02 May 2016

BREAKING: TTIP leaks confirm dangers for digital rights

By Maryant Fernández Pérez

Today, Greenpeace has unveiled documents on the Transatlantic Trade and Investment Partnership (TTIP), including the telecommunications chapter and EU’s Tactical State of Play of March 2016.

The leaks show an ideological drive towards deregulation and law enforcement by private companies

, said Joe McNamee, Executive Director of European Digital Rights (EDRi).

This would sweep away key European success stories such as open and competitive telecommunications markets and a legal framework based on transparency and the rule of law

, he added.

EDRi has analysed two of the leaked TTIP documents, the Telecommunications Chapter and the Tactical State of Play. Some of our most important concerns include:

Telecommunications Chapter

  • “Article X.5: Regulatory Flexibility” would give new and excessive powers to telecom regulators, including the power for any national telecom regulator to stop applying EU legislation on a service that the EU or an EU Member State “classifies as a public telecommunications service”. Regulators would have the power to ignore democratically agreed laws if it decided, entirely at its own discretion, that the enforcement was not needed to “prevent unreasonable or discriminatory practices” or, to protect consumers, for example.
  • “Article X.6: Review of legislation” is even worse, as it gives telecom authorities the power to repeal or modify EU legislation, without any democratic accountability or responsibility.
  • Article 48 refers to the confidentiality of electronic communications. While the provision states that both the EU and the USA have to ensure the confidentiality of electronic communications and related traffic data, they should do this “without restricting trade in services”. Would a data protection or privacy measure constitute a trade restriction? This point remains far from clear. What we do know is that decisions on whether data protection and privacy rules are acceptable would not be decided by the European Court of Justice and would not need to take our fundamental rights into consideration.

EU’s tactical State of Play (March 2016)

While the European Commission claims to be very transparent in its reports, the public receives a non-complete state of play after each round of negotiations. The leak is a real, internal state of play on the negotiations, clearly reflecting the lobbying efforts of certain parts of industry from both sides of the Atlantic. A first reading of the leak has allowed us to identified developments on digital rights that are worrisome:

  • Regarding data flows, no progress has been, probably because of the current discussions on the equally flawed EU-US “Privacy Shield”. The document states that these talks might be accelerated because US telecom companies are “very interested in data flows”.
  • On encryption, it says that the EU and the US are discussing similar wording as the one used in the Trans-Pacific Partnership (TPP). This is bad news, as explained by EDRi-member EFF.
  • Concerning so-called “Intellectual Property” (IP), the negotiators seem to take lobbyists’ wish list very seriously. According to the leaked report, “[w]hen confronted with EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders” (which would apparently not include citizens) “and has very limited chances of being accepted”, the US seemed to be prepared to depart from the model of the TPP. Among the proposals the US is thinking of tabling, it includes privatised enforcement measures, that EDRi has been criticising since its inception because they bypass the rule of law and lead to arbitrary corporate decision-making without accountability (cf. “voluntary stakeholder initiatives”). As with ACTA, the US is strongly supportive of “voluntary initiatives” as US-based global giants already impose US copyright law on a global level. The EU (as shown by the recent leak of the Communication on Platforms) supports this approach.

In the leaks analysed by EDRi, there is no single mention of the public, NGOs or civil society in general.

Background information:

TTIP leak: Electronic communications / Telecommunications Chapter
http://ttip-leaks.org/agamemnon/doc4.pdf

TTIP leak: EU’s Tactical State of Play (March 2016)
http://ttip-leaks.org/pandaros/doc16.pdf

EDRi’s red lines on TTIP
https://edri.org/files/TTIP_redlines_20150112.pdf

EDRi booklet: TTIP and Digital Rights
https://edri.org/files/TTIP_and_DigitalRights_booklet_WEB.pdf

TTIP Resolution: document pool
https://edri.org/ttip-resolution-docpool/

Twitter_tweet_and_follow_banner

close
08 Jul 2015

TTIP Resolution: what did the Parliament say about Digital Rights?

By Maryant Fernández Pérez

On 8 July, 2015, the European Parliament finally adopted a resolution on the Transatlantic Trade and Investment Partnership (TTIP). The TTIP resolution contains non-binding recommendations to the Commission regarding digital rights, among other topics.

At the beginning of 2015, EDRi published its red lines, which was later developed into a booklet “TTIP and Digital Rights”. On 8 July 2015, the Parliament did not fully listen to the concerns raised by many citizens. There are positive aspects to highlight, but the European Parliament’s Resolution breached some of EDRi’s red lines.

1. Transparency and democracy
The Parliament acknowledges that the lack of transparency has “led to deficiencies in terms of democratic control” on the TTIP negotiations. However, the Parliament rejected amendments to increase the transparency needed in the TTIP negotiations – to the detriment of democracy. We fully support the European Ombudsman’s decision of 6 January 2015 and her recent who request for more transparency, especially from the US side.

2. Investor-to-state dispute settlement (ISDS)
Unfortunately, the Parliament voted to change ISDS for a “new” system, which could still repeat the flaws of ISDS.

ISDS_20150708

3. Guarantee the rule of law
Whereas both the Civil liberties and the Legal Affairs Parliamentary Committees recognised the importance of the rule of law in their respective opinions, the Resolution does not even mention the rule of law. The Parliament recommended that the Commission protect the EU’s right to regulate, but the recommendations regarding the so-called “regulatory cooperation” still raise concerns regarding the chilling effects it may cause to the EU’s legal and political framework.

4. Human Rights clauses
We welcome the Parliament’s call for the Commission to include a “legally binding and suspensive human rights clause”. We regret that the Parliament did not want to clarify what this means, as it rejected Amendment 80, which fully represented EDRi’s red line on human rights clauses.

5. “Intellectual property”
The European Parliament failed to follow the strong opinion of the Legal Affairs committee to exclude copyright, trademarks and patents from the negotiations.

6. Data protection
We welcome the European Parliament’s call to include a horizontal self-standing clause in TTIP to exclude the current and future EU Data protection legislation from being traded in TTIP. However, the Parliament failed to ask the Commission to refrain from negotiating on the flow of personal data in trade agreements, as the Parliament’s Civil Liberties Committee had requested.

7. Surveillance and Privacy
We welcome that Parliament reiterated that its consent to TTIP could be endangered if US mass surveillance programmes are not “completely abandoned”. Additionally, the European Parliament had the possibility to recommend the Commission to exclude “encryption standards, or the certification thereof, in the TTIP agreement, since there is no economic benefit to be derived, but rather a serious potential economic and societal loss”, but that amendment was rejected.

8. Net neutrality
The European Parliament avoids mentioning net neutrality in TTIP’s resolution, which seems reasonable for EDRi.

In sum, this resolution did not suffer many changes as compared to the report adopted in the International Trade Committee (INTA). TTIP’s resolution is just a political indication for the Commission and the world. Ultimately, the European Parliament will say yes or no to the TTIP once negotiations are concluded. In the meantime, it is important not to lose track of the negotiations and the conclusion of other agreements, such as CETA (the Comprehensive Economic and Trade Agreement between Canada and the EU) or TiSA (the Trade and Services Agreement).

Twitter_tweet_and_follow_banner

close
01 Jul 2015

Belgian coalition demands suspension of the TTIP negotiations

By Heini Järvinen

On 26 June 2015, the Belgian EDRi member Liga voor Mensenrechten, together with a wide coalition of other Belgian human rights and consumer organisations, trade union confederations, and environmental and development NGOs, published a declaration asking for an immediate suspension of the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) that are currently ongoing between the United States (US) and the European Union (EU).

The declaration calls for the suspension of the negotiations above all for the defence of fundamental freedoms and rights. One of the main concerns mentioned in the declaration is the risk of suppression of existing European regulation concerning data protection, which would mean undermining the respect of privacy, for economic reasons. The text also mentions a number of other threats that TTIP is posing to Belgian and European citizens, such as the potential negative impact on employment, the healthcare sector, consumer safety, and social and environmental standards.

The coalition emphasises that the negotiations simply cannot continue within the current framework, and that if the negotiations were to be restarted, a fundamentally different mandate has to be adopted. The mandate should not include clauses for Investor-State Dispute Settlement (ISDS), an instrument of public international law giving multinational companies the right to sue states and challenge legislation before special tribunals, if they believe their expected profits are being undermined. There should not be harmonisation of regulations that could lead into lower social standards or consumer and environmental protection, and the highest priority should be given to promoting public services, general interest and citizens’ rights, rather than trade and financial interests.

The need for a truly transparent and democratic process is also highlighted in the declaration. This would require that the negotiation texts and agenda are shared with national governments and civil society organisations, and that they are regularly consulted for their views. Also precise impact assessments to evaluate the effects of the negotiated measures should be conducted.

Lastly, the declaration points out that TTIP is not the only trade agreement under discussion, but that other similar agreements, such as the Comprehensive Trade and Economic Agreement (CETA), a draft treaty between EU and Canada, likely to come up for ratification before to TTIP, that are similarly undermining European citizens’ fundamental rights and our democracy.

Transatlantic trade agreements: Belgian civil society united against deregulating and non democratic trade agreements (only in French, 26.06.2015)
http://www.cncd.be/IMG/pdf/declarationcommunettip-ceta-be.pdf

Immediate suspension of the TTIP negotiations (only in Flemish, 26.06.2015)
http://www.mo.be/opinie/onmiddellijke-opschorting-van-de-onderhandelingen-over-ttip

EDRi-gram_subscribe_banner

Twitter_tweet_and_follow_banner

close
08 Jun 2015

TTIP and Digital Rights

By Heini Järvinen

The Transatlantic Trade and Investment Partnership (TTIP – pronounced “tee-tip”) is a draft trade agreement being negotiated between the United States (US) and the European Union (EU).

This booklet presents the concerns that EDRi and its members have regarding TTIP, such as the lack of transparency in the negotiations, respect for the rule of law and democracy, data protection, privacy, “intellectual property”, net neutrality, and Investor-state dispute settlement (ISDS), which would give rights to foreign companies to claim compensation from governments, undermining democracy and the right to legislate.

It is also available in Italian, as well as in Greek thanks to Simos Dalkyriades, and Dutch thanks to Bits of Freedom, Greenpeace, Marnix de Bil, Arend Jan Wiersma, Kitty Snieders and Lut Waeben.

close
08 Jun 2015

TTIP and Digital Rights: the Booklet

By Maryant Fernández Pérez

Today, European Digital Rights (EDRi) is publishing its latest booklet, “TTIP and digital rights”:

TTIP_and_DigitalRights_booklet_cover
The Transatlantic Trade and Investment Partnership (TTIP) is a trade agreement that is currently being negotiated between the United States and the European Union. TTIP has already raised many concerns among civil society, trade unions, consumer groups, some businesses, and European and national institutions.

From a digital rights perspective, EDRi and its members have identified several threats to transparency, democracy, the rule of law, the fundamental rights to privacy and data protection, net neutrality and to human rights in general.

Accordingly, EDRi decided to publish a booklet explaining EDRi and its members’ concerns and TTIP’s red lines. The booklet is structured in eight chapters, accompanied by an introduction and a conclusion with possible outcomes:

1. Insufficient transparency and democratic deficit: not a good starting point.
2. Regulatory Cooperation: adding bureaucratic hurdles as a way of removing bureaucratic hurdles.
3. TTIP & Data Protection: secrets and lies.
4. Surveillance and encryption: no to entangled alliances.
5. Copyright and other IP rights in TTIP: Interference with the EU’s democratic process.
6. TTIP & Net neutrality: is this the end of Internet as we know it?
7. ISDS: Incompatible with democratic rule of law.
8. A Human Rights clause must be meaningful.

You can download the booklet here (pdf). You can also find it, along with other EDRi papers, here: https://edri.org/papers/

Twitter_tweet_and_follow_banner

close
28 May 2015

Parliament Committee adopts a disappointing position on TTIP

By Heini Järvinen

The European Parliament’s Committee on International Trade (INTA) adopted this morning a position on the planned “Transatlantic Trade and Investment Partnership” (TTIP) between the United States and the European Union.

“We are delighted with the campaigning activity surrounding this vote,” said Joe McNamee, Executive Director of European Digital Rights. “It is clear that Europe’s citizens will not accept any agreement that prioritises short-term economic interests over fundamental rights. Even if we did not get the outcome we wanted, civil society has made its voice heard. The campaign will be one hundred times bigger when it comes to the real vote – the European Commission and Parliament know this and we are confident that the message is slowly being understood – citizens concerns must be taken into account.”

Current negotiations cover tariffs, standards in a wide range of industrial and service sectors, “regulatory cooperation” for future legislation and the setting up of an “Investor-state dispute settlement ” (ISDS) mechanism, which allows companies to sue governments in front of private arbitral courts. TTIP goes far beyond normal Free Trade Agreements (FTAs), as it contains provisions on standards and legislative harmonisation. This will have an impact on a number of other fields, such as data protection, copyright and surveillance, which could pose a threat to digital civil rights.

We welcome the position INTA took on human rights clauses, and its call for improved transparency, even if they still fail to call for a transparency-by-default approach. The Committee’s acknowledgement of the EU Ombudsman’s position on this issue is also to be welcomed.

However, INTA failed to take a strong position in a number of issues. On ISDS, the Committee’s position does not reflect citizens concerns, nor the advice of their colleagues from the Legal Affairs Commitee (JURI). The same applies to the text adopted on copyright, which is misleading and also fails to take the JURI advice into account.

Finally, on data protection, the position of INTA failed to fully respect the views of the Parliament’s Civil Liberties Committee, which said that data protection standards must not be negotiated in trade agreements.

In the run-up to today’s vote, several parliamentary Committees adopted far more balanced and critical opinions on TTIP. This means that the balance of views in the Parliament are not reflected in today’s outcome. We call on the 751 Members of the European Parliament not to turn their backs on citizens. Vote in Plenary is scheduled for 10 June.

Read more here:
TTIP Resolution: document pool
Infographic: TTIP Resolution
EDRi’s red lines on TTIP
The Lobbyists’ Charter
Legal Affairs Committee: ISDS and IPR must be excluded from TTIP
Data protection and privacy must be excluded from TTIP
Compromise amendments

Twitter_tweet_and_follow_banner

close
22 Apr 2015

Legal Affairs Committee: ISDS and IPR must be excluded from TTIP

By Guest author

The Transatlantic Trade and Investment Partnership (TTIP) resolution in the European Parliament is coming to a conclusion. 16 April 2015 was the deadline for European Parliament committees to submit their opinions to the leading committee, the International Trade committee (INTA). EDRi-gram previously reported about the positive vote of the Civil Liberties Justice and Home Affairs committee (LIBE), mainly on data protection and privacy. Today, we report about the Legal Affairs committee (JURI) Opinion.

JURI Members of the European Parliament (MEPs) adopted an Opinion against investor-state dispute settlement (ISDS) and the inclusion of “Intellectual Property Rights”, such as copyright, patents and trademarks, in the TTIP negotiations. The Opinion adopted in JURI also asks for more transparency and defends the right to regulate, among other subjects.

First, the adopted Opinion text clearly states that “there is no need for any private investor state dispute settlement mechanisms in this agreement” and calls the Commission to take into account the big majority (97%) of the responses to the public consultation, which opposed ISDS. In fact, the protection of foreign investors can be achieved without ISDS. As a joint analysis by EDRi and EDRi member Vrijschrift stated, “major international investments are almost always accompanied by contracts negotiated between governments and the investor, which often include their own dispute settlement mechanism and are tailored to the situation, and therefore do not create excessive risks for states. Furthermore, investors may take out political risk insurance and, overall, local courts and state to state arbitration complement the abovementioned negotiated contracts.”

Secondly, the JURI opinion requested the Commission not to negotiate on copyright, patents or trademarks.

Thirdly, the JURI committee calls for more transparency in the TTIP negotiations, endorsing the European Ombudsman’s decision of 6 January 2015 on transparency in TTIP – which includes the publication of all consolidated texts in its recommendations. Also, the Opinion points out that, according to the EU Treaties, “decisions shall be taken as openly and as closely as possible to the citizen”.

Regarding the right to regulate, the opinion asks the Commission to ensure that “any procedures in the context of regulatory cooperation fully respect the legislative competences of the European Parliament and the Council in strict accordance with the EU Treaties”.

In sum, this Opinion represents a victory for the rights of European citizens, because it completely overturned the draft Opinion proposed by the MEP in charge of the file, Axel Voss. The amendments approved changed the text of the Opinion, to the point that Mr Voss withdrew his name from it. Now, the Opinion carries the name of the shadow rapporteur Dietmar Kösner.

What’s next? INTA should take the Committee Opinions submitted into consideration before adopting the final text to be voted on by the full parliament. The INTA Rapporteur, Bernd Lange, received 898 amendments to his draft report, which forced postponement of the vote in the committee to 28 May 2015. Consequently, the vote by all MEPs in plenary was also postponed to 8-11 June 2015.

In the meantime, the European Commission seems to keep ignoring the results of the public consultation it conducted. Instead of opposing ISDS, it seems to be willing to put pressure on the European Parliament, and plans to presenting its “new ISDS” on 7 May 2015. We will know in the next months if the European Parliament will be able, on the contrary, to adopt a strong position against ISDS, as six Parliamentary committees have already done.

TTIP Resolution: document pool
https://edri.org/ttip-resolution-docpool/

Opinion of the Committee on Legal Affairs (JURI) on TTIP (17.04.2015)
http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-549.425&format=PDF&language=EN&secondRef=02

EDRi-gram: Data protection and privacy must be excluded from TTIP (08.04.2015)
https://edri.org/data-protection-privacy-ttip/

EDRi-gram: ISDS – one month after the results of the public consultation (11.02.2015)
https://edri.org/isds-one-month-after-the-results-of-the-public-consultation/

EDRi-gram: European Ombudsman does not see sufficient transparency in TTIP (16.04.2015)
https://edri.org/european-ombudsman-does-not-see-sufficient-transparency-in-ttip/

EDRi’s red lines on TTIP (13.01.2015)
https://edri.org/ttip_redlines/

(Contribution by Aldo Sghirinzetti, EDRi intern)

EDRi-gram_subscribe_banner

Twitter_tweet_and_follow_banner

close