On 12 October the Council of ministers of Justice and Home Affairs (JHA Council) will debate about data retention once again, both about the framework decision and about the directive proposal from the European Commission. In response to the final launch of the Commission proposal on 21 September, the UK Presidency of the EU announced it would wait for 2 months for the Commission and Parliament to agree with each other. Otherwise, it would use the last official JHA Council of 1 December 2005 to table the framework decision as an A-item (a decision item). In the last version of the Council proposal, dating from 3 October 2005, this position is described as: "The Presidency is strongly committed to reaching agreement on the substance of the proposal at the October 2005 JHA Council. The Presidency also holds the view that serious consideration will need to be given to the proposal for a Directive on data retention, which the Commission adopted on 21 September 2005."
The European Parliament had a second vote on the proposed JHA framework decision on 27 September 2005. Similar to the massive majority with which the EP adopted the Alvaro report against data retention on 7 June 2005, the Parliament rejected the framework decision almost unanimously. A day before this important vote, the European Data Protection Supervisor (EDPS), Peter Hustinx presented his very critical opinion of the European Commission proposal.
Though he welcomed the proposal in principal as a more moderate and legally more decent way to approach the issue because it involves co-decision, the need remains unproved, in spite of the examples provided in the British paper. Referring to case law from the European Court of Human Rights, "the necessity and the proportionality of the obligation to retain data - in its full extent - have to be demonstrated." Hustinx concludes "more safeguards are needed. A simple reference to the existing legal framework on data protection (in particular, the directives 95/46/EC and 2002/58/EC) is not sufficient."
But once the EP accepts the proportionality, the EDPS suggests a lot of amendments to better limit the retention periods, the number of data and the kind of cases in which access is granted. By limiting the access to _specific_ serious criminal offences, routine access for "fishing operations" or for data mining activities can be excluded. During his strong speech to the LIBE committee of the European Parliament, Hustinx also demanded attention for the danger of data-mining by intelligence services. Though the European Union cannot control the access of security or intelligence services, he said, the issue should not remain invisible. The Commission should make sure member states take the necessary steps to regulate this kind of access.
Privacy International and European Digital Rights sent a long letter to the members of the European Parliament on 26 September, the day before the vote, urging them to keep all the earlier objections in mind that systematic data retention is very invasive, illegal, illusory and illegitimate. In the letter the Commission proposal is analysed in detail and compared with the draft JHA framework decision.
PI and EDRI conclude: "(Of course) the retention of communications traffic data may be of use in some investigations. This is true of any invasive collection and retention of any form of personal information, whether fingerprints, DNA, medical records, financial records, religious information, travel details, sexual preferences, etc. All of this information could be kept indefinitely to aid the police in investigations, and the data would likely be of some assistance. Therefore the European Parliament now faces a crucial decision. Is this the type of society we would like to live in? A society where all our actions are recorded, all of our interactions may be mapped, treating the use of communications infrastructures as criminal activity; just in case that it may be of use at some point in the future by countless agencies in innumerable countries around the world with minimal oversight and even weaker safeguards."
The expected opinion of the Article 29 Working Party of data protection authorities on the Commission proposal has not been published yet. The DPAs started to work on this opinion at their annual conference in Montreux, but have found it difficult to find agreement. In an attempt to support the Working Party to reject data retention once more, PI and EDRI have sent another long analysis of the proposals to them as well. This second, not public briefing, analyses all the examples provided for the need and usefulness and comments on the legal landscape. Commenting on the demand of the EDPS to exclude any fishing operations, PI and EDRI say they are not optimistic on the likelihood of such regulations. "We are concerned that the policy of data retention is being sought as a harmonising measure even while the access to this data is being subject to national law and vague international rules of co-operation."
Most recent version of the Council framework decision (03.10.2005)
http://www.statewatch.org/news/2005/oct/council-dataret-3-oct-05.pdf
EP rejects initiative on data retention (27.09.2005)
http://www.europarl.eu.int/news/expert/infopress_page/019-669-270-9-39...
PI and EDRI letter to the European Parliament against data retention (26.09.2005)
http://www.edri.org/docs/retentionletterformeps.pdf
Opinion Peter Hustinx (26.90.2005)
http://www.edps.eu.int/legislation/Opinions_A/05-09-26_Opinion_data_re...
A number of civil society groups present at the WSIS PrepCom in Geneva have written an open letter to UN Secretary-General Kofi Annan. "Since we learned that the second phase of the Summit would take place in Tunisia, we have expressed serious concerns over the violations of human rights and fundamental freedoms by the Tunisian authorities. Today, shortly before the holding of the Summit, we unfortunately must note that there has been no improvement and that we have recently even witnessed a serious deterioration of fundamental freedoms."
The letter sums up an impressive number of human rights infringements in Tunisia recently and asks the Secretary General to do everything in his power to make Tunisia respect international human rights standards.
The letter is signed by over a 100 civil society organisations, including many EDRI members. The letter states:
"We hence consider that the minimal conditions for the holding of this Summit are not met and that the credibility of the United Nations is at stake, as well as that of the international community, not to legitimise practices and policies contrary to its international commitments. We regret to inform you that if there are no significant improvements in the human rights situation in Tunisia before November 16, we would then need to reconsider the modalities and level of our participation at this Summit. We, therefore, respectfully request you to dispatch a high representative to Tunisia to review the state of affairs in the host country and for you subsequently to seek Tunisian official conformity with its international human rights commitments."
Civil society letter to Kofi Annan (01.10.2005)
http://www.edri.org/docs/lettertoAnnan.pdf
EDRI-member FIPR (the Foundation for Information Policy Research) has published a strong analysis of the proposed new EU intellectual property enforcement directive. According to FIPR, the proposed new directive is pushed by the UK Presidency, but will undermine basic freedoms. It will force all EU member states to criminalise incitement to infringe patents or copyrights. The directive is promoted by big drug companies and the music industry.
FIPR writes: "If passed, the police will have more powers against copyright infringers than they have against terrorists. At present, the EU cannot freeze assets if a suspected terrorist financier is a European citizen. Yet the Government wants to empower IP lawyers to seize the assets of EU citizens accused of aiding and abetting infringement -- such as the parents of children who might have downloaded music files."
FIPR also points to a danger for the innovation climate in Europe, especially because of the different treatment of patent infringements in the US and the EU. If a technology entrepreneur unknowingly infringes on a patent, for example because it has not been acknowledged yet, in the future he will be treated as a criminal in Europe. In the US on the other hand, it will remain a civil matter, allowing the entrepreneur the time to develop the business and fight the case in court.
FIPR analysis of the IPR enforcement directive (04.10.2005)
http://www.fipr.org/copyright/ipred2.html
EDRI-gram 3.14, New Commission directive proposal on IPR (14.07.2005)
http://www.edri.org/edrigram/number3.14/IPR
The European Commission has launched a public consultation on its program to digitise the collections of European libraries. The program on digital libraries is a response to a letter sent in April this year by six European presidents and priministers to create a virtual European library.
On 30 September the Commission adopted a Communication on the topic and published an accompanying staff working paper. In this Communication the Commission explains the link with Google's digitisation initiative. "Digitisation activities exist in all the Member States, but efforts are fragmented and progress has been relatively slow. This was underlined by the announcement of the Google initiative to digitise 15 million books from four major libraries in the US and one in Europe. If realised as planned, the Google initiative by far exceeds the efforts at national level in any of the Member States."
When it comes to digitising works, the Commission chooses to start with works in the public domain. It notes rather dryly: "An online library offering works beyond public domain material is not possible without a substantial change in the copyright legislation, or agreements, on a case by case basis, with the right-holders." The same legal challenge is set by digital preservation: "Since it depends on copying and migration, it has to be considered in the light of IPR legislation."
Somewhere in 2006 the Commission plans to issue a second Communication on the specific challenges of making scientific materials accessible for the public.
Meanwhile another US Internet giant is offering help to digitise works in the public domain; Yahoo announced plans to digitise books, in alliance with HP and Adobe. As with all 'free' offers, the hidden costs are very high. For example the exclusive rights to the commercial exploitation of the digitised works.
Commission website on the library initiative
http://europa.eu.int/information_society/activities/digital_libraries/...
Commission consultation (runs until 20 January 2006)
http://europa.eu.int/information_society/activities/digital_libraries/...
Yahoo! follows Google into print minefield (04.10.2005)
http://www.theregister.co.uk/2005/10/04/yahoo_print/
Since the introduction of compulsory identification in the Netherlands on January 1st 2005, the police have fined 50.000 people that could or would not present a valid ID. Almost 4.000 of those who were fined were children aged 14 and 15. The statistics are provided by the Central Judicial Collection office.
About 25% of the people fined do not pay the 50 euro fee (or 25 euro fee for children between 14 and 16 years old). These cases are presented to the local courts. On 28 September the court of Utrecht chose to create a marathon session for the first 250 cases. Only a quarter of the people appeared. Most of them were men that were involved in minor offences, such as driving without belt or peeing in public. One of them was really upset about the case. To the national RTL News he said: "Everybody can see I am Dutch and not a terrorist!" During the session there was a small demonstration in front of the court. The participants demanded withdrawal of the law, because it does not increase security and only causes double fines.
Since the spring of 2005, there is a hotline to report abuse of the law on compulsory identification. Many parents have complained to the hotline they do not want their children to continuously have a passport or ID card on them. The hotline also reports complaints from parents who were completely anxious about their children not returning home in time, after which they found out they were held in a police cell and not allowed to call home.
The national ombudsman in the Netherlands even reports complaints from people who voluntarily reported themselves as witnesses to accidents, but were fined because they could not show their ID. In fact one of the arguments for introducing the law was the need for the police to be able to identify witnesses. Fining voluntary witnesses is of course the surest way to make any witness run away from the scene as fast as possible.
The last bizarre incident in the Netherlands was the arrest of a demonstrator in The Hague who was part of a very large (and authorised) demonstration of the left wing movement. The man held up a sign protesting against compulsory ID. The police officers at the event accused the man of 'unauthorised assembly' and wanted to see his ID. He didn't have it with him and was taken to the station to have his fingerprints taken.
Finally, living up to the fears of many people opposing the law from the start, there indications that people with a coloured skin are demanded to show their ID more so than others. Achmed Aboutaleb, a famous Amsterdam municipal manager (alderman), said his son was asked for his ID 8 times within a few months. He contends that the ID checks occurred only because his son 'looks Moroccan'.
Hotline abuse law on compulsory identification (in Dutch only)
http://www.id-nee.nl/
The third Preparatory Committee (PrepCom-3) of the Tunis phase of the World Summit on the Information Society (WSIS) closed its doors Friday night 30 September 2005 after what ITU describes as "two weeks of day and night sessions that saw agreement on large sections of the Summit text, but ultimately disappointing progress on a raft of contentious issues."
A lot of international media attention was given to the debate about Internet governance between the EU and the US. After the Geneva phase of the WSIS, accommodating the claims from many delegations of the developing world for new management and oversight mechanisms, a multi-stakeholder Working Group on Internet Governance was set up. While the US remained firmly in support of the status quo, on 28 September the UK delegation, speaking on behalf of the European Union, tabled a radical proposal to create a new, multi-stakeholder forum to develop public policy. The proposal specifically addressed the need for international government involvement in the policies for allocation of IP addressing blocks and procedures for changing the root zone file to provide for insertion of new top-level domain names and changes of country-code top level domain name (ccTLDs) managers. With eight proposals now tabled, informal consultations – excluding the participation of civil society, will continue to be held from now until the prior-Summit meeting in Tunis.
The other key agenda items for PrepCom-3 included financing of WSIS Action Plan commitments, and the setting out of future mechanisms for implementation of the Action Plan and the follow-up of the Summit. Here a main stumbling block in negotiations remains the precise role of different agencies, including ITU, in ongoing WSIS activities.
The Prepcom also included: - An open letter from the WSIS Human Rights Caucus protesting against the continuous resistance by China to accredit Human Rights in China (HRIC) to the WSIS process.
- A Letter of appeal to Kofi Annan on the human rights situation in Tunisia, the host country of the second phase of the Summit, signed by a 100 civil society organisations (see separate item in this EDRI-gram).
- A Side Event on Human Rights in the Information Society, organised by the Human Rights Caucus of civil society.
- A Side Event on Privacy, organised by the Privacy and Security Working group of civil society.
- A number of oral and written interventions on Privacy specifically, and human rights more generally, presented by the Privacy and Security Working Group and the Human Rights Caucus of civil society.
ITU press release on the third PrepCom
http://www.itu.int/wsis/newsroom/press_releases/wsis/2005/30sep.html
European Union proposal for Internet reform (28.09.2005)
http://www.itu.int/osg/spu/newslog/ct.ashx?id=1a6db620-a87a-4157-a251-...
Documentation of the WSIS Human Rights Caucus of civil society
http://www.iris.sgdg.org/actions/smsi/hr-wsis/
Civil society reporting on the WSIS
http://www.worldsummit2005.org
(Thanks to Rikke Frank Joergensen, EDRI-member Digital Rights Denmark and co-chair of the Human Rights Caucus)
Apart from important budget/audit matters, there were three substantive issues discussed at the 2005 WIPO General Assemblies. The last few days were spent in closed "informal" sessions to hammer out agreements. All agreements were formally adopted by WIPO member states on 5 October 2005. With the report EDRI was also adopted as accredited observer to all the WIPO meetings.
1. How to proceed with discussions on a development agenda for WIPO.
A new committee, known as the Provisional Committee, will take charge of completing discussions on the outstanding proposals relating to a WIPO Development Agenda. The Committee will have two one-week sessions and will report to the General Assembly in September 2006. The deadline for submission of any new proposals shall be the first day of the first session of the Committee.
During this time, the Permanent Committee on Cooperation for Development (PCIPD) will cease to exist. (In practice, this makes no difference, because the PCIPD is not due to meet in 2006 anyway).
Hopefully the new Committee can continue substantive discussions on Member State proposals and will not get bogged down in issues of procedure. Civil society NGOs should maintain their presence in this new forum to ensure that the development agenda is cross-cutting and meaningful.
2. Whether to recommend a diplomatic conference (a high-level negotiation) for a Treaty on the Protection of Broadcasting Organisations
The Standing Committee on Copyright and Related Rights (SCCR) will hold two additional meetings to discuss the draft treaty text. The SCCR meetings will try to agree on a text so that the 2006 WIPO General Assembly can recommend the convening of a diplomatic conference in December 2006 or in 2007.
This is a compromise. Some countries wanted the 2005 General Assembly to already recommend a diplomatic conference. On the other hand, some developing countries didn't want a reference to a possible date for a diplomatic conference, before an agreement could be reached on whether to have a conference or not. One delegate commented that this could be a very undiplomatic conference! So the pressure remains for a Casting treaty. Opponents of a treaty have a lot of work to do for the next SCCRs (probably November 2005 and May 2006).
3. To progress work on the harmonisation of patent law, so-called Substantive Patent Law Treaty (SPLT).
There will be a three-day, informal open forum in Geneva in the first quarter of 2006 on all issues related to the draft SPLT. The forum will be balanced in terms of geography, viewpoints and technical expertise. This will be followed by a five-day meeting of the Standing Committee on Patents (SCP) and a further three-day informal session of the SCP to agree on a work programme for the committee. The SCP will report to the 2006 General Assembly.
WIPO was criticised in 2005 for organising regional consultations that were not open or did not reflect a range of viewpoints.
News report by the independent news source IP Watch (03.10.2005)
http://www.ip-watch.org/weblog/index.php?p=97&res=1024_ff&prin...
Assemblies of the Member States of WIPO : Forty-First Series of Meetings
http://www.wipo.int/meetings/en/details.jsp?meeting_id=8043
WIPO press releases
Member States Agree to Continue Discussions on Development (04.10.2005)
http://www.wipo.int/edocs/prdocs/en/2005/wipo_pr_2005_425.html
General Assembly Decides to Accelerate Work on the Protection of Broadcasting Organizations (03.10.2005)
http://www.wipo.int/edocs/prdocs/en/2005/wipo_pr_2005_424.html
Member States Agree on Work Plan for the Standing Committee on the Law of Patents (04.10.2005)
http://www.wipo.int/edocs/prdocs/en/2005/wipo_pr_2005_426.html
(Contribution by Teresa Hackett, EDRI-observer eiFL, Ireland)
Only twenty minutes were needed in the Spanish court of Seville in order to acquit the Spanish game programmer who was facing up to one year in prison for making a video-game that made fun of religious practices (see EDRI-Gram 3.19). After showing repent, and stating that his intention was not really to offend anyone, the judge decided to acquit him.
The case generated considerable interest outside of Spain. Up to Japan people created mirrors to download the game.
EDRI-gram 3.19, Spanish gaming programmer faces prison sentence
http://www.edri.org/edrigram/number3.19/gaming
(Contribution by David Casacuberta, EDRI-member CPSR-Spain)
On 28 September 2005 the Dutch Lower House commission on judicial affairs organised a public hearing about data retention, preceding the official debate on the need and usefulness of data retention on 5 October 2005. The commission invited two representatives from law enforcement, one from the telecom and internet world each as well as EDRI-member Bits of Freedom and the national data protection authority.
The MPs asked questions about the need and usefulness of data retention, and wanted to know if the measure was really necessary to fight crime or if less invasive measures could also be adequate, for example data preservation (of individual suspects). Two days before this hearing, the Lower House adopted the law on Computer Criminality II, translating the Cybercrime treaty and adding this quick freeze of data to the extensive Dutch arsenal of law enforcement powers.
The law enforcement representatives mentioned examples from the past to demonstrate that traffic data have been used successfully in major cases such as the investigation into the Hells Angels and a Chinese gang trafficking in human beings. Similar to the 65 cases described in the Erasmus report, the police had access to all the required data at the telecom providers, gravely undermining their call for mandatory data retention. Public prosecution officer Taco Stein admitted he could never prove any investigation would fail because of lacking traffic data.
Bits of Freedom (also speaking on behalf of the national Consumer Union) addressed the lack of effectiveness. "We can only spend the security euro once." BOF also examined the UK Presidency paper on the necessity of data retention in detail, explaining that in 3 of the 4 mentioned examples all the required data were available, given the fact the investigation into these cases of kidnapping and threats started within a few days.
The chairman of the Dutch DPA, Jacob Kohnstamm, said "It was an unprecedented step to record data about all citizens preventively, for the sake of law enforcement." He also said no proof was given of the added value of mandatory data retention. But when questioned by a Christian Democrat MP to what minimum list he could agree, in the end he provided the MPs with a list of 5 strong demands, regarding access, security and cost requirements. He said he was concerned about the proposal to store all the telecom traffic data in one central government controlled location, especially if there was no cost barrier preventing law enforcement from overusing the database.
The representative from the telecom industry, speaking on behalf of all 5 mobile operators, said he also failed to see any proof for the usefulness of data retention, but could agree to data retention if it was limited to data already stored by the industry.
During a 2 hour debate on the need and usefulness of data retention with Minister Donner today, the MPs remained opposed to the framework decision. A majority seemed satisfied with the Commission proposal, except for the open-ended Comitology procedure. Minister Donner defended the proportionality of storing internet data for 6 months by saying they were just as useful as telephony data, but given the high costs, it was more proportional to keep them shorter. But, he added, "once we have started with 6 months, and the data prove to be useful, we can easily extend that period to 1 year as well."
On 11 October both Houses of Parliament will discuss the agenda of the JHA Council on 12 October. Minister Donner admitted he had no chance at all of getting both houses to agree with the framework decision, but refused to ask his colleagues to withdraw the proposal and properly wait for the European Commission and Parliament to agree on the directive.
The EDRI and XS4ALL petition against data retention has attracted over 50.000 signatures, of which over 20.000 from the Netherlands (where the campaign was launched), over 6.000 from Germany and 5.750 from Finland. Runners-up in the daily country count are Bulgaria and Sweden (over 2.000 each), followed by Spain (almost 2.000), Austria (over 1.500). Italy, the UK, Belgium, France, Slovenia and the US respectively, have each contributed over a 1.000 signatures.
Currently, 77 organisations and companies have signed in support of the petition. The petition is now available in 20 languages.
The campaign continues to invite signatures and support throughout October 2005, when the Commission proposal is debated by the European Parliament. Meanwhile, the Council is still threatening to adopt a framework decision in the last official meeting this year, in December 2005, if the Parliament won't adopt data retention quick enough.
Petition
http://www.dataretentionisnosolution.com
http://www.stopdataretention.com
Petition WIKI
http://wiki.dataretentionisnosolution.com
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25 October 2005, Vienna, Austria
28 October 2005, Bielefeld and Prague, Germany and Czech Republic
29 October 2005, Zurich, Switzerland
Presentations of the Big Brother Awards
International ceremony schedule
http://www.bigbrotherawards.org/
1-2 December 2005, London, UK, Patenting Lives
Conference in the Queen Mary Intellectual Property Research Institute. The call for papers closes on 26 August 2005 and invites abstracts on topics such as Access to Knowledge, Consumer Aspects, Public Interest, Public Goods, Public Domain and Human Rights.
http://www.patentinglives.org/conference.htm