EDRi-gram newsletter - Number 10.6, 28 March 2012

[EDRI-gram newsletter]

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     EDRi-gram

biweekly newsletter about digital civil rights in Europe

Number 10.6, 28 March 2012

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Contents
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1. EU-US PNR Agreement: A bad day for civil liberties in Europe
2. EU-US joint commitments on privacy and protection of personal data
3. France: Biometric ID database found unconstitutional
4. ICANN will cooperate in taking down websites for copyright infringements
5. CoE's Internet Governance strategy places emphasis on users' rights
6. New German court decision on traffic filtering
7. Italy: Problematic Internet blocking decision against fraudulent website
8. ENDitorial: European Parliament defends itself and democracy from ACTA
9. Recommended Action
10. Recommended Reading
11. Agenda
12. About

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1. EU-US PNR Agreement: A bad day for civil liberties in Europe
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On 27 March 2012, the Civil Liberties (LIBE) Committee of the European
Parliament decided to back the new air passenger data deal with the United
States. In her recommendation, the Dutch Liberal MEP Sophie in 't Veld
called on her colleagues to reject it. However, to her regret, the LIBE
Committee has endorsed the Agreement despite inadequate legal safeguards.

EDRi had repeatedly pointed out the serious flaws of the Agreement to the
Parliamentarians in the LIBE Committee. The new text does not only severely
undermine fundamental rights but also largely ignores the criteria set by
the European Parliament itself. In its resolutions of May and November
2010, Parliamentarians asked for a reduction of the retention period,
for "push" only as a method of transfer and for a clear prohibition of
profiling - none of these conditions have been met in the new Agreement.

The Commission has neither provided evidence that the collection, storage
and processing of personal data is proportionate at all, let alone why it
appears to believe that 15 years of data retention are necessary and
proportionate. Furthermore, the proposed Agreement does not provide for
sufficient protections and rights for citizens. According to the revised
Agreement, any individual is entitled to "request" their PNR data from the
US Department of Homeland Security (DHS). However, since the Agreement does
not address what citizens are entitled to receive an answer, the DHS can
decline this request. Moreover, the DHS has decided that its use of PNR data
is exempt from the Privacy Act even for U.S. citizens.

In the upcoming plenary vote MEPs now have to either defend fundamental
rights and European citizens' right to privacy and reject the Agreement - or
undermine the Parliament's own credibility and vote in favour of the deal.

EDRi comments on the US air passenger data deal (2012)
http://edri.org/files/2012EDRi_US_PNRcomments.pdf

Opinion of the European Data Protection Supervisor (9.12.2011)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-12-09_US_PNR_EN.pdf

Article 29 Data Protection Working Party letter to LIBE on PNR (6.01.2012)
http://ec.europa.eu/justice/data-protection/article-29/documentation/other-document/files/2012/20120106_letter_libe_pnr_en.pdf

(contribution by Kirsten Fiedler - EDRi)

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2. EU-US joint commitments on privacy and protection of personal data
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At the 28 November 2011 EU-US Summit, President Obama and Presidents Van
Rompuy and Barroso announced that the US and the EU are determined to
finalise negotiations on a comprehensive EU-US data privacy and protection
agreement. On 19 March 2012, a High Level Conference on Privacy and
Protection of Personal Data took place to discuss commercial data privacy
questions, held simultaneously in Washington and Brussels. The conference
was extremely well attended by high-level EU regulators and provided
valuable insights into the respective priorities. Before the Conference,
European Commission (EC) Vice-President Viviane Reding and U.S. Secretary of
Commerce John Bryson released an EU-US joint statement on data protection in
which they stated that this was a defining moment for global personal data
protection and privacy policy and for achieving further interoperability of
our systems on a high level of protection.

The conference wad organised in the context of the EC's legislative
proposals to reform and strengthen the fundamental right to data protection
and unify the EU's data protection laws and enforcement rules and President
Obama's privacy blueprint, including the Consumer Privacy Bill of Rights.
Stakeholders in the US are very interested in the ongoing data protection
reform in the European Union - notably in the proposal for a "one-stop-shop"
and a consistent regulatory level playing field across all EU Member States.

Viviane Reding, started by saying that today, in a digital economy, the
scare of sharing personal information has increased being a crucial factor
of economic growth, therefore the protection of citizens' right is
inevitable: trust in digital economy is possible only when a solid
protection is settled. That's why data protection is a strong policy
priority for the European Commission and the European Parliament, as well as
for all the 27 Member States. Notably she underlined three prominent
elements:

1. The principles of data protection are as valid today as in 1995 and EU
has to reaffirm the importance of this fundamental right

2. Technology innovations have made our DP rules a key factor for our
digital single market because, in order to flourish, our economy needs
trust: lack of trust indeed discourages citizens from buying online and
giving their personal information on line.

3. European and American companies expect that the new European data law
will provide a legal playing field, regardless of where the company operates
in the 27 members: the goal is to create only one rule for Europe - making
sure that the one stop shop for data protection regulation is for all EU
Member States; this is the only way EU will be a more attractive place to do
business.

US authorities have developed efforts to comply with safe harbours - but
more efforts are needed: a dialogue is needed to improve the safe harbour
agreement and to go even further; stronger interoperability standards are
needed as well to complete the puzzle to provide legal certainty to
businesses and citizens.

John Bryson, US Secretary of Commerce, who came in with a video message,
reported that President Obama had asked the Congress to enact legislation
but also to move ahead on a voluntary basis through codes of conduct,
underlying the importance of a collaborative approach. The other speakers in
the first panel also all broadly welcomed both the EU proposals and the
Obama White Paper.

However, Douwe Korff, representing EDRi, said that these exchanges of mutual
compliments were excessive: there were still major issues to be resolved. In
particular, in Europe, data protection is a fundamental right, accorded to
"everyone" (Charter of Fundamental Rights). The European civil society in
principle welcomed the proposed EU Regulation insofar as it sought to
achieve data protection at a high level, although quite a few issues still
needed improving or clarifying. By contrast, in the US privacy much less
protection is given under the Constitution: although the recent Jones
decision by the Supreme Court has shown progress, there were still important
limitation on the US Fourth Amendment guarantees; the "third party" doctrine
undermined principles that are seen as crucial in Europe, notably
purpose-limitation; and in important areas privacy protection was denied to
non-US citizens altogether.

Although the conference as such was limited to privacy in the commercial
context, the debate should also note the major issue of private-sector data
being used for law enforcement and national security purposes without
appropriate safeguards: that was the elephant in the room that no-one
mentioned. From a European perspective, it was essential that privacy in the
USA should be placed on a comprehensive statutory basis that met the
international standards, as enshrined in the only binding global data
protection instrument, Council of Europe Convention No. 108 (currently being
updated). The President's proposals for a Consumer Privacy Bill of Rights
would only result in an acceptable situation if that Bill would become a
binding law, meeting the new Convention standards.

In the second panel, Representative Ed Markey (D-MA)'s speech was revealing:
he presented a good update on the status of the COPPA (Children's Online
Privacy Protection Act) revisions and, as the long-standing co-chair of the
Congressional Privacy Caucus, provided a fascinating historical summary of
the various federal privacy initiatives of recent decades. He highlighted
that in the US people shared the same concerns and values as within EU,
in particular the fundamental principles of knowledge, notice and right to
say "No" to the use of their private info, but something gets lost in
translation from principle to practice. In his opinion, the DP Regulation
can assure a high level of protection and, therefore, is a good example to
follow: US Congress needs to act to protect privacy as a right. Notably, he
insisted on the need to protect 15 years old and younger from behavioural
targeting ads and to create, for this purpose, a safe harbour for children.
He commended Viviane Reding for the strong response to Google new privacy
policy and asked for investigation in the US of Google new privacy policy.

In the third panel, Peter Hustinx, the European Data Protection Supervisor,
had a slightly optimistic message for the US. In outlining his understanding
of the interoperability requirements highlighted in the Joint Statement, he
suggested that an adequacy finding could result from the implementation of
the White Paper, even if it did not result in a comprehensive law, as
adamantly requested by Francoise Le Bail, Director-General for Justice at
the European Commission. Mr. Hustinx emphasized the need for sufficiently
common principles and their binding implementation as far more important
than the specifics of the regulatory regime.

The fourth panel focussed on the enforcement of privacy (and other matters)
by the US Federal Trade Commission, and was thus linked to the fifth panel
which specifically discussed the Safe Harbor. FTC representatives strongly
emphasised their commitment to strong enforcement, and pointed to two recent
agreements with Google and Yahoo. However, David Smith, the UK Deputy
Information Commissioner with primary responsibility for data protection,
said that when he looked at the websites of a small random sample of
companies that said they complied with the Safe Harbor, he found that about
1/3 of them did not even appear to have a privacy statement, another 1/3 had
one but it did not meet the Safe Harbor standards, and the final 1/3 seemed
to have a privacy statement that more or less reflected the Safe Harbor
requirements. Douwe Korff intervened to say that was what he found too, and
said that in spite of the two recent cases (the effects of which still
needed to be seen), the Safe Harbor appeared to be largely a fig leaf behind
which US companies in practice continued to operate contrary to basic
privacy principles. Another intervener, Edward Hasbrouck, pointed out that
the FTC's remit was limited in some important respects, and for instance did
not cover transportation and, thus, airline passenger data.

EU Conference: Privacy and Protection of Personal Data (19.03.2012)
http://ec.europa.eu/justice/events/eu-us-data/index.html

Recorded webcast of the Conference (19.03.2012)
http://scic.ec.europa.eu/str/indexh264.php?sessionno=0cdf61037d7053ca59347ab230818335

Viviane Reading's speech: Towards a New "Gold Standard" in Data
Protection?(19.03.2012)
http://ec.europa.eu/commission_2010-2014/reding/pdf/speeches/20120319speech-data-gold-standard_en.pdf

EU-U.S. joint statement on data protection by European Commission
Vice-President Viviane Reding and U.S. Secretary of Commerce John Bryson
(19.03.2012)
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/12/192

(Thanks to Douwe Korff - EDRi-member FIPR- UK)

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3. France: Biometric ID database found unconstitutional
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The French Constitutional Council found the law proposing the introduction
of a new biometric ID for French citizens as unconstitutional. The law was
referred to the Constitutional Council on 7 March 2012, by more than 200
members of the French Parliament, a day after the French National Assembly
passed the 10-article law under the pretext of combating "identity fraud".

According to the bill, more than 45 million individuals in France would have
their fingerprints and digitized faces stored in what would be the largest
biometric database in the country. The biometric ID card was to include a
compulsory chip containing personal information, such as fingerprints, a
photograph, home address, height, and eye colour. A second, optional chip
was to be implemented for online authentication and electronic signatures,
to be used for e-government services and e-commerce.

The opposing parliamentarians challenged the compatibility of the bill with
the citizens' fundamental rights including the right to privacy and the
presumption of innocence. In passing the bill, the National Assembly ignored
CNIL's (French Data Protection Authority) report of October
2011 that was criticizing the creation of the centralized biometric
database. It also entirely ignored the general opposition at the European
level. In 2011, EDRi and 80 other civil liberties organizations asked the
Council of Europe to study whether biometrics policies respect the
fundamental rights of every European.

Moreover, previous experiences in France with biometric passports (highly
criticised as well) have proven entirely unreliable with about 10% of the
issued passports having been fraudulently obtained. The bill does not take
into consideration either the position of the European Court of Human Rights
which in 2008 condemned UK for breaching the right to privacy after the
creation of a file including data on all people involved in a crime,
irrespective of their position (victim, witness, suspect or guilty).

On 22 March, the Constitutional Council found unconstitutional four articles
of this law, as well as part of other two articles. The council reminded
that "the collection, registration, preservation, consultation and
communication of personal data have to be justified by a general interest
reason and carried put properly and proportionally".

While the Council found no problem related to the general interest, it
clearly raised the issue of proportionality. "Regarding the nature of the
recorded data, the range of the treatment, the technical characteristics and
conditions of the consultation, the provisions of article 5 touch the
right to privacy in a way that cannot be considered as proportional to the
meant purpose".

The Council also had objections against the creation of the huge biometric
database considering the fact that the National Assembly had authorized the
use of the database by the police for extended purposes from the
identification of an accident victim to finding the authors of law
infringements or crimes.

The confusion in the bill text between an identity document and an
electronic payment means was also sanctioned by the Council. The idea was
that the ID could contain data allowing the owner to apply an electronic
signature in view of electronic transactions. The Council drew the attention
on the fact that the law did not specify the nature of the data and did not
provide any guarantee for the integrity and confidentiality of these data
and considered that the legislator has exceeded its competence in this
matter. In other words, that the government did not really know what they
were talking about.

The new electronic identity card judged as unconstitutional (only in French,
23.03.2012)
http://www.lemonde.fr/societe/article/2012/03/23/la-nouvelle-carte-d-identite-biometrique-jugee-inconstitutionnelle_1674721_3224.html

France: Constitutional Council censors the database created to fight the
identity theft (only in French, 23.03.2012)
http://www.rfi.fr/france/20120323-france-conseil-constitutionnel-censure-fichier-usurpation-identite

Decision n0 2012-652 DC on the Law regarding the identity protection (only
in French, 22.03.2012)
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2012/2012-652-dc/decision-n-2012-652-dc-du-22-mars-2012.105165.html

"A Time Bomb For Civil Liberties": France Adopts a New Biometric ID Card
(8.03.2012)
https://www.eff.org/deeplinks/2012/03/french-national-assembly-proposes-new-alarming-biometrics-bill

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4. ICANN will cooperate in taking down websites for copyright infringements
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During its 43rd international meeting that took place in San Josi, Costa
Rica between 11 and 16 March 2012, ICANN (the Internet Corporation for
Assigned Names and Numbers) expressed its intention to increase its
cooperation with global law enforcement agencies and governments, to combat
copyright infringements.

There are 22 registries containing domain names registered in a top-level
domain and over 700 registrars accredited by ICANN. During an open session
with the Government Advisory Committee (GAC), the ICANN board confirmed its
intention to meet the expectations included by GAC in a document with 12
recommendations. "There has been some agreement on 11 of the 12
recommendations made by law enforcement authorities to the registrar
accreditation agreement; we will work to ensure agreement meets expectations
and give registrars the incentive to accept recommendations right away,"
said Kurt Pritz, ICANN senior vice president in charge of stakeholder
relations.

Thus ICANN, not only isn't taking position against abuses of the domain
system in order to preserve the basic structure and principles of the
Internet, but actually takes part in an increasing tendency of controlling
and censoring the Internet.

One of the12 recommendations was the inclusion of a clause in the
registrars' agreements that would hold them responsible (by negligence) for
registering domains engaging in criminal activities. Another one was for
registrars to keep detailed information of domain buyers, (including their
source IP addresses and transaction information), and to validate the
contact information given by them.

ICANN was also urged to review the compliance of the registrars with
enforcement agreements before renewing their contracts. And ICANN has shown
its willingness to meet the requirement: "Complaints on compliance started
coming in the last six to nine months, a team of 12 is now in place and will
improve the quality of service," said Rod Beckstrom, ICANN CEO and
president.

Furthermore, prior to its meeting, ICANN has even produced a "Thought Paper
on Domain Seizures and Takedowns" which is actually a guide for government
officials on how to seize, takedown and censor websites including sections
such as "guide for preparing domain name orders, seizures & takedowns" and
"checklist of information to submit with a legal or regulatory action."

The paper "offers guidance for anyone who prepares an order that seeks to
seize or take down domain names. Its purpose is to help preparers of legal
or regulatory actions understand what information top level domain name
(TLD) registration providers such as registries and registrars will need to
respond promptly and effectively to a legal or regulatory order or action.
The paper explains how information about a domain name is managed and by
whom," says ICANN about its own paper.

Domain seizures for copyright infringement likely to go global (14.03.2012)
http://news.idg.no/cw/art.cfm?id=B2318066-9100-36AE-6DA668DCC8BE64C8

Thought Paper on Domain Seizures and Takedowns (8.03.2012)
http://blog.icann.org/2012/03/thought-paper-on-domain-seizures-and-takedowns/

Rather Than Speaking Out Against Domain Seizures, ICANN Provides A 'How To'
Manual (12.03.2012)
http://www.techdirt.com/articles/20120312/01013718069/rather-than-speaking-out-against-domain-seizures-icann-provides-how-to-manual.shtml

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5. CoE's Internet Governance strategy places emphasis on users' rights
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On 15 March 2012, the 47 Council of Europe (CoE) member states adopted
an Internet governance strategy to protect and promote human rights, the
rule of law and pluralistic democracy online.

The strategy, which covers 40 lines of action for the period 2012-2015,
refers to 6 major areas: Internet's openness, the rights of users, data
protection, cybercrime, democracy and culture, and children and young
people. It is meant to identify "challenges and corresponding responses to
enable state and non-state actors together to make the Internet a space
which is inclusive and people-centred" and has in view the international
legal framework, including the human rights law, which is "as a matter of
principle, equally applicable on-line as it is off-line."

The main action lines of the strategy include the maximisation of rights and
freedoms for internet users, developments in data protection and privacy,
the enhancing of the rule of law and an effective co-operation against
cybercrime, the maximisation of the Internet's potential to promote
democracy and cultural diversity and the protection and empowering of
children and youth.

The strategy has in view the development of soft law instruments such as
high-level "framework of understanding and/or commitments" to protect the
"Internet's universality, integrity and openness as a means of safeguarding
freedom of expression regardless of frontiers and Internet freedom,"
protection standards to ensure a free cross-border flow of legal online
content and human rights standards on network neutrality.

Preserving core values such as human rights, democracy and rule of law in
the online environment  is vital in the CoE's opinion as well as the
necessity for citizens to be properly informed in order to use Internet
services responsibly. The strategy has in view that the protection of
personal data and the respect for privacy on the Internet are indispensable.

Another direction considered in the strategy is an increased data collection
through the European Audiovisual Observatory and improved public services
through the Internet so as to better take advantage of the potential of the
Internet for democracy and cultural diversity.

The CoE Convention on data protection ("Convention 108") is also considered
the best available instrument to protect and promote data protection and
therefore, the strategy has in view its modernisation and the strengthening
of its implementation.

"The strategy's adoption is the validation by member states that the CoE's
core values - human rights, rule of law, democracy - for the Internet are a
priority. There is a realisation that the Internet is enabling and affecting
people in many ways, and that there is a need to embrace its influence. The
strategy provides orientation and promotes a holistic and sustainable
approach to the Internet, with people and their rights and freedoms at its
heart. In doing so, it champions multi-stakeholder dialogue as the way
forward for Internet policy making", said Lee Hibbard, Head of the
Information Society Unit in CoE.

Internet Governance - Council of Europe Strategy 2012-2015 (15.03.2012)
https://wcd.coe.int/ViewDoc.jsp?Ref=CM(2011)175&Language=lanEnglish&Ver=final&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383

Council Of Europe Passes Internet Governance Strategy (15.03.2012)
http://www.ip-watch.org/2012/03/15/council-of-europe-passes-internet-governance-strategy/

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6. New German court decision on traffic filtering
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A Higher Regional Court in Hamburg ruled on 14 March 2012 that the
file-hosting site RapidShare had to proactively filter the files uploaded by
its users. A court's press release stated RapidShare was required to block
its users from uploading a list of 4 000 files allegedly infringing
copyrights.

The present ruling comes to confirm three separate previous rulings by a
lower court in cases brought by German booksellers, book publishers and a
music rights group. "The judgement confirms that Rapidshare must take
effective measures against the use of illegal content on its service," said
a German bookseller's association.

RapidShare's spokesman Daniel Raimer explained that the copyright holders
were leaving out essential details of the court ruling that were actually
quite positive for the site. "There is a possible reason for the rushed
approach, particularly that of the Booksellers Association. In the hearing,
the Higher Regional Court indicated that it would deviate from its former
position under which RapidShare's business model was not tolerated by the
legal system."

The German verdict appears to be in contradiction with a ruling by the
European Court of Justice (ECJ) which ruled in February 2012 in the case
Sabam vs. Netlog that hosting sites could not proactively filter copyrighted
content because that would violate the users' privacy and hinder freedom of
information.

ECJ decided that a national court is precluded from issuing an injunction
against a hosting service provider which requires it to install a filtering
system "capable of identifying electronic files containing musical,
cinematographic or audio-visual work in respect of which the applicant for
the injunction claims to hold intellectual property rights, with a view to
preventing those works from being made available to the public in breach of
copyright" with the purpose to filter information "which is stored on its
servers by its service users; which applies indiscriminately to all of the
users as a preventative measure; exclusively at its expense and for an
unlimited period"

RapidShare has not yet decided whether it would appeal the verdict and is
probably waiting for the written decision to be made public.

Court Orders RapidShare to Filter User Uploads (15.03.2012)
http://torrentfreak.com/court-orders-rapidshare-to-filter-user-uploads-120315/

Copyright Illegal Downloads: Higher Regional Court of Hamburg decides duties
for the online storage service "Rapidshare" (only in German, 15.03.2012)
http://justiz.hamburg.de/presseerklaerungen/3334434/pressemeldung-2012-03-15-olg.html

German court orders Rapidshare to filter user uploads (19.03.2012)
http://arstechnica.com/tech-policy/news/2012/03/german-court-orders-rapidshare-to-filter-user-uploads.ars

ECJ - Judegement Sabam vs Netlog (16.02.2012)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=119512&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=158253

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7. Italy: Problematic Internet blocking decision against fraudulent website
============================================================

The Italian Antitrust Authority (AGCM) has started ordering the blocking
some websites involved in the online sale of fashion products, following
several complaints made by consumers.

It is the first blocking measure ordered by this Authority (enforced through
the collaboration with the antitrust department of the Guardia di Finanza),
which relied on the Consumer Code and e-commerce rules.

In its blocking order, the Authority does not charge the provider with
selling counterfeited products, but for the infringement of rules related to
warranties, delays and delivery conditions..

This decision has been adopted against the company called "Private Outlet,"
which is part of the e-commerce "private club," where members can join for
free and take advantage of special promotions of famous brands fashion
products with high discounts.

AGCM has intervened after several reports of fraudulent behaviour, because
Private Outlet allegedly "spread, through its website, content liable to
mislead consumers about the availability of the products offered for sale":
it has considered the elements collected enough to proceed a preliminary
investigation and to demand the company to suspend any activity.

In order to ensure the efficiency of the measure and ostensibly to offer
better protection for consumers, the Authority ordered the ISPs to
completely block all domains that refer to the Private Outlet network on the
whole Italian territory.

Granted that consumers protection is necessary and that the complaints are
may well be valid, it seems that this kind of measure actually goes far
further beyond what the Italian rules actually mandate.

Firstly, because these rules allow the Authority only to "demand the
provider to prevent or put an end to the committed infringements", secondly,
because the jurisdiction to issue provisional orders against third parties
has always been exercised by the ordinary courts and, finally, because AGCM
has provided these orders without the participation in proceedings of the
subjects required to bear the measures and offer a defence.

We are talking about the exercise of an interlocutory power (which has all
the characteristics of a criminal seizure) that, apparently, the Competition
Authority believes itself to be mandated to exercise: this is contrary to
what has been stated in some decisions of the Court, that have always
attributed this power to the ordinary judicial body.

Moreover, blocking of IP address may not be sufficient to avoid the
perpetuation of fraud (the provider could, for instance, change the address
or even change its name): is it possible that the Authority cannot imagine
more effective and less controversial measures? Measures which restrict
fundamental rights that are not necessary and proportionate and that do not
genuinely meet objectives of general interest are in beach of the European
Convention on Human Rights.

Text of the provision - page. 89 (only in Italian, 12.03.2012)
http://www.agcm.it/bollettino-settimanale/5906-bollettino-82012.html

Vajont.com case (libel slander) - Court's decision declares unlawful the
blocking (only in Italian, 14.03.2012)
http://www.fulviosarzana.it/blog/liberta-di-stampa-e-di-espressione-il-tribunale-della-liberta-di-belluno-presieduto-dal-presidente-del-tribunale-dichiara-illegittimo-il-sequestro-preventivo-del-sito-vajont-info-e-il-blocco-all/
and
http://www.fulviosarzana.it/blog/esclusiva-lordine-di-revoca-integrale-del-blocco-al-portale-vajont-info-il-pubblico-ministero-lo-estende-a-tutti-i-provider-e-a-tutti-gli-utenti-italiani/;

Moncler Case (counterfeiting) - Court's decision rescinds the blocking (only
in Italian, 4.11.2011)
http://brunosaetta.it/diritto/moncler-non-basta-la-parola.html

(Contribution by Elena Cantello - EDRi intern)

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8. ENDitorial: European Parliament defends itself and democracy from ACTA
============================================================

The decision of this week of the European Parliament not to refer ACTA to
the European Court of Justice was a decision which has ramifications far
beyond the ACTA dossier itself. It is one which will have long-term effects
on the institutional standing of the European Parliament.

The functioning of the EU decision-making process relies on a broadly equal
balance between the three main institutions - the Commission, the Parliament
and the Council (Member States). The European Parliament is the only
directly elected institution. It is therefore particularly important that it
is robust and independent. The less powerful the Parliament is in this
institutional triangle, the less direct influence that citizens can bring to
bear in the preparation of legislation that affects every one of them.

In controversial dossiers, the European Commission and/or the Member States
have often sought to overrule the position (or expected position) of the
European Parliament, exploiting personal or institutional weak points,
pushing the Parliament's democratic scrutiny of the dossier in question to
one side. Instead of judging a proposal on its merits, career ambitions of
individual MEPs or domestic political concerns are the primary factors that
decide the position of the Parliament.

This is what happened with the Data Retention Directive, where the UK
Presidency of the Council essentially bullied the Parliament into
submission. On the basis of the Parliament's scrutiny of the Directive, it
would have been rejected. However, by a mixture of pressure from the UK
Presidency on the Parliament as a whole and the German government on German
MEPs, the Directive was approved. The fact that the Parliament could be
persuaded to abandon its position on a policy on the basis of bullying and
domestic political pressures inflicted damage on the institution that is
still visible today.

In the past few months, the ACTA dossier has become very similar. As the
likelihood of a rejection of the proposed Agreement by the Parliament grew,
the European Commission, with support from Parliamentarians motivated by
other priorities than the defence of the prerogatives of the only
democratically elected EU institution, has sought to use every possible
machination to prevent the Parliament from taking its vote.

The first such tactic was the referral of the dossier to the European Court
of Justice. If this measure was really based on genuine concerns about
ACTA's legality, it would have been done far earlier - and certainly before
the dossier had been handed over to the European Parliament. From that point
on, the question was (and still remains) whether the European Parliament is
strong enough as an institution to defend itself from having its
decision-making process visibly and publicly undermined in this way.

The pro-ACTA lobby in the Parliament has used the Commission's plan for a
Court referral as a basis to undermine the Parliament's decision-making.
Every possible argument and strategy that could be used to prevent
a vote is therefore being brought to bear inside the Parliament to support
the Commission's attempt to circumvent the Parliament's role in the
decision-making process.

The same lobby is even seeking to persuade the Parliament that
it does not have the political right, even if it has the legal right, to
reject the Agreement after years of (untransparent) negotiation. This is why
they argue that rejection would "irrevocably affect Europe's credibility as
a trusted global trade partner". The argument to the Parliament is therefore
"do not use your legal rights. Do not seek to bring democracy into this
process, it will make the EU look bad."

More surprisingly, elements within the Parliament are seeking to undermine
the Parliament. For example, elements of the Parliament's legal service are
arguing that the Parliament's rules of procedure can be understood to say
things they don't say. The ostensibly neutral and non-political lawyers
argue that the Rule of Procedure, which say that the Parliament should
suspend its work if the Parliament itself refers a decision to the Court,
argue that - presumably on the basis that the drafters of the Parliament's
rule were incompetent - the rules meant to say that deliberations should be
suspended if any institution refers a proposal to the Court.

With help from the industry and Commission lobbies, the anti-Parliament
elements in the Parliament generated a whole queue of implausible delaying
tactics on the production line.

Do the rules of procedure of the Parliament say what they do not say? Maybe
the Parliament should delay a vote for over a year to be on the safe side.
Or perhaps this question should be referred to the Constitutional Affairs
Committee to spend a few months reflecting on - with the Parliament
suspending its work in the meantime.

Perhaps the Parliament should produce an interim report, asking for
non-binding undertakings from the Commission and Member States about
implementation of ACTA, thereby wasting another few months.

It is a very positive sign that the European Parliament has decided to
resist the siren calls of the pro-ACTA lobby. It is a positive sign that the
Parliament is showing a new courage to stand up for its democratic role in
the decision-making process. However, there are still numerous possibilities
for delay and even a vote in favour of ACTA's disastrous provisions. The
courage shown this week gives grounds for cautious (and, above all,
non-complacent) optimism.

Full overview of the delay plans
http://edri.org/acta_revival

Industry lobbying on ACTA
http://www.edri.org/files/acta_misinformation.pdf

Mr Wieland sacrifices the Parliament's broader interests (27.03.2012)
http://acta.ffii.org/?p=1216

European Parliament Rejects Referral Of ACTA To EU High Court (27.03.2012)
http://www.ip-watch.org/2012/03/27/european-parliament-rejects-referral-of-acta-to-eu-high-court/

Cooperative efforts in ACTA Digital Chapter (2012)
http://www.edri.org/files/2012EDRiPapers/Article27.pdf

(Contribution by Joe McNamee - EDRi)

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

28 March 2012: Events on the Document Freedom Day
http://documentfreedom.org/

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

EDRi Cooperative efforts in ACTA Digital Chapter (03.2012)
http://www.edri.org/files/2012EDRiPapers/Article27.pdf

ENISA: Study on data collection and storage in the EU
http://www.enisa.europa.eu/activities/identity-and-trust/library/deliverables/data-collectionEU

Commission gives up blocking VPN services, but still blocks ToR (26.03.2012)
http://www.daten-speicherung.de/index.php/eu-commission-gives-up-blocking-tor-and-vpn-services/

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

29 March 2012, Reykjavmk, Iceland
Reykjavmk Digital Freedoms Conference
http://rdfc.is/

30 March - 1 April 2012, Berlin, Germany
Wikimedia Chapters Meeting 2012
http://meta.wikimedia.org/wiki/Wikimedia_Conference_2012

13 April 2012, Biefeld, Germany
Big Brother Awards Germany
http://www.bigbrotherawards.de/

16-18 April 2012, Cambridge, UK
Cambridge 2012: Innovation and Impact - Openly Collaborating to Enhance
Education
OER12 and the OCW Consortium's Global Conference
http://conference.ocwconsortium.org/index.php/2012/uk

25 April 2012, Helsinki, Finland
Finnish Internet Forum
http://www.internetforum.fi/

26-28 April 2012, Belgrade, Serbia
SHARE 2 Conference
http://www.shareconference.net/en

2-4 May 2012, Berlin, Germany
Re:Publica 2012: ACTION!
http://re-publica.de/12/en

14-15 June 2012, Stockholm, Sweden
EuroDIG 2012
http://www.eurodig.org/

18-22 June 2012, Samos, Greece
Samos 2012 Summit on Open Data for Governance, Industry and Society
Academic Papers Submission Deadline: 29 April 2012
http://samos-summit.blogspot.com/

20-22 June 2012, Paris, France
2012 World Open Educational Resources Congress
http://www.unesco.org/webworld/en/oer

2-6 July 2012, Budapest, Hungary
Policies and Practices in Access to Digital Archives: Towards a New
Research and Policy Agenda
http://www.summer.ceu.hu/sites/default/files/course_files/Policies-and-Practices-flyer%202012_0.pdf

9-10 July 2012, Barcelona, Spain
8th International Conference on Internet Law & Politics: Challenges and
Opportunities of Online Entertainment
http://edcp.uoc.edu/symposia/idp2012/cfp/?lang=en

11-13 July 2012, Vigo, Spain
The 12th Privacy Enhancing Technologies Symposium
(PETS 2012)
http://petsymposium.org/2012/

12-14 September 2012, Louvain-la-Neuve, Belgium
Building Institutions for Sustainable Scientific, Cultural and genetic
Resources Commons.
http://biogov.uclouvain.be/iasc/index.php

7-10 October 2012, Amsterdam, Netherlands
2012 Amsterdam Privacy Confernece
http://www.ivir.nl/news/CallforPapersAPC2012.pdf

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

EDRi-gram is a biweekly newsletter about digital civil rights in Europe.
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