EDRi-gram newsletter - Number 9.15, 27 July 2011

[EDRI-gram newsletter]

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       EDRi-gram

biweekly newsletter about digital civil rights in Europe

Number 9.15, 27 July 2011

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Contents
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1. Draft Council conclusions on Net Neutrality
2. EU countries to explain lack of implementation of the Telecoms Package
3. Germany's salaries database bites the dust
4. Slovakia: Court asks website to filter public procurement open data
5. Voluntary agreements on blocking are interfering with human rights
6. Belgium: Francophone press goes out and back in Google Search
7. Britain: Government reneges on DNA privacy promise
8. ENDitorial: Phone hacking and self regulation
9. Recommended Action
10. Recommended Reading
11. Agenda
12. About

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1. Draft Council conclusions on Net Neutrality
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On 15 July 2011, the Council (of the EU Member States) published Draft
"Conclusions" (a policy statement) on Net Neutrality. In the document, the
Council underlined the need to preserve the open and neutral character of
the Internet and established net neutrality as "a policy objective."

While this seems - and is - positive at first reading, the document also
refers to "affordable and secure high bandwidth communications and rich and
diverse content and services" as "an important policy objective" -
apparently establishing net neutrality as a somewhat secondary priority. In
summary, therefore, the Council indicates its willingness to embrace the
concept of "net neutrality" in further regulatory activities without being
entirely clear on what status this "policy objective" has in the hierarchy
of its communications policy.

Nonetheless, the importance of net neutrality for the economy is spelled out
in some detail, with the document pointing to the fundamental role of
telecommunications and broadband development for investment, job creation
and economic recovery. The document points to "the need to maintain the
openness of Internet while ensuring that it can continue to provide
high-quality services in a framework that promotes and respects fundamental
rights such as freedom of expression and freedom to conduct business."

This appears to diverge very positively from more extremist and populist
views expressed recently about "civilising" the Internet and, in the US
environment, experimenting with the fundamental building blocks of the
Internet in order to protect the perceived needs of a narrow range of
stakeholders. The draft Conclusions take a further step away from this
approach when it refers to "the importance of ensuring that users can
create, distribute and access content and services of their choice," moving
away from the implicit support for policing of content by Internet
intermediaries in the OECD Communiqui on Principles for Internet
Policy-Making which made repeated references to the right to access
"legitimate" content and "legitimate" sharing of information.

The biggest challenge facing the Council when seeking to defend this
positive approach is the range of demands for Internet intermediaries to
interfere with traffic to protect narrow vested interests such as
intellectual property owners and the willingness of certain intermediaries
to "voluntarily" engage in such interferences as an underhand means of
"normalising" interferences by access providers in citizens' communications.

It will be increasingly difficult for Member States (as indeed it is already
beginning to be the case for the European Commission) to demand  that
Internet intermediaries meddle with citizens' communications for the
perceived benefit of certain vested interests and, simultaneously, demand
that the same intermediaries not meddle with citizens' communications for
their own business interests.

Draft Council conclusions on Net Neutrality (15.07.2011)
http://register.consilium.europa.eu/pdf/en/11/st12/st12950.en11.pdf

Consolidated EU telecoms regulatory framework (12.2009)
http://ec.europa.eu/information_society/policy/ecomm/doc/library/regframeforec_dec2009.pdf

OECD Communiqui on Principles for Internet Policy-Making (28-29.06.2011)
http://www.oecd.org/dataoecd/40/21/48289796.pdf

(Contribution by Joe McNamee and Daniel Dimov - EDRi)

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2. EU countries to explain lack of implementation of the Telecoms Package
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The European Commission has sent letters of formal notice requesting
information from 20 EU countries regarding the reasons why they have not yet
fully implemented the EU Telecoms Package.

The EU member states were supposed to produce national legislation that
would implement, by 25 May 2011, the EU Telecoms Package, adopted late 2009,
but only seven states have fully complied until now.

The Telecoms Package includes amendments to the EU's Privacy and
Electronic Communications Directive providing a new requirement for website
owners to obtain consent from users to track their online behaviour through
"cookies".

According to the EU Directive, storing and accessing information on users'
computers was lawful provided "the subscriber or user concerned has given
his or her consent, having been provided with clear and comprehensive
information about the purposes of the processing".

The 20 member states have begun the process of drawing up new laws and some
have even implemented some of the new telecoms laws requirements but not the
entire Telecoms Package. In June, EU Commissioner Neelie Kroes warned the
member states that the Commission would use its "full powers" against those
countries that would not comply with the Directive.

Yet, Peter Hustinx, the European Data Protection Supervisor (EDPS), stated
that the Commission has not offered consistent guidance on how the EU states
should comply with the new legislation. Hustinx also criticised Kroes for
supporting self-regulatory methods undertaken by the online advertising
industry and for her support for the US "do not track" measures allowing
users to request websites not to monitor their activity, as the system
relies on websites reacting to the users' requests.

The formal letter sent by the Commission to the 20 countries represent a
first legal stage in the identification of infringements from countries that
have not enacted EU laws and could be referred to the European courts.

The 20 state members are supposed to reply to the letters within two months.
"If they fail to reply or if it is not satisfied with the answer, the
Commission can send the member states concerned a formal request to
implement the legislation, and ultimately refer them to the European Court
of Justice (ECJ)," the Commission said.

The ECJ can order EU member countries to implement EU Directives and fine
them if they do not.

European Commission begins legal action against countries that have still to
implement telecoms laws (20.07.2011)
http://www.out-law.com/page-12098

Digital Agenda: Commission starts legal action against 20 Member States on
late implementation of telecoms rules (19.07.2011)
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/905&format=HTML&aged=0&language=EN&guiLanguage=en

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3. Germany's salaries database bites the dust
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The German government announced, in a press release on 18 July 2011,
that it was going to abandon its central database and registration
procedure for salaries, ELENA ("Elektronischer Entgeltnachweis"/
"electronic salary record"), as soon as possible.

With this decision, German civil rights group and EDRi-member FoeBuD can
celebrate the successful outcome of a complaint they had handed in at
Germany's Federal Constitutional Court even before the court came to
consider its ruling. The complaint has been signed by more than 22 000
petitioners. In FoeBuD's analysis, the government finally had to pull the
plug on this ill-fated project after more than a year of procrastination.

A joint press statement by the Federal Ministries of Economics and of
Labour points to an insufficient uptake of the "qualified electronic
signature" as the reason to abandon the project. FoeBuD and their
lawyers call it regrettable that technical issues were highlighted and
no mention was made of the doubtful constitutional legality of the
procedure, which required all employers to transmit data on all salaries
to a central database operated by Germany's state pension insurance.
More than 400 million records of employee salaries have already been
collected, although most of this data was not even required for the
intended electronic records.

The press release gives reason to suspect that the government has by no
means given up on their idea to establish an electronic register of
employee data. As the statement says, "the Federal Ministry for Labour
and Social Affairs will formulate a concept on how the infrastructure
and know-how established through ELENA can be used for a simpler and
less bureaucratic procedure to record social security data."

As the intention to collect all German citizens' sensitive data in
central databases lingers on, there is reason to stay alert after the
current success regarding ELENA. FoeBuD will continue to monitor future
developments to guard against a replacement for this disproportionate
procedure being introduced through the back door.

Press statement by the Federal Ministry of Economics and Technology and
the Federal Ministry of Labour and Social Affairs (only in German,
18.07.2011)
http://www.bmwi.de/BMWi/Navigation/Presse/pressemitteilungen,did=424742.html

In-depth response by one of the lawyers in FoeBuD's Constitutional
Complaint, Meinhard Starostik (only in German, 19.07.2011)
https://www.foebud.org/datenschutz-buergerrechte/arbeitnehmerdatenschutz/elena/stellungnahme-von-rechtsanwalt-meinhard-starostik-zur-einstellung-von-elena/

(Contribution by Sebastian Lisken, EDRi member FoeBuD / redacted
translation of FoeBuD's German press release)

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4. Slovakia: Court asks website to filter public procurement open data
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Fair-Play Alliance (AFP), a Slovak non-governmental organization operating
znasichdani.sk site, was required by a Bratislava District Court to take
down from the website information related to certain public procurement
contracts.

The website was created in March 2011 in order to provide "a tool that would
enable journalists and watchdogs to cross-check information about companies
successful in public procurements with influential persons in these
companies".

The basic idea was to connect the information on the Public Procurement
bulletin with that in the database of Business register of the Slovak
republic "in a way that would match persons with the names of companies in
which these persons are or once were active, and with financial volume of
the companies' state contracts," stated Eva Vozarova from AFP.

Recently, the District Court of Bratislava II has issued a preliminary
injunction, ordering Fair-Play Alliance to withdraw from the website any
information related to a particular private individual, the statutory
representative of the large construction company Strabag which had won good
contracts paid with public money.  The decision of the court is that AFP
must remove the financial totals of public procurement orders won by
Strabag, and all other companies in which this person was involved. This
preliminary ruling had no detailed explanation on why this was necessary.

AFP considers the decision of the court inappropriate, unconstitutional and
threatens the right to freedom of speech. Moreover, the website only puts
together already publicly available data. It contains a register of people
known to be behind companies that have benefited from state orders. When
searching for a particular person, the site lists the companies to which the
name of the respective person is or was related to and the state orders
those companies have won, as well as the amounts received from public funds.

The court's decision is also unclear as, normally, it should instruct on how
to perform the action required. AFP was supposed to refrain from
publishing the persons' name, surname and title from the website
znasichdani.sk which could directly connect the claimant's person with
the financial value gained from public procurement. The site however makes
no connections of financial values to the claimant's name but only filters
information showing the results side by side. The total of occurrences of
the claimant's name can hardly be technically erased without compromising
the rest of the service.

"The alliance has done nothing else but make possible simultaneous searches
in two publicly accessible databases," stated lawyer Vladimmr Sarnik who
added that the preliminary decision of the court contains both formal and
factual mistakes.

The court decision was issued even before the plaintiff had submitted her
complaint (as the Slovak legal system makes this possible), which could lead
to a paradoxical situation when the preliminary decision may remain in place
for an indefinite period without a formal complaint being submitted.

Ironically, a few days ahead, on 17 June 2011, the Znasichdani.sk site was
awarded first prize at Open Data Challenge, a European competition sponsored
by the Open Knowledge Foundation and backed by the European Commission.

AFP has immediately appealed the court's preliminary decision.

Court orders removal of public procurement data (4.07.2011)
http://spectator.sme.sk/articles/view/43180/2/court_orders_removal_of_public_procurement_data.html

Why censoring Slovak spending app means bad news for open data (18.07.2011)
http://blog.okfn.org/2011/07/18/why-censoring-slovak-spending-app-means-bad-news-for-open-data/

Fair-play Watchdog Angered by Court ruling (29.06.2011)
http://www.thedaily.sk/2011/06/29/top-news/fair-play-watchdog-angered-by-court-ruling/

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5. Voluntary agreements on blocking are interfering with human rights
============================================================

Following the agreement of the EU institutions on a web blocking compromise
text which fails to adequately address the lawless blocking which is
undertaken in several EU countries, a careful reading of recent research on
the legality of this approach is called for.

Last month, Professor Yaman Akdeniz (Istanbul Bilgi University, Turkey)
prepared a report on Freedom of Expression on the Internet for the
Organisation for Security and Cooperation in Europe (OSCE). The report
contained an investigation on legal provisions and practices related to
freedom of expression, the free flow of information and media pluralism on
the Internet in OSCE participating States.

In his study, Professor Yaman Akdeniz observed that blocking measures in the
OSCE region are not always provided for by law nor were they always subject
to due process principles. In particular, he noted that blocking decisions
were not necessarily taken by the courts of law, but by administrative
bodies or Internet hotlines run by the private sector. They decided which
content, website or platform should be blocked. In many cases, such
"voluntary" blocking procedures lacked transparency and accountability. In
addition, the appeal in such procedures were either not in place or, where
they were in place, they were often not efficient. That is why the
compatibility of blocking with the fundamental right of freedom of
expression must be questioned.

In particular, in the absence of a legal basis for blocking access to online
content, the compatibility of "voluntary" blocking agreements and systems
with OSCE commitments, Article 19 of the Universal Declaration and Article
10 of the European Convention on Human Rights was problematic. Also, such a
"voluntary interference" might be contradictory to the conclusions of the
Final Document of the Moscow Meeting of the Conference on the Human
Dimension of the CSCE.

With regard to the compatibility of blocking with the fundamental right of
freedom of expression, Professor Akdeniz also pointed out that both the
1994 Budapest OSCE Summit Document and the European Court of Human Rights
reiterated the importance of freedom of expression as one of the
preconditions for a functioning democracy. In Budapest, "(t)he participating
States reaffirm(ed) that freedom of expression is a fundamental human right
and a basic component of a democratic society. In this respect, independent
and pluralistic media were essential to a free and open society and
accountable systems of government." According to Akdeniz, an "effective"
exercise of this freedom does not depend merely on the state's duty not to
interfere, but might require positive measures to protect this fundamental
freedom. Consequently, a blocking system relying exclusively on
self-regulation or "voluntary agreements" could be in a non-legitimate
interference with fundamental rights.

Yaman A.: Report on Freedom of Expression on the Internet
http://www.osce.org/fom/80723

The Final Document of the Moscow Meeting of the Conference on the Human
Dimension of the CSCE
http://www.osce.org/odihr/elections/14310

1994 Budapest OSCE Summit Document
http://www.osce.org/mc/39554

The Universal Declaration of Human Rights
http://www.un.org/en/documents/udhr/

The European Convention on Human Rights
http://www.hri.org/docs/ECHR50.html

EDRi-gram: OSCE: Access to the Internet should be a human right (13.07.2011)
http://www.edri.org/edrigram/number9.14/oecd-study-internet-freedom

(Contribution by Daniel Dimov - EDRi)

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6. Belgium: Francophone press goes out and back in Google Search
============================================================

As a result of Google's conflict with Copiepresse, the search engine
announced on 15 July 2011 that it would not index titles from the Belgium
francophone press.

Google stated that in doing so, it only complied with the decision of the
Appeal Court of 5 May 2011 that backed a court decision of February 2011
forbidding Google to publish Belgium press articles on Google News and
Google Search, with a fine reaching 25 000 euro in case of non-compliance.

Google's reaction looked like a punishment that would put some pressure on
Belgium's francophone press as the measure actually went beyond the
court's decision which only asked for the removal of Copiepresse articles
and not their complete erasing from the search engine.

The measure was however successful. "We would be happy to re-include
Copiepresse if they would indicate their desire to appear in Google Search
and waive the potential penalties," said Google spokesman William Echikson.
Which, Copiepress did on 18 July 2011.

Le Soir and La Libre Belgique stated on their sites that an agreement had
been reached with Google that would re-index the excluded sites. "It is
necessary to distinguish the Google search engine from the Google news
service," said an article on La Libre website adding: "The news editors do
not oppose having their content referenced by the Google search engine, they
refuse on the other hand for their informational content to be included in
Google News."

Google censures the Francophone press (only in French, 15.07.2011)
http://www.lecho.be/actualite/entreprises_technologie/Google_censure_la_presse_francophone.9082035-3063.art?ckc=1

Google re-indexes the Belgium press on its engine (up-date) (only in French,
18.07.2011)
http://www.01net.com/editorial/536000/google-supprime-la-presse-belge-de-son-moteur/

Google will re-index the francophone press (only in French, 18.07.2011)
http://www.lecho.be/actualite/entreprises_media/Google_va_reindexer_la_presse_francophone.9082738-3054.art

EDRi-gram: Google found guilty in Belgium for newspapers' copyright
infringement (18.05.2011)
http://www.edri.org/edrigram/number9.10/google-looses-copiepresse-case

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7. Britain: Government reneges on DNA privacy promise
============================================================

In Britain, the Conservative-Liberal Democrat coalition government has
announced that it will not delete the DNA records of suspects who were
arrested but subsequently acquitted or never charged. It had promised
to delete them following the Marper judgement, where the European
Court of Human Rights found it was unlawful to keep the DNA of
acquitted people indefinitely; this promise was enshrined in the
Coalition Agreement that set up the Government after the indecisive
2010 election.

But the Government now says it will rely on "anonymisation". The DNA records
of innocent people will be retained by the forensic service without the
suspect's names and addresses. When a match is found with crime-scene DNA in
the future, the innocent former suspect can be identified by matching the
sample bar code with the records of the police force that arrested him last
time. The Government may argue that this complies with UK data protection
law, which is a defective implementation of the Data Protection Directive.
However it fails to satisfy European and human-rights law.

The announcement was made quietly on Monday, 25 July 2011, while the press's
focus was on the killings in Norway.

Innocent people's DNA profiles won't be deleted after all, minister admits
(26.07.2011)
http://www.telegraph.co.uk/news/uknews/law-and-order/8660821/Innocent-peoples-DNA-profiles-wont-be-deleted-after-all-minister-admits.html

Database State (2009)
http://www.cl.cam.ac.uk/~rja14/Papers/database-state.pdf

(Contribution by Ross Anderson - EDRi-member FIPR - UK)

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8. ENDitorial: Phone hacking and self regulation
============================================================

The self-regulatory authority for the British press, the Press Complaints
Commission (PCC), has itself become one of the victims of the "phone
hacking" scandal, as self-regulation failed to not alone prevent but even
identify problems now believed to be endemic among UK newspapers.

Phone hacking - guessing or brute-force attacking voicemail accounts to
access messages - is a criminal offence in the UK. Cases at the News of the
World (NoW) were prosecuted under the Regulation of Investigatory Powers Act
(RIPA), and could also be offences under the Computers Misuse Act. In 2007,
private investigator Glen Mulcaire and NoW royal editor Clive Goodman were
convicted and imprisoned for RIPA interception offences. Thus to date, the
prosecutions have focused on reporters and investigators, rather than their
employers at News International.

In May 2007, the PCC found that there was no evidence of widespread phone
hacking at News of the World. Since that date, further allegations,
investigations by Parliamentary committees and threats of private legal
action have put pressure on the police to re-open the investigations.
Allegations of the excessively close relationships between the police and
News International and NoW, including possible payments, have meant that
senior police officials at the Metropolitan (London) Police have now
resigned.

One question that needs to be addressed is the extent to which "self
regulation" has failed in this arena. With strong motivations from their
members not to look at the behaviour of those same being regulated, the PCC
might well be expected to fail. But this wasn't obvious when the PCC was set
up.

The reasoning behind press self-regulation was at least more principled than
that behind Internet "self regulation". The press, it was argued, needs to
be strong and free. The methodology is also more coherent - it is, to a
large extent, "self-"regulation, unlike much Internet "self-regulation",
which is actually regulation of content or consumers by the Internet
industry. Thus it was thought better for the press to impose their own
rules, rather than relying on legislation and politicians, who have an
inbuilt desire to control and limit their activities. Yet, it has
comprehensively failed. A combination of high pressure for more sales in a
declining market, an unsafe technology and malleable or inattentive
enforcement let citizens' interests be ignored.

As it is often stated, but rarely politically accepted, once privacy is
stripped away, the ability of those threatened with privacy abuses to speak
out is vastly reduced. Thus, it was those who had already suffered exposure
by the News of the World who had to be brave enough to speak out. The UK's
political leadership was frequently too frightened to comment.

We may well ask why, if the PCC cannot balance the public interest, free
speech, privacy and business interests, the behavioural advertisers and
Internet Service Providers should be expected to do a better job. Purely
pragmatically, self-regulation may be expected to work where the interests
of end users are well-aligned with those doing the regulation: but where
those are strongly divergent, they are unlikely to. Unfortunately, as the
PCC has shown, the balance of interests can quickly shift with technology.
Thus we are left to conclude that, in the absence of procedures and
structures that are fit to cope with such shifts, legal protections and
official regulators are in fact the more important part of public
protection.

A second lesson just how politicians completely misunderstand the
complexities of industry "self-regulation." If the PCC could fail so badly
in the comparatively straightforward task of regulating its own industry,
why on earth can politicians feel that they can speak so blithely and
simplistically about private internet intermediaries "self-"regulating the
key democratic fundamental rights of our society - privacy and freedom of
communication?

Phone Hacking articles at The Guardian
http://www.guardian.co.uk/media/phone-hacking

News of the World phone hacking scandal investigations
http://en.wikipedia.org/wiki/News_of_the_World_phone_hacking_scandal_investigations

The UK phone hacking scandal: there's worse to come - much worse
(23.07.2011)
https://www.privacyinternational.org/blog/uk-phone-hacking-scandal-theres-worse-come-much-worse

The Government still wants to hack your phone (14.07.2011)
http://www.openrightsgroup.org/blog/2011/the-government-still-wants-to-hack-your-phone

(Contribution by Jim Killock - EDRi-member Open Rights Group - UK)

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9. Recommended Action
============================================================

Public consultation on personal data breach notifications under ePrivacy
Directive. Deadline: 9 September 2011
http://ec.europa.eu/information_society/policy/ecomm/library/public_consult/data_breach/index_en.htm

EU - Open access to scientific information - Commission seeks views
A public consultation on access to, and preservation of, digital
scientific information has been launched by the European Commission.
Deadline: 9 September 2011
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/890

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10. Recommended Reading
============================================================

Article 29 Data Protection Working Party - Opinion on Consent (14.07.2011)
http://ec.europa.eu/justice/policies/privacy/news/docs/press_release%20opinion_on_consent_14072011.pdf
http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2011/wp187_en.pdf

86 cents for one year without blanket telecommunications data retention
(25.07.2011)
http://www.vorratsdatenspeicherung.de/content/view/471/79/lang,en/

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11. Agenda
============================================================

10-14 August 2011, Finowfurt near Berlin, Germany
Chaos Communication Camp 2011
http://events.ccc.de/camp/2011

25-27 August 2011, Washington DC, USA
Global Congress on Public Interest Intellectual Property Law
http://infojustice.org/public-events/global-congress

7 September 2011, Berlin, Germany
Balancing the interests in the context of data retention
Registration by 15 August 2011
http://www.uni-kassel.de/einrichtungen/iteg/forschung/invodas/invodas-abschlusstagung.html

10-17 September 2011
Freedom Not Fear - International Action Week
http://www.freedomnotfear.org

16-18 September 2011, Warsaw, Poland
Creative Commons Global Summit 2011
http://wiki.creativecommons.org/Global_Summit_2011

27-30 September 2011, Nairobi, Kenya
Sixth Annual IGF Meeting: Internet as a catalyst for change: access,
development, freedoms and innovation
http://www.intgovforum.org/cms/nairobipreparatory

11 October 2011, Brussels, Belgium
ePractice Workshop: Addressing evolving needs for cross-border eGovernment
services
http://www.epractice.eu/en/events/epractice-workshop-cross-border-services

13-14 October 2011, Lisbon, Portugal
2nd International Graduate Conference in Communication and Culture: The
Culture of Remix
http://blogs.nyu.edu/projects/materialworld/2011/05/cfp_the_culture_of_remix.html

20-21 October 2011, Warsaw, Poland
Open Govrenment Data Camp
http://opengovernmentdata.org/camp2011/

27-30 October 2011, Barcelona, Spain
Free Culture Forum 2011
http://fcforum.net/

9 November 2011, Bucharest, Romania
Inet Conference: Access, Trust and Freedom: Coordinates for future Internet
http://www.isoc.org/isoc/conferences/inet/11/bucharest-agenda.shtml

11-13 November 2011, Gothenburg, Sweden
FSCONS is the Nordic countries' largest gathering for free culture, free
software and a free society.
http://fscons.org/

25-27 January 2012, Brussels, Belgium
Computers, Privacy and Data Protection 2012
http://www.cpdpconferences.org/

============================================================
12. About
============================================================

EDRi-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRi has 28 members based or with offices in 18 different
countries in Europe. 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 are visible on
the EDRi website.

Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 3.0 License. See the full text at
http://creativecommons.org/licenses/by/3.0/

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

Information about EDRI and its members:
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