select Committee on Intelligence as evidence
of a militant campaign to recruit Muslim youth on the Internet.

Reuters reported on the video that was shown at the meeting and
stated that it was a user-modified version of best-selling game
Battlefield 2, a military simulation which features combat between
U.S. forces and those of the fictitious Middle East Coalition (MEC)
as well as the People's Republic of China. Reuters quoted a Pentagon
official, Dan Devlin, as saying: "What we have seen is that any video
game that comes out... (al Qaeda will) modify it and change the game
for their needs".

The video starts with the voice of a male narrator saying: "I was
just a boy when the infidels came to my village in Blackhawk helicopters.
The infidels fired at the oil fields and they lit up as the eyes of
Allah". This is in fact a very easy recognisable copy of a voice-over
from the movie "Team America: World Police", an American satire by the
makers of South Park. The video footage was not created with a
modified version of Battlefield 2 at all, but with standard game
footage from an add-on module, a retail product widely available in
the United States and elsewhere. The Dutch maker Samir published the
movie in the end of 2005 on a Battlefield 2 forum under the name
"Sonic Jihad", a reference to a rap-album by rapper Paris. He took
most of the sounds from the movie called "Lion of the Desert"
starring Anthony Quinn.

Devlin spoke before the Committee, at which contractors from Science
Applications International Corp (SAIC) gave lawmakers a presentation
that focused on Iraq as an engine for Islamic militant propaganda.
SAIC has a $7 million Defence Department contract to monitor 1,500
militant websites that provide Al Qaeda and other militant
organisations with a main venue for communications, fund-raising,
recruitment and training.

To present this material, that is completely build up from various
pieces of western media content, as terrorist propaganda seems rather
unconvincing. Various gamers have ridiculed it. Samir has explained
the context of the video in various interviews in which he stated
that the video shouldn't be taken seriously. The attention by US
intelligence officials is however enough reason for him, a 25-year
old quality manager in a hospital, to cancel his plans to visit New
York out of fear of interrogation at arrival.

US accuses militants of using video games in youth appeal (07.05.2006)

Was Congress misled by "Terrorist" game video? We talk to gamer who created
the footage (11.05.2006)

Hearing on the Terrorist/Jihadist Use of the Internet for Strategic
Communications (04.05.2006)

Transcript of the Committee hearing (04.05.2006)

The video

(Contribution by Joris van Hoboken - EDRI-member Bits of Freedom -

8. Private copy system under scrutiny
The issue of the private copy remuneration system is becoming a subject of
debate for interest groups from all over the world.  L'AEPO-ARTIS grouping
27 associations of artists of Europe, the International Federation of
Musicians and the International Federation of Actors took a stand in the
support of the present private copy levy system.

According to the artists associations, the present private copy system
"significantly supports the cultural domain" as "a flexible system combining
freedom for consumers and legitimate revenues for the copyright owners"
being "vital for interpreters in the exploitation of their interpretation".
Replacing the fees on private copy, which brought income to the artists,
with DRM, which allows copying only within a system approved by its
producer, is profitable only for the industry selling DRM systems and not to
the interpreters who should be able to be compensated for copies of their

The Federation considers that technical protection measures against copying
applied to CDs, DVDs and online works are prejudicial both to consumers and
artists preventing the circulation of artistic creation and attacking
individual freedom.

The position of these associations comes at the moment when the topic of the
copyright levy reform is included in the European Commission Work Program
for 2006. The commission is concerned "that copyright levies are being
applied to digital equipment and media without due account being given to
the impact on new technologies and equipment especially the availability and
use of so called "digital rights management" technologies which can provide
alternative ways of compensating right-holders. Furthermore, there is a lack
of transparency about the application, collection and distribution of the
copyright levies to right-holders."

On the other side of the debate is an alliance called Copyright Levies
Reform Alliance (CLRA) that was formed by IT, telecoms, electronics and
digital industry associations, to lobby for removal of the levies.

The copy protection technologies are also criticized by a recent report of
the UK All Party Parliamentary Internet Group (APIG). The DRM report from
APIG looked at how copy protection systems restrict digital movies and music
and made several recommendations on the labelling regulations that should
tell consumers what they will and will not be able to do with digital
content that they purchase or on the prices charged for the same digital
content in different countries.

AEPO-ARTIS, FIA and FIM express their deep concern and clear opposition to
any restrictions of the remuneration system for private copying (31.05.2006)

The artists all over the world defend private copy (in French) (1.06.2006)

EC - Copyright levy reform

Coalition seeks to reform EU copyright levies (6.04.2006)

MPs in digital downloads warning (4.06.2006)

"Digital Rights Management" - Report of an Inquiry by the All Party Internet
Group (06.2006)

9. Agenda

14-18 June, Rathen, Germany
ICA-IAMCR Symposium on Internet Governance

17 June 2006, Berlin, Germany
Start: 14:00, Alexanderplatz
Demonstration "Freiheit statt Sicherheitswahn" (Freedom instead of
Security Delusion)

19-20 June 2006, Paris, France
New relations between creative individuals and communities, consumers and
citizens. Hosted by the TransAtlantic Consumer Dialogue (TACD)

19-23 June, Singapore
Euro-Southeast Asia ICT Forum (EUSEA2006) (with the EU Commission as

21 June 2006, Luxembourg
Safer Internet Forum 2006 Focus on two topics: "Children's use of new media"
and "Blocking access to illegal content: child sexual abuse images"

23 June 2006, Copenhagen, Denmark
Book Launch Human Rights in the Global Information Society.
Keynote on Privacy, terrorism and the new security agenda.
Organized by The Danish Human Rights Institute and The Danish WSIS network
Information about the book.
Program and invitation: http://www.humanrights.dk / http://www.una.dk/wsis

26-27 June 2006, Berlin, Germany
The Rising Power of Search-Engines on the Internet: Impacts on Users, Media
Policy, and Media Business

26-30 June 2006 Geneva, Switzerland
Provisional Committee on Proposals Related to a WIPO Development Agenda

26-28 June 2006, Cambridge, UK
Workshop on the Economics of Information Security (WEIS 2006)

28-30 June 2006, Cambridge, UK
Workshop on Privacy Enhancing Technologies

3-5 July, Cambridge, UK
Privacy Laws & Business, 19th Annual International Conference
"Privacy Crisis Ahead? Investing enough in data protection to strengthen
and defend your reputation"

7 July 2006, Zurich, Switzerland
Free cultures - a Free Internet. Internet Governance and Switzerland
Who is supposed to govern the internet? A symposium on the "Internet
Governance Forum" will be looking for the answers.

16 - 28 July 2006, Oxford, UK
Annenberg/Oxford Summer Institute: Global Media Policy: Technology and New
Themes in Media Regulation

2-4 August 2006, Bregenz, Austria
2nd International Workshop on Electronic Voting 2006 Students may apply for
funds to attend the workshop until 30 June 2006.

3 August 2006 , Prague, Czech Republic
Travelers privacy and EU
One day seminar organized by Iuridicum Remedium, providing a space for
privacy experts to meet Czech officials to discuss  passports,
biometrics, RFID, PNR deal and other issues related to privacy risks
possibly encountered by travellers in the EU.

14-16 September 2006, Berlin, Germany
Wizards of OS 4 Information Freedom Rules

10. About

EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 21 members from 14 European countries and 5 observers
from 5 more countries (Italy, Ireland, Poland, Portugal and Slovenia).
European Digital Rights takes an active interest in developments in the EU
accession countries and wants to share knowledge and awareness through the
EDRI-grams. All contributions, suggestions for content, corrections or
agenda-tips are most welcome. Errors are corrected as soon as possible and
visibly on the EDRI website.

Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 2.0 License. See the full text at

Newsletter editor: Bogdan Manolea <edrigram at edri.org>

Information about EDRI and its members:

- EDRI-gram subscription information

subscribe by e-mail
To: edri-news-request at edri.org
Subject: subscribe

You will receive an automated e-mail asking to confirm your request.

unsubscribe by e-mail
To: edri-news-request at edri.org
Subject: unsubscribe

- EDRI-gram in Macedonian

EDRI-gram is also available partly in Macedonian, with delay. Translations
are provided by Metamorphosis

- Newsletter archive

Back issues are available at:

- Help
Please ask <edrigram at edri.org> if you have any problems with subscribing or

----- End forwarded message -----
Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org
ICBM: 48.07100, 11.36820            http://www.ativel.com
8B29F6BE: 099D 78BA 2FD3 B014 B08A  7779 75B0 2443 8B29 F6BE

[demime 1.01d removed an attachment of type application/pgp-signature which had a name of signature.asc]

More information about the cypherpunks-legacy mailing list