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Council continues limbo dance with the ePrivacy standards

It's been six-hundred-fifty-two days since the European Commission launched its proposal for an ePrivacy Regulation. The European Parliament took a strong stance towards the proposal when it adopted its position a year ago, but the Council of the European Union is still only taking baby steps towards finding its position.

By EDRi · October 24, 2018

In their latest proposal, the Austrian Presidency of the Council continues, unfortunately, the trend of presenting the Council with suggestions that lower privacy protections that were proposed by the Commission and strengthened by the Parliament. In the latest working document that was published on 19 October 2018, it becomes apparent that we are far from having reached the bottom of what the Council sees as acceptable in treating our personal data as a commodity.

Probably the gravest change of the text is to allow the storing of tracking technologies on the individual’s computer without consent for websites that partly or wholly finance themselves through advertisement, provided they have informed the user of the existence and use of such processing and the user “has accepted this use” (Recital 21). The “acceptance” of such identifiers by the user as suggested is far from being the informed consent that the General Data Protection Regulation (GDPR) established as a standard in the EU. The Austrian Presidency text will put cookies which are necessary for a regular use (such as language preferences and contents of a shopping basket) on the same level as the very invasive tracking technologies which are being pushed by the Google/Facebook duopoly in the current commercial surveillance framework. This opens the Pandora’s box for more and more sharing, merging and reselling citizen’s data in huge online commercial surveillance networks, and micro-targeting them with commercial and political manipulation, without the knowledge of the person whose private information is being shared to a large number of unknown third parties.

One of the great added values of the ePrivacy Regulation (which was originally intended to enter into force at the same point in time as the GDPR) is that it’s supposed to raise the bar for companies and other actors who want to track citizens’ behaviour on the internet by placing tracking technologies on the users’ computers. Currently, such an accumulation of potentially highly sensitive data about an individual mostly happens without real knowledge of individuals, often through coerced (not freely given) consent, and the data is shared and resold extensively within opaque advertising networks and data-broker services. In a strong and future-proof ePrivacy Regulation, the collection and processing of such behavioural data thus needs to be tightly regulated and must be based on an informed consent of the individual – an approach that becomes now more and more jeopardised as the Council seems to become increasingly favourable to tracking technologies.

The detrimental change of Recital 21 is only one of the bad ideas through which the Austrian Presidency seeks to strike a consensus: In addition, there is for instance the undermining of the protection of “compatible further processing” (which is itself already a bad idea introduced by the Council) in Article 6 2aa (c), or the watering down of the requirements for regulatory authorities in Article 18, which causes significant friction with the GDPR. With one disappointing “compromise” after another, the ePrivacy Regulation becomes increasingly endangered of falling short on its ambition to end unwanted stalking of individuals on the internet.

EDRi will continue to observe the developments of the legislation closely and calls everyone in favour of a solid EU privacy regime that protects citizens’ rights and competition to voice their demands to their member states.

Five Reasons to be concerned about the Council ePrivacy draft (26.09.2018)

EU Council considers undermining ePrivacy (25.07.2018)

Your ePrivacy is nobody else’s business (30.05.2018)

e-Privacy revision: Document pool (10.01.2017)

(Contribution by Yannic Blaschke, EDRi intern)