Free flow of data – what is it?

By EDRi · November 30, 2016

The “think tank” European Centre for International Political Economy (ECIPE) recently produced a database of “restrictions on data”. The database lists laws which, in ECIPE’s opinion, are barriers to trade in 65 economies worldwide, including the European Union, and it was produced apparently due to influence from “the business community”.

The database considers the EU Data Protection Directive 95/46/EC as a barrier to trade and a cross-border restriction on “data flows” in particular. One of the examples of such barriers is the Google Spain ruling. The description in the database is not entirely accurate, describing it as a right for individuals “to seek the deletion of links on search engines” about themselves if “the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed”. In fact, the “right” only covers searches done on the basis of an individual’s name and not a “deletion of links”.

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Similarly, the United States’ Millennium Copyright Act (DMCA), which reduces incentives for internet companies to delete content is also listed as a restriction on data. Illogically, failure to implement the broadly similar EU e-Commerce Directive in some countries is also listed as a barrier.

But things get even more peculiar. US internet companies in the Computer and Communications Industry Association (CCIA) are actively campaigning to have the right to restrict the communications of their users in a completely arbitrary way, without fear of any liability for unjustified restrictions on freedom of communication when they “voluntarily exceed their legal obligations”. The CCIA has also been lobbying for such a provision in the US and the EU and, coincidentally or not, the United States has now been pushing for this new, arbitrary restriction to be included in the Trade in Services Agreement (TiSA). TISA is currently being negotiated between the EU, the US and a variety of other members of the World Trade Organisation (WTO). At the same time as demanding this right to restrict the freedom of communication of internet users, the CCIA is also campaigning for the “free flow of data”.

Two of CCIA’s members are Google and Facebook, who can be assumed to be supportive of CCIA positions, including on the “free flow of data”. However, both of them have chosen to voluntarily implement the restrictive DMCA on a global level. This leads, for example, to Google voluntarily removing 77,1 million web addresses from its index for copyright reasons in the period 29 October 2016 to 29 November 2016.

Meanwhile, the European Commission seems to be strongly in favour of the “free flow of data”, as illustrated by numerous statements and speeches by Commission Vice-President Andrus Ansip. While insisting that this only refers to data “other than personal data”, several of the examples referred to relate explicitly to personal data. This strong Commission support for the free flow of data is being offered at the same time as restricting the proposed measures on text and data mining, at the same time as proposing that web hosting companies should implement upload filtering technologies and at the same time as Commissioner Günther Oettinger is praising the big telco “5G manifesto” that attacks net neutrality – and net neutrality is the very essence of free flow of data.

How is this possible? Humpty Dumpty has the answer:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

EDRi: New leaks confirm TiSA proposals that would undermine civil liberties (25.11.2016)

Joint industry letter on free flow of data (15.11.2016)

ESF Policy Committee letter on European Commission, Data Flows & EU Trade Policy

Google transparency report: Requests to remove content due to copyright

EDRi: EU Copyright Directive – privatised censorship and filtering of free speech (10.11.2016)

EDRi: ENDitorial: Is 5G as terrible as the telecoms providers claim it is? (27.07.2016)

(Contribution by Joe McNamee, EDRi)