self-regulation

A measure which would be illegal if implemented by a government should also be illegal if implemented by industry as a “voluntary” measure, as a result of government pressure or for public relations or anti-competitive reasons. However, as key international legal instruments, such as the European Charter of Fundamental Rights and the European Convention on Human Rights, as well as national constitutions are binding for states and governments, they are not directly applicable to other entities, such as private companies. As a result, there is a major trend towards governments persuading or coercing companies to impose restrictions on fundamental freedoms under the guise of “self-regulation,” thereby circumventing legal protections.

28 Nov 2014

Italian presidency abandons its net neutrality draft

By Joe McNamee

The Italian Presidency of the European Council has decisively distanced itself from the leaked proposals on net neutrality. In a post on its website, it explained that previously proposed texts (including the leaks) were “significantly different” from the position of individual Member States, “including Italy” and that it proposed them “to act as a neutral mediator under the Presidency rather than imposing its own point of view.”

After numerous rounds of technical discussions on how to resolve the outstanding issues on net neutrality (and roaming), it is the clear wish of the Italian presidency to move towards making a political decision on what is needed. Contrary to the position in the leaked draft, the Italian Presidency states clearly that “adequate regulation is needed” and unequivocally recognises the “financial barrier to new entrants” that “would stop innovation” in the absence of effective net neutrality rules.

While recognising the problems non-neutrality would cause for businesses, the Italian Presidency’s website post does not, however, even acknowledge the damage that would be done to the fundamental rights of European citizens if access providers were able to arbitrarily undermine the fundamental rights to send or receive information.

While the Italian statement is a step in the right direction, it is clear that the full scope of the issue has not yet been grasped. References to broadband as a universal service right are interesting but tangential to the discussion. The question is – broadband access to what? If the online environment is impoverished by internet access providers successfully creating a new monopoly right – granting or restricting access to their customers – then we move from an information superhighway to a road to nowhere.

In the meantime, the European Commission continues to promote “Swiss cheese” regulation on net neutrality – saying the right things in public while feverishly (despite its new mantra of “better regulation”) acting to build in loopholes – offering wording and arguments that would allow the creation of a new internet-based customer access monopoly, whether through price discrimination or manipulation of weak definitions.

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27 Nov 2014

European Parliament fights back hard on net neutrality

By Joe McNamee

After EDRi published a leaked draft by the Italian EU Presidency
to weaken proposals on net neutrality, the European Parliament has hit back with a strongly-worded resolution (see paragraphs 8 and 14). The final version will be linked here when available). The resolution was adopted with 458 in favour and 173 against.

The resolution re-asserts the Parliament’s view that strong net neutrality rules are needed, both for the fundamental rights, for innovation and competition.

The resolution calls for “more legal certainty” for net neutrality and stresses that “all internet traffic should be treated equally, without discrimination, restriction or interference, irrespective of its sender, receiver, type, content, device, service or application”.

“Treated equally” goes beyond a simple ban on blocking or throttling of services. It also covers, for example, price discrimination, where some online monopolies can be accessed without additional download charges, while users have to pay to access every other service.

Under price discrimination, the “internet” thereby becomes an impoverished shell pushing internet users into the hands of monopolies and excluding competitors. Unfortunately, price discrimination is increasingly common in Europe – to the detriment of freedom of communication and innovation.

In a separate development this week, Dutch Liberal Member of the European Parliament (MEP) Marietje Schaake prepared a strongly pro net neutrality letter to be sent to the Council. In just a few hours, she gathered the signatures of 130 MEPs (nearly 20% of the Parliament) demanding clear net neutrality rules “to foster innovation and competition”.

The European Commission’s position remains unclear. It claims to be in favour of net neutrality, but behind closed doors in EU Council discussions, it remains steadfastly wedded to the notion that restricting an online service by price discrimination is not a limitation on net neutrality. We doubt if an online start-up that is being forced out of the market due to price discrimination rather than due to being throttled would appreciate the Commission’s secret nuance.

The anti-net neutrality lobby took a further hit this morning in the EU Council, as several countries expressed their opposition to the Italian Presidency’s attempts to undermine the legislative proposal.

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26 Nov 2014

Press Release: Civil society urges the Council to adopt real Net Neutrality

By Heini Järvinen

The SaveTheInternet.eu campaign is mobilising EU citizens to contact their Council representative and tell them not to turn their backs on the Telecoms Single Market legislation.

The SaveTheInternet.eu coalition is sending a letter to the Council of the European Union urging support for strong and enforceable net neutrality provisions in the Telecoms Single Market regulation. The letter is part of a larger campaign on our website which will mobilise Europe’s citizens to put pressure on their national representatives in Council. The Council consists of representatives of the 28 EU Member States. After the strong vote in favour of net neutrality by the European Parliament in April of this year, the Council must now accept, reject or amend the proposal.

Earlier this year, the SaveTheInternet.eu campaign worked with the European Parliament, which adopted a regulation with strong net neutrality protections and which eliminated loopholes. At the moment, several Member States in the Council appear to be willing to undermine those provisions: the most recent proposal by the Italian Presidency removes the definitions and replaces the proposed binding powers with “simplified principles”. This is a net neutrality proposal without any net neutrality. If adopted, it will harm innovation in Europe and fundamental rights of European citizens.

“It is time for the European Union to make a positive choice to defend openness and freedom,” said Joe McNamee, Executive Director of European Digital Rights (EDRi). “The alternative is to limit freedom of expression, limit innovation and create borders, blockades and barriers in the global internet.”

We urge the Italian Presidency not to sacrifice the quality and the spirit of the text simply to be able to claim “success” in being able to close the file. The proposal as it is now would do more harm than good.

For more information, see the website of the campaign.

For interview requests and any additional information, please contact: heini.jarvinen@edri.org, tel. 00 32 2 274 25 70

For more information on the EU’s decision-making process, please see EDRi’s “Activist Guide to the Brussels Maze” at edri.org/papers.

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24 Nov 2014

Price discrimination – the Commission’s plan B to undermine net neutrality?

By Joe McNamee

The European Commission is energetically defending the “right” of telecoms operators to use price discrimination, arguing that this is not a breach of net neutrality.

In price discrimination, the telecoms company establishes itself as a monopoly “gatekeeper” of access to its own customers. In other words, big online companies like Google and Facebook can pay to have their services accessible “for free”, while other services are paid for per megabyte or gigabyte downloaded.

In other forms of non-neutrality, the telecoms company establishes itself as a monopoly “gatekeeper” of access to its own customers. That means that big online companies like Google and Facebook can pay for preferential treatment for its services, while others are excluded due to blocking or throttling of their services.

Put simply, in one case, the big telecoms operators are allowed to create a new monopoly (access to the operator’s customers) while, in the other, the big telecoms operators are allowed to create a new monopoly (access to the operator’s customers).

The Commission argues that there is a fundamental difference in practice between an online service being disadvantaged by blocking and being disadvantaged by price discrimination.

The Commission also believes that the telecoms operators will not be able to levy specific charges to pay for particular online services, such as Whatsapp or Skype. However, if it is “free” to use an operator’s partner service while the use of Skype risks incurring additional download charges (particularly in the mobile environment), then this has the effect of a specific charge being levied.

While the Commission argues that this discrimination is not discrimination and that it is not possible to implement this kind of discrimination anyway, the Digital Fuel Monitor listed 75 different examples of this kind of abuse happening in the market in Europe.

Of course, the Commission’s position on price discrimination is simply what it inherited from ex-Commissioner Neelie Kroes. The new Commission appears not yet to have developed a clear position (although this has not stopped Commission officials from continuing to push the old arguments).

On the one hand, Digital Agenda Commissioner Günther Oettinger appears to be distancing himself from the great success of telecoms liberalisation in Europe, arguing that the market should be consolidated (less competition!) and that the EU’s regulatory actions should be focussed on giving profits to telecoms operators.

On the other hand, the Commission Vice-President Andrus Ansip, with overall responsibility in this field seems to have very different views. He defended policies in his nomination hearing which are the opposite of the Commission’s current position – “All the traffic in the Internet has to be treated equally, nobody has [the] right to abuse their dominant position in the market or gate keeper’s position.” “Treated equally” clearly covers both in the network and also in the bills of consumers.

No gatekeepers. No discrimination. Thank you Vice-President. We couldn’t agree more.

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24 Nov 2014

Draft Commission Work Programme 2015: huge challenges for digital rights

By Kirsten Fiedler

EDRi has obtained a copy of the draft Commission Work Programme 2015. For those who have followed the nomination hearings of the Commissioners, this draft programme does not contain any major surprises. However, it does show the huge number of proposals and initiatives that will have a direct impact on our fundamental rights and freedoms in the coming years. Juncker’s aim is to adopt the Work Programme on 16 December in Strasbourg.

In a letter to the Commissioners, he explains that the draft Commission Work Programme consists of new initiatives, pending proposals and withdrawals of legislation – all with the aim of achieving his ten-point plan for Europe. In addition to the key list of initiatives and proposals, he invites all Commissioners to propose additional items – or to review the necessity of pending proposals – in light of the mission letters that were sent out along with the nominations in September.

Among the new initiatives in the draft list for 2015, in the work area of the “Connected Digital Single Market”, the document lists a “plan on cyber-security” and the already-announced reform of the E-Privacy Directive (once there is an agreement on the data protection reform).

Among the new major new initiatives that were initially proposed by the Secretariat General, the Commission announces a Digital Single Market Package (Q2 2015) and a proposal on copyright reform (2015). As we have pointed out on many occasions, copyright rules are no longer fit for the digital age and a move away from failed repressive measure towards a comprehensive reform would be more than welcome.

Furthermore, the document mentions a “possible amended proposal for Telecoms package” – which might include yet another effort at undermining net neutrality rules. Currently, the EU Member States (in the Council) is discussing the Telecoms Single Market Regulation and may delete some of the pro-net neutrality rules adopted by the European Parliament (EP). If the Regulation is amended to weaken those rules, we will have to work hard to ensure that the EP stands behind its decision and its defence of an open Internet.

Furthermore, the Commission announces its work on a “reasonable and balanced” Free Trade Agreement with the US (TTIP) – a peculiarly defensive wording. Why refer to the need for TTIP to be “reasonable and balanced” other than because the risk of this not being the case? This will be certainly one of the most important dossiers for digital civil rights that EDRi will be dealing with in the coming year. This is not only true for general concerns regarding the transparency of the negotiations but also with regard to the possible inclusion of data protection, protections for vigilantism by internet companies and copyright provisions.

In the area of Justice and Fundamental Rights, the Commission announces the long awaited accession to the European Convention on Human Rights (ECHR) and the conclusion of negotiations on a comprehensive data protection agreement with the US. Conclusion of these two sets of negotiations would market the end of a long process. Accession of the European Commission to the ECHR would be an historical step and is an important re-affirmation that any kind of restriction of fundamental rights needs to be “prescribed by law” (Article 10(2) ECHR).

Lastly, we welcome the announcement of Commission’s work aimed at increasing transparency of the institutions. The draft programme mentions the introduction of an Inter-Institutional Agreement (IIA) to create a mandatory lobby register for the EP, the Council and the Commission. This step is certainly long overdue. The previous Commission developed some atrocious habits on transparency, making access to documents unnecessarily bureaucratic and difficult – we would welcome any moves to consign this approach to history.

There is more than enough work for European Digital Rights in this new legislature. While the Commission is finalising its work programme, European Digital Rights started working on a public fundraising campaign which will be launched in the coming weeks. Now more than ever, EDRi needs your support to continue defending and promoting your rights and freedoms at EU level.

Draft Commission Work Programme 2015: https://edri.org/wp-content/uploads/2013/09/CWP-2015-en.pdf

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20 Nov 2014

Leaked documents show net neutrality may be in danger!

By Maryant Fernández Pérez

On 14 November 2014, the Italian Presidency presented amendments to the Telecommunications package for comment by the Member State delegations. We are hereby making the document and its annexes publicly available (Note and addendum). These documents show that the Italian Presidency is now back-pedalling on meaningful net neutrality protections – having previously made some much more meaningful and positive suggestions. It presented a “principles-based approach” to the Member States “in order not to inhibit innovation and to avoid” having an outdated regulation in the future. In reality, all the text would do is add confusion for freedom of communication and online innovation.

The text proposes the removal of the definitions of “net neutrality”. “Instead of a definition of net neutrality there could be a reference to the objective of net neutrality, e.g. in an explanatory recital, which would resolve the concerns that the definition might be at variance with the specific provisions.” Yet, without meaningful and enforceable net neutrality provisions, the fundamental right to receive and impart information would be hindered – with significant costs for growth, investment and innovation.

Additionally, the text removes the definition of “specialised services” from Article 23. The deletion would in principle not be such a bad idea, as long as non-discrimination was clearly supported by the text. Sadly, the proposal would achieve the opposite:

“Traffic management measures that block, slow down, alter, degrade or discriminate against specific content, applications or services, or specific classes thereof” could be maintained by providers of Internet access services under certain circumstances, such as to “prevent the transmission of unsolicited communications” (which seems strange because an e-mail service is not an internet access service); to prevent “temporary congestion control” (whose exceptional nature should be clarified not to be the default); or to meet their “obligations under a contract with an end-user to deliver a service requiring a specific level of quality to that end-user” (which makes little sense in the “best effort” Internet).

The biggest gap in the Council text however is that Article 23 fails to prohibit discrimination on the basis of billing. Allowing “free” access to certain services and metered access to everything else is as much – and as damaging – an infringement of net neutrality and the fundamental right of freedom to impart information, as any blocking or filtering. If people have to pay extra to access your website (or if you have to pay internet companies to allow them to do so), then the essence of the open internet has been dismantled.

The proposal also makes a bizarre reference to the legislation being without prejudice to the lawfulness of “information, content, application [sic] or services” – even though nothing in the text could possibly be understood as legalising illegal content. The purpose of this text appears to permit the widespread arbitrary “voluntary” blocking practised in some EU Member States, most notably the United Kingdom. If this is the meaning, then it is in clear and obvious breach of the EU Charter of Fundamental Rights.

In sum, this last proposal of the Italian Presidency would weaken citizens’ rights and annul the strong provisions adopted by the European Parliament in April 2014. If adopted, the text would lack the much needed protections to prevent internet access providers from creating a new monopoly – access to their customers. With all of the talk of the need for a single digital market in Europe, we would have new barriers and new monopolies.

National regulators would not have clear enforceable obligations to preserve citizens’ digital rights and freedoms by default. After Obama’s recent declarations emphasising the importance and need of real net neutrality, is the Council going to suggest leaving Europe in the slow lane?

The Member States are and will be discussing this document in the Council today and tomorrow. Any text that is adopted would need to be approved by the European Parliament before becoming law.

Leaked documents (14.11.2014)
Note: https://edri.org/wp-content/uploads/2013/09/Note-NN-14.11.2014.pdf
Addendum: https://edri.org/wp-content/uploads/2013/09/Addendum-to-the-note-14.11.2014.pdf

The Members States will discuss it in the Council today and tomorrow
http://data.consilium.europa.eu/doc/document/CM-5045-2014-INIT/en/pdf (17.11.2014)
http://data.consilium.europa.eu/doc/document/ST-15597-2014-COR-1/en/pdf (19.11.2014)

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19 Nov 2014

ENDitorial: Transparency in TTIP? Yes, but in practice, please!

By Maryant Fernández Pérez

The EU and the US are currently negotiating the Transatlantic Trade and Investment Partnership (TTIP), which is a wide-ranging agreement likely to affect digital rights and freedoms. Lack of transparency is at the core of the criticism regarding the negotiations surrounding TTIP and the conclusion of a flurry of free trade agreements.

The TTIP negotiations officially started more than one year ago. In June 2013, the Council of the European Union provided the European Commission with the directives for the negotiations. Nevertheless, the mandate was not officially published until sixteen months later, on 9 October 2014. Many EU and national politicians have praised its publication for bringing greater transparency to the process. However, they appear to have conveniently “forgotten” what the former EU Commissioner for Trade, Karel De Gucht, recognised when referring to the mandate before the European Parliament on 15 July 2014: “By the way, everybody has it. It is on the Internet. So what are you talking about?” If publishing something that is already public is “transparency”, we are not heading in the right direction.

Due to the concerns raised by civil society and the increasing opposition to the TTIP, the European Ombudsman launched a public consultation. The European Ombudsman is currently analysing the 300 responses (including EDRi’s) and the 6 000 emails received regarding TTIP. In EDRi’s response, we identified areas for improvement, suggested changes and asked the European Ombudsman to extend her inquiries to other free trade agreements.

Contradictions regarding the secrecy/openness of the negotiations continue to appear not only in TTIP, but also in other free trade agreements negotiations. To the question “Are [Trade in Services Agreement, TiSA] negotiations secret?”, for instance, the Commission responded “No. Trade negotiations are not held in public, but they are not secret.” Actively withheld from the public but not secret – it is hard to see the difference. To our knowledge, the very first document for opening the negotiations still has not been published. The mandate for the TiSA was approved by the Council of the European Union in March 2013, before the TTIP’s mandate. Why is the TTIP mandate now made “public” and not the others? Is it because the TiSA mandate has not leaked yet?

The European Commission, the Council and the Member States seem to have realised the need for transparency. According to a document published by the Council, they want to do so by strengthening their communication, “explain[ing] the basics of the negotiations and [addressing] criticism”. However, transparency is not itself achieved by having more proficient spin doctors telling people that they know what they don’t know. Transparency is achieved by opening the negotiations to the public. Otherwise, mistakes seen in the ACTA negotiations may be repeated.

The new EU Trade Commissioner, Cecilia Malmström, has announced a “fresh start” in the TTIP negotiations. We welcome such approach in practice, not only for the TTIP, but for all free trade agreements – to the benefit of democracy and good policy-making.

EDRi’s response to the European Ombudsman’s Public Consultation on transparency in the TTIP negotiations (31.10.2014)
http://edri.org/files/ttip_consultation.pdf

Minutes of the TTIP debate at the European Parliament (15.07.2014)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20140715+ITEM-009+DOC+XML+V0//EN&language=EN

Leaked negotiating mandate for the TTIP (18.09.2013)
http://www.s2bnetwork.org/fileadmin/dateien/downloads/EU-TTIP-Mandate-from-bfmtv-June17-2013.pdf

TTIP’s Mandate declassified (09.10.2014)
http://data.consilium.europa.eu/doc/document/ST-11103-2013-DCL-1/en/pdf

(mis)Communicating TTIP (10.11.2014)
http://corporateeurope.org/international-trade/2014/11/miscommunicating-ttip

Malmström plays transparency card, but gets timid applause (30.09.2014)
http://www.euractiv.com/sections/eu-priorities-2020/eu-trade-candidate-plays-transparency-card-gets-timid-applause-308793

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19 Nov 2014

UN calls for balance between privacy and security

By Heini Järvinen

In a special discussion at the Human Rights Council in Geneva, Flavia Pansieri, the United Nations (UN) Deputy High Commissioner for Human Rights, expressed her concern about increasing mass surveillance programs conducted by states and private corporations. Ms. Pansieri highlighted the importance of demonstrating that interferences with an individual’s right to privacy are both necessary and proportionate to address the specific identified security risk.

“Mandatory third-party data retention – where telephone companies and internet service providers are required to store metadata about communications by their customers, for subsequent access by law enforcement and intelligence agencies – appears neither necessary nor proportionate,” she said.

Ms. Pansieri’s call is one of the several attempts by the UN to tackle the issue. In June 2014, the High Commissioner for Human Rights published a report “The right to privacy in the digital age”, to respond to the global concern at certain surveillance practices and the threat they pose for human rights. The report gives examples of digital surveillance used to target political opponents or dissidents, and cases in which governments have demanded the access to traffic on the networks of telecom companies, threatening to otherwise ban their services. It recognises the necessity for surveillance of electronic communications, conducted in compliance with the law, for legitimate law enforcement or intelligence reasons, but points out that mass surveillance programs “raise questions around the extent to which such measures are consistent with international legal standards and whether stronger surveillance safeguards are needed”.

Another report, published in September 2014, focuses on the implications of mass digital surveillance for counter-terrorism purposes to the right to privacy. Ben Emmerson, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, presented the report in the UN General Assembly on 23 September, saying that

“states need to squarely confront the fact that mass surveillance programmes effectively do away with the right to online privacy altogether”.

In the report Mr. Emmerson draws attention to the fact that states are able to easily maintain an overview of Internet activity of specific individuals or organisations, and that it’s possible without any prior suspicion related to them. He reminded that this kind of surveillance “amounts to a systematic interference with the right to respect the privacy of communications and requires a correspondingly compelling justification”. The report concludes that “merely to assert – without particularisation – that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use”.

In 2013, the UN General Assembly adopted a resolution (68/167) on the right to privacy in the digital age. The final report prepared by the High Commissioner for Human Rights is expected to be presented at the UN General Assembly in 2015. It will be contributing to the development of an international convention on surveillance issues by giving recommendations and clarifying principles, standards and best practices to allow states to defend their safety respecting the international human right laws.

UN against mass surveillance on the Internet (only in French, 17.11.2014)
http://www.numerama.com/magazine/31291-l-onu-contre-la-surveillance-massive-sur-internet.html

Mass surveillance: exceptional measure or dangerous habit? (13.11.2014)
http://www.ohchr.org/EN/NewsEvents/Pages/MassSurveillance.aspx

UN General Assembly: Promotion and protection of human rights and fundamental freedoms while countering terrorism (23.09.2014)
https://docs.google.com/document/d/18U1aHmKx9jfDQjCZeAUYZdRjl6iF4QjuS_aJO2Uy7NY/edit?pli=1

The right to privacy in the digital age – Report of the Office of the United Nations High Commissioner for Human Rights (30.06.2014)
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf

UN special rapporteur slams US, UK spying on Internet users (24.10.2014)
http://www.presstv.ir/detail/2014/10/24/383415/un-slams-west-spying-on-internet-users/

Right to online privacy at risk as governments engage in mass surveillance – UN expert (23.10.2014)
http://www.un.org/apps/news/story.asp?NewsID=49156

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19 Nov 2014

Obama urges the FCC to adopt rules to ensure net neutrality

By Heini Järvinen

In a speech on 10 November, US President Barack Obama made a strong statement calling for net neutrality. He urged the Federal Communications Commission (FCC) to adopt rules to prevent Internet access providers from blocking or slowing down content, and from charging service providers to let them use a “fast lane” to reach their clients.

Obama emphasised the importance of a free and open Internet, stating that its effects on Americans’ lives can be compared to phone service or electricity, and consequently broadband services should be regulated as any other public utility. Obama suggested that the provision of internet service should be placed under Title II regulation of the Telecommunications Act, which regulates how common carriers must conduct business across all forms of communication in order to act “in the public interest”. This re-classification is a long-standing demand of net neutrality proponents.

“I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online,” Obama said is his video statement. “If carefully designed, these rules should not create any undue burden for Internet Service Providers (ISPs), but combined, these rules mean everything for preserving the Internet’s openness.”

FCC Chairman Tom Wheeler responded to Obama’s call shortly after it had been published, in a previously scheduled meeting with the major Internet companies. He expressed his support to the principle of upholding “an open platform for free expression, innovation and economic growth”, but argued that the concerns of access providers have to be taken into consideration as well, and that the approach adopted should “withstand any legal challenges it may face”. He repeatedly highlighted the fact that the FCC is an independent agency, and makes its own decisions independently of the president’s proposals.

It still remains to be seen if the FCC will listen to Obama’s recommendations. However, they represent an important step towards real net neutrality protections globally. It is now crucial that Europe does not find itself left in the slow lane in the race for an adoption of urgently needed net neutrality rules.

Obama asks FCC to adopt tough net neutrality rules (10.11.2014)
http://www.nytimes.com/2014/11/11/technology/obama-net-neutrality-fcc.html?_r=0

EFF: The White House Gets It Right On Net Neutrality. Will the FCC?
https://www.eff.org/deeplinks/2014/11/white-house-gets-it-net-neutrality-will-fcc-0

FCC chair said to balk at Obama’s net neutrality plan (11.11.2014)
http://www.cnet.com/news/fcc-chair-said-to-weigh-deviation-from-obamas-net-neutrality-plan/

Pressure mounts on FCC chief over net neutrality rules (12.11.2014)
http://www.nytimes.com/2014/11/13/technology/pressure-mounts-on-fcc-head-over-open-internet-rules.html

The split between Obama and the FCC on net neutrality, in plain English (12.11.2014)
http://www.washingtonpost.com/blogs/the-switch/wp/2014/11/12/the-split-between-obama-and-the-
fcc-on-net-neutrality-in-plain-english/

Questions and answers about Obama’s open Internet plan (13.11.2014)
http://www.usatoday.com/story/money/business/2014/11/13/net-neutrality-qa-after-obama-proposals/18986935/

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19 Nov 2014

Denmark plans to use PNR data for increased Schengen border control

By Guest author

In Denmark, there is currently a public consultation for a new draft law which aims at improving the border checks at Denmark’s Schengen borders. Formally, the Schengen Border Code has abolished border checks at EU’s internal borders, but, under Article 21, member states are still allowed to carry out identity checks in the border territory, as long as the process is clearly distinct from systematic checks on persons at the external borders. In practice, this means that only spot checks are allowed at Schengen borders.

The draft law introduces a new legal framework for checking foreigners for illegal residence in Denmark. This part is inspired by Articles 4.17a and 4.17b of the Dutch decree on foreign nationals of 2000 (Vreemdelingenbesluit 2000), as well as a couple of recent judgments from the Court of Justice of the European Union (CJEU) clarifying the Schengen restrictions on identity checks in the border territory (C-188/10, C-189/10 and C-278/12).

Moreover, the Danish police will be allowed to use “intelligence-led policing” methods for improving the efficiency of the border control (identity checks). This involves collecting personal data on citizens passing the border and using that data for profiling and risk assessments of illegal immigration.

For citizens entering Denmark by car, automatic number plate recognition (ANPR) technology will be used. In a report about border control published in October 2014, the Danish Ministry of Justice cited a statement from the European Commission that the Dutch use of ANPR technology for control purposes in the border territory was not inconsistent with the Schengen Border Code.

ANPR will be used for counting the number of foreign motor vehicles entering Denmark (anonymously, it is claimed) for statistical purposes, and during specific time periods, the number plates of all foreign motor vehicles will be retained for further analysis. These number plates will be checked against Europol databases of wanted motor vehicles. It is also possible that the historic travel pattern of an individual motor vehicle will be used for the police analysis, for example the number of times that the motor vehicle has entered Denmark from Germany. A Danish police director has made statements to the media which could suggest that this type of individual profiling will be used. The Danish police is currently in the process of seeking approval of their ANPR plans with the Danish Data Protection Authority, so the specific use of ANPR could change. Barbara Körffer from the Schleswig-Holstein data protection authority (ULD) has expressed her concerns about the Danish ANPR plans in border areas in an interview with a daily newspaper Flensborg Avis on 18 October, as a similar surveillance scheme for Schleswig-Holstein was found unconstitutional in 2008 by the Federal Constitutional Court of Germany (BVerfG), but the preliminary reaction towards the ANPR plans from the Danish Data Protection Authority has been more forthcoming.

Border control at Danish airports for Schengen flights will also be based on data analysis of travellers, and passenger name records (PNR) will be used for that purpose. The draft law amends the Danish Alien Act with a new section that authorises the Minister of Justice to lay down rules for police access to PNR data in booking systems of airlines with flightsfrom other Schengen countries to Denmark.

The commenary of the draft law do not include a precise list of the specific PNR data which can be collected, for how long the PNR data can be retained by the Danish police, or an exhaustive list of purposes for which the PNR data can be processed. The comments only state that the purpose is risk assessment of illegal immigration, and among other things this will be based on information about suspicious ticket purchases and travel routes. It is not entirely clear from the comments of the draft law whether the data analysis will include profiling of individual passengers or just profiling of flights, but since ticket purchases and travel routes of passengers are mentioned specifically, some element of personal data processing is involved in the profiling scheme. Needless to say, the collection of PNR data is also processing of personal data.

In 2006, the Danish Parliament passed two laws granting police direct access to PNR data in the booking systems of airlines for, respectively, external border control (Alien Act) and anti-terror investigations. However, in 2012 the Ministry of Justice concluded that booking systems of airlines were too diverse, and that the planned pull method would not work. Instead, the Ministry of Justice wanted to wait for the adoption of the EU PNR Directive which is based on a push method with a standardised data format.

Against the background of the extensive rights of Danish police with regard passenger data, it is rather astounding that the Danish government now plans to introduce a new pull-method access to PNR data, this time for the purpose of checking (some) Schengen flights for illegal immigration. There are no comments in the draft law about earlier technical problems, or the apparent change of strategy in 2012 to await the possible adoption of the EU PNR Directive and a European-wide push-method system for exchange of PNR data.

The new Danish PNR initiative comes at a time when the PNR issue is becoming a hot topic at the European level. The UK government also wants access to PNR data from other EU Members States, but some are refusing, among them Germany. According to a recent article in the Guardian, the UK government is threatening to impose bans on airlines which refuse to hand over passenger lists in advance for British security screening.

Draft law with amendments of the Alien Act for more effective control in border areas and airports (only in Danish, 07.11.2014)
http://hoeringsportalen.dk/Hearing/Details/42124

EDRi-gram: Denmark about to implement a nationwide ANPR system (02.07.2014)
https://edri.org/denmark-implement-nationwide-anpr-system/

More surveillance at the Danish border, Flensborg Avis (paywall, only in Danish with German summary, 18.10.2014)
http://www.fla.de/artikel/Mere-dansk-graense-overvaagning-18cbc.html

German airlines face ban on UK landings without passenger lists, The Guardian (05.11.2014)
http://www.theguardian.com/world/2014/nov/05/german-airlines-uk-passenger-lists-home-office-eu-data-protection-legislation-security-screening

(Contribution by Jesper Lund, EDRi-member IT-Pol, Denmark)

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