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.

05 Mar 2015

EU Council proposals on protecting the open internet – Episode 1, the phantom neutrality

By Joe McNamee

After the European Parliament voted to protect net neutrality in April of last year, the EU Council of Ministers has just adopted its text on net neutrality (pdf)*. It claims to aim to defend the open internet, but would, in fact, permit every imaginable breach of net neutrality.

The misleading nature of the adopted text is very clear in the explanatory “recital”:

End-users, including providers of content, applications and services, should therefore remain free to conclude agreements with providers of electronic communications to the public, which require specific levels of quality of service. [emphasis added]

Net neutrality is the principle that content, applications and services are treated equally online. This allows everyone to connect to everyone globally, to the benefit of freedom of communication and innovation. It is the essence of the internet’s success. Giving preferential treatment to certain online services through special “quality of service” agreements or other preferential treatment would destroy the essence of the internet.

In the Council text above, “require” can only refer to the word “agreements”. So, if respecting an agreement requires “specific levels of quality of service” (i.e. discriminatory treatment of content, applications or services), then this discrimination between online services is permitted.

To put it another way, if the agreed service agreement includes a “fast lane” for certain content/services (leaving everyone else in the slow lane) – then this breach of net neutrality would be completely permissible under the legislation.

This analysis is confirmed by the slightly more garbled Article (3.3) in the proposed legislation:

Providers of electronic communications to the public, including providers of internet access services, shall be free to enter into agreements with end-users, including providers of content, applications and services to deliver a service other than internet access services, which requires a specific level of quality.[emphasis added]

We have no idea why the article says that the access service must require a specific quality of service and the explanatory recital says something different, namely that it is the agreement must require a specific quality of service. Ultimately, however, it means the same thing.

We would therefore be left with a European law that would not in any way protect net neutrality. The “compromise” is so ridiculous that even the Council itself was unable to spin the line that it was protecting net neutrality, claiming instead that this compromise had been the aim: “It also sets out to ensure that companies that provide internet access treat traffic in a non-discriminatory manner”.

The Council hopes that the European Parliament will be sufficiently distracted by the parallel discussions on roaming (where “compromises” are already prepared by the Council, because the “compromises” are what the Council actually wants), that it might let this text go through, unchallenged.

Next steps:

The proposals will now be negotiated (together with roaming) by the European Council and Parliament. The Council deliberately adopted an extremely weak text on roaming, in order be able to “compromise” with the Parliament in return the Parliament not demanding net neutrality.

If an agreement can be reached by early in the summer, this will be sent to the Parliament for approval. If the agreement is adopted, it will then be signed off by the Council before becoming directly applicable in all EU Member States.

*We have not yet been able to definitively verify if there were any last minute changes.

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03 Mar 2015

Leaked documents: European data protection reform is badly broken

By Diego Naranjo

Brussels, Belgium. New leaked documents show that European countries, pushed by Germany, are systematically working to destroy the fabric of European privacy legislation. Under the current proposals, far from being provided with security fit for the digital age, Europe’s citizens right to data protection would be devoid of meaning.

The Regulation is becoming an empty shell”, said Joe McNamee, Executive Director of European Digital Rights. “Not content with destroying key elements of the proposal, the EU Member States are rigorously, systematically and thoroughly undermining the meaning of every article, every paragraph, almost every single comma and full stop in the original proposal.

Leaked documents from the Council
According to the leaked proposals, crucial privacy protections have been drastically undermined, including the right to be asked for consent, the right to know how your data are used and the right to object to your data being used, minimum standards of behaviour for companies exploiting individuals’ data. In several places, the text would not likely pass judicial scrutiny under Europe’s human rights framework.

Background
In 2012, the European Commission made a proposal, which was amended and accepted by the European Parliament in 2014, to modernise and reform European privacy legislation. This update is urgently needed, due to the challenges of new technology.
Faced with profiling, digitisation of health data and online tracking, every corner of our lives is increasingly being invaded by “big data”. With enough data, a tracking company or government can know even more than we do about our own preferences, our motivations, our health, relationships and our politics than even our closest friends or family.

What happens next?
The Council is trying to complete its work by the summer, before negotiating with the Parliament on a compromise. Unless something is done urgently, the Council will simply complete its agreement, at which stage only an absolute majority of the European Parliament would be the only way of saving Europe’s data protection reform

Background documents:

Analysis produced by EDRi, Access, Panoptykon Foundation, and Privacy International of the leaked Council texts in one pagers highlighting the most problematic issues:

eudatap-broken

Direct download (pdf)


Comparison of European Parliament’s first reading text with Council document

Council documents:

6286/1/15 – The One-stop-shop mechanism 25.02.2015

6032/15 – Right to be forgotten – Dispute settlement 09.02.2015

17072/3/14 –  Further processing, consent 26.02.2015

17072/3/14 REV 3 ADD 1 – Information and right to object 26.02.2015

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02 Mar 2015

TTIP Resolution: documentary pool

By Maryant Fernández Pérez

The European Parliament is going to adopt a Resolution on TTIP. A resolution is a political statement which does not have binding effects. However, a strong resolution from the Parliament could be a step in the right direction.

The Committee on International Trade (INTA) is in charge of the dossier and it will be guided by Opinions from 14 other Committees before it submits its report to Plenary (vote scheduled 18-21 May).

From a digital rights perspective, we have identified seven key Committees. We’re now campaigning for a respect of our red lines on TTIP to ensure the protection of our rights and freedoms. In order to allow you to keep track of the process, you can find our analysis below. We’ll update this post as the procedure advances.

LIBE
Civil Liberties, Justice and Home Affairs
ITRE
Industry, Research and Energy
IMCO
Internal Market and Consumer Protection
AFCO
Constitutional Affairs
 Draft opinion  Draft Opinion   Draft Opinion  Draft Opinion
 Analysis of amendments  Analysis Analysis  Analysis
 Vote: 5 March  Vote: 24 March  Vote: 7 May  Vote: 17 March

 

CULT
Culture and Education
AFET
Foreign Affairs
JURI
Legal Affairs
INTA
International Trade 
 Draft Opinion  Draft Opinion  (Draft Opinion pending)  Working document
 Analysis   Analysis     Draft Report
 Vote: 16 Apri  Vote: 23 March Vote: 16 April  Vote: 6-7 May

 

For more information on how the EU works, read our Activist guide to the Brussels Maze. For more information on TTIP and Digital rights, click here.

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02 Mar 2015

Infographic: TTIP Resolution

By Maryant Fernández Pérez

The Transatlantic Trade and Investment Partnership (TTIP) is an agreement which is currently being negotiated between the United States and the European Union.

The European Parliament is going to adopt a Resolution on TTIP. A resolution is a political statement which does not have binding effects. This infographic shows how it is going to be adopted by the Parliament. It highlights the legislative process in the Committees of relevance to digital rights:

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27 Feb 2015

So, whatever happened to net neutrality in Europe?

By Joe McNamee

After all of the excitement and jubilation as a result of the US FCC’s ruling on net neutrality, what is going on in Europe? Quite a lot, as it happens.

History

In September 2013, the European Commission produced a badly drafted, incoherent “Telecoms Single Market Regulation”, which included proposals that claimed to support net neutrality, but which would actually destroy it.

In March, 2014, the European Parliament adopted its first reading of that proposal, closing the loopholes in the badly written text. This improved text was supported by a big majority in the Parliament.

Now, the third institution in the EU framework, the Council of the European Union (made up of Member State Ministers) is about to adopt its position. After almost exactly a year of discussions, the Council has deleted most of the elements of the badly-written, badly-planned Regulation, leaving just the parts on net neutrality and roaming.

Next steps

The Council’s draft (pdf)*, discussed on 27 February at Working Group level, will be finalised next Wednesday by Member State Representatives. As a result of extensive pressure from the large Member States (especially Spain), loopholes that would undermine net neutrality have been re-inserted.

The result would be legislation that essentially means nothing, generating regulatory burdens and confusion, while failing to protect freedom of communication, competition and innovation. Shortly before the launch of the EU’s flagship “digital single market” initiative, the EU Member States are legislating to allow telecoms companies to create new barriers online by creating fast lanes and free passes for business partners and their own services.

For the big Member States, like Spain and Germany, the lobbying of their big national ex-monopolies is difficult to resist. Their demands become more important than the citizens and start-ups in their countries. Sadly, they have enough power to force compromises onto the rest of the EU that undermine everybody’s rights, innovation and the broader economy.

Privatised law enforcement

In parallel with the destruction of net neutrality, the draft also contains incoherent and contradictory text on the right of internet companies to filter and block content outside the rule of law. The UK attempted and failed to introduce such text. However, Sweden was persuaded to propose the UK’s proposal (and probably got something nice in return, we will never know) and this then found its way into the compromise text prepared by the Council Presidency.

The draft currently contains an article that says, even though there was no doubt about this, that internet providers can block content if required to do so by law. There are then two explanatory “recitals” which clarify this text. The first explains, incomprehensibly, that such actions could be taken for reasons (recital 9):

…such as national measures of general application, courts orders, decisions of public authorities vested with relevant powers, or other measures ensuring compliance with such legislation (for example, obligations to comply with court orders or orders by public authorities requiring to block unlawful content)”.

The following recital (10) explains the same thing again, but randomly adds another meaningless criterion, namely “ensuring compliance with such legislation”. What is a “national measure of general application”, what does “ensure compliance with legislation” mean, if it doesn’t mean comply with a court order?

It appears irrelevant that the primary law of the European Union is quite clear that such restrictions are illegal. According to Article 52 of the Charter of Fundamental Rights (pdf), restrictions must be “provided for by law” and not left to the vagaries commercial interests and priorities.

What next?

EDRi and its allies are still working hard behind the scenes to improve the Council text. Once the text is adopted by the Council, negotiations will start between representatives of the European Council and Members of the European Parliament. Leading the Parliament delegation will be Pilar Del Castillo (EPP, Spain), who tabled in amendments in the first reading in the Parliament, that were significantly less supportive of net neutrality than those of either Industry Committee as a whole or even her own political group.

Join us to defend the open, neutral internet.

*The link is to a version that is a few days older than the one being discussed.

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25 Feb 2015

Report on our fundraising campaign

By Kirsten Fiedler

Thanks to everyone who contributed during our fundraising campaign to support us. It brought in 27 271 Euro from 336 donors in 22 countries. It has been our second and most successful campaign. Here are a few statistics:

  • Total amount raised: 27 271 EUR
  • Number of donations: 336
  • Number of fundraising days: 66
  • Donations from countries: 22
  • Average donation: 81,16 EUR
  • Best day: 13/02/2015

donations-countries

Your donation will go straight into the defence of your rights and freedoms. Our Advocacy Manager, who was the center of the fundraising campaign, is working hard to defend your right to privacy, fight for a legal safeguard for net neutrality and against new European proposals for mass surveillance. Here is how we will use your donations in the next six months:

  • Advocacy Manager: 24 475 EUR
  • Production of campaign material: 611 EUR
  • IT costs: 540 EUR
  • Office space: 1 645 EUR

Although your donations already help us a lot, our financial situation for this year is still not stable. In August 2015, our two biggest contracts (which represent 71 percent of our budget) with foundations will both end. We are working on new funding proposals and will know the result in a couple of months if these are successful.

In any event, with EDRi being far smaller than equivalent organisations in, for example, the USA, we need to grow and remain rigorously independent. For this, donations are absolutely essential. Therefore, if you want to contribute on a regular basis, you can become an official “EDRi supporter”. Please contact us at supporters(at)edri.org. If you want to learn more about our work, you can subscribe to our newsletter, read our donation FAQ or follow us on Twitter.

ourspendings

Support our work
https://edri.org/donate/

Donation FAQ
https://edri.org/donation-faq/

EDRi-gram newsletter
https://edri.org/newsletters/

(Contribution by Kirsten Fiedler, EDRi)

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25 Feb 2015

Net neutrality: Freedom also means banning positive discrimination

By Guest author

Zero rating, also known as “sponsored data”, is the policy of mobile network providers and mobile virtual network providers to not charge their clients for using specific services, such as Facebook or YouTube. Zero rating is a bad idea for several reasons: You give specific services an advantage over their competitors, and push users towards using a certain service and disadvantage all others.

This is particularly dangerous in third world countries, because the markets there are still in development. It’s now come to light that in certain African and Asian countries the number of Facebook users is larger than the number of (open) internet users. Which is bad news. It increases Facebook’s ever-growing data monopoly. It’s also detrimental for these countries because it puts the mobile market under pressure: The larger mobile operators that can offer these kinds of bundles are able to easily push the competitors aside.

Many of these concerns are also true for Europe: these kinds of plans consolidate the power of large mobile providers, and force internet users towards the existing monopolists on the individual service market. This is not only bad for freedom of communication, but also for innovation, because new businesses don’t stand a real chance.

In the Netherlands, net neutrality policy explicitly prohibits price discrimination. This restriction can be negative, meaning that Internet providers may not offer more expensive specific individual services in combination with internet access, and positive, meaning that Internet providers may not offer cheaper individual services in combination with internet access. This is beneficial for both freedom of information and innovation.

As previously reported in EDRi-gram, Vodafone was recently fined for such practices in the Netherlands. They wanted to offer the “HBO go” app to Vodafone clients without its data use being deducted from their data limit for the first three months.

Negotiations about the European rules that must regulate net neutrality are delicate. Not surprisingly, when the large Member States can feel the large telecom companies breathing down their necks. In the most recent compromise proposal, this sort of price discrimination is not banned, but it does state the need to avoid the kind of agreements being made that lead to the stifling of competition. Dutch EDRi-member Bits of Freedom together with other European civil rights organisations, submitted comments and suggestions at every stage of the discussions in Council, hoping that policy-makers see the advantages an open an innovative online environment that protects net neutrality. Such an environment needs a clear ban on zero rating.

Net neutrality: freedom also means banning positive discrimination (11.20.2015)
https://www.bof.nl/2015/02/11/net-neutrality-freedom-also-means-banning-positive-discrimination/

Millions of Facebook users have no idea they’re using the internet (09.02.2015)
http://qz.com/333313/milliions-of-facebook-users-have-no-idea-theyre-using-the-internet/?utm_source=howtogeek&utm_medium=email&utm_campaign=newsletter

In the Netherlands, where zero-rating is banned, KPN just doubled (free of charge) the mobile internet volume caps to encourage a carefree usage of its online videos (06.02.2015)
http://dfmonitor.eu/downloads/Banning_zerorating_leads_to_higher_volume_caps_06022015.pdf

EDRi-gram: Netherlands: Two telcos fined for net neutrality violations (11.02.2015)
https://edri.org/netherlands-two-telcos-fined-for-net-neutrality-violations/

(Contribution by Floris Kreiken, EDRi-member Bits of Freedom, Netherlands; translated from Dutch by Natasha Baron)

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25 Feb 2015

Activist Guide to the Brussels Maze updated

By Heini Järvinen

After the major changes in 2014 to the Brussels activist landscape – with the European Parliament elections in May and the new European Commission that took office towards the end of the year – EDRi’s booklet “Activist Guide to the Brussels Maze” has been updated. The version 2.0 is now available on our website.

The purpose of this booklet is to provide activists with an insight into where EU legislative and non-legislative proposals come from, and what can be achieved at each stage of the legislative process. As the lifetime of some EU proposals can be very long, it is important to know where to target any activity at any given moment. Every institution is very powerful and influential at certain moments and very much a spectator at other moments. We hope that this guide will help serve as a map of the Brussels maze.

Activist guide to the Brussels maze 2.0
https://edri.org/files/activist_guide_to_the_EU.pdf

EDRi papers
https://edri.org/papers/

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25 Feb 2015

Turkish academics threaten Twitter with legal action

By Heini Järvinen

On 20 January 2015, two Turkish law professors sent a legal notice to Twitter representatives in Turkey and the US demanding to cease the removal of content and blocking individual accounts that have been requested by Turkish government. The notice points out examples of alleged violations of freedom of expression in court orders restricting internet access.

Assistant Professor Kerem Altiparmak and Professor Yaman Akdeniz warned the the US social media company that they would “take all possible forms of legal action in both Turkey and the United States” if the blocking continues. The notice was sent right after the Turkish government brought before parliament a bill attempting to reintroduce some elements of legislation granting the Turkish Telecommunications Authority (TIB) the power to block websites without a court order, and that was annulled by the the Turkish Constitutional Court on 2 October 2014. The notice was also published on the website privacy.cyber-rights.org.tr. Twitter has not yet so far responded to the notice.

Twitter’s transparency report about the second half of 2014 reveals that the number of removal requests from Turkey is far above the number of requests from all other countries combined. Online censorship has raised serious concerns in Turkey during recent years. The government is repeatedly taking measures to tighten its control over the Internet that remains one of the few channels for free speech in the country.

Altiparmak and Akdeniz have previously initiated several successful legal actions related to freedom of speech and online censorship in Turkey. They are now in the shortlist of the “Campaigning Award Nominees 2015″ of the Index on Censorship, a non-profit organisation campaigning for freedom of expression.

Sadly, Turkish citizens may soon be less able to hope for protection of their rights from the European Union. The current draft text on net neutrality (thanks to a suggestion from Sweden) supports the new Turkish approach to censorship. It proposes that internet intermediaries should be free to restrict content if they are implementing a legal obligation (for which Turkey has been condemned in the European Court of Justice already) or an order of an administrative authority (an approach already condemned by the Turkish constitutional court) or any unspecified other “measure” (like is now being proposed in Turkey for online intermediaries). We can only hope that there are some EU Member States that still remember adopting the European Charter of Fundamental Rights in 2009 and what it means not just in the EU, but globally.

Legal notice of 20.01.2015
http://cyber-rights.org.tr/docs/Twitter_ihtar_ENG.pdf

Turkish academics threaten Twitter with legal action (24.01.2015)
http://www.aljazeera.com/news/middleeast/2015/01/turkish-academics-threaten-twitter-legal-action-150124175734757.html

Turkish academics threaten Twitter with legal action (24.02.2015)
https://www.youtube.com/watch?v=VWuSxGOq5cA

Is Twitter giving in to Turkish censorship? (19.20.2015)
http://www.al-monitor.com/pulse/originals/2015/02/turkey-twitter-collaborating-with-turkish-censorship.html

Twitter transparency report: Removal requests July 1 – December 31, 2014
https://transparency.twitter.com/removal-requests/2014/jul-dec

Three years of increased #transparency … and counting (09.02.2015)
https://blog.twitter.com/2015/three-years-of-increased-transparency-and-counting

EDRi-gram: Yet another internet blocking law in Turkey (11.02.2015)
https://edri.org/yet-another-internet-blocking-law-turkey/

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25 Feb 2015

Did GCHQ spy on you? Find out now!

By Guest author

Since its launch on 16 February 2015, over 25 000 people have joined an international campaign to try to learn whether Britain’s intelligence agency, GCHQ, illegally spied on them.

This opportunity is possible thanks to court victory in the Investigatory Powers Tribunal (IPT), a secret court set up to hear complaints against the British Security Services. As previously reported in the EDRi-gram, Privacy International won the first-ever case against GCHQ in the Tribunal, which ruled that the agency acted unlawfully in accessing millions of private communications collected by the US National Security Agency (NSA), up until December 2014.

Because of this victory, now anyone in the world can try to ask if their records, as collected by the NSA, were part of those communications unlawfully shared with GCHQ. We feel the public has a right to know if they were spied on illegally, and Privacy International wants to help make that as easy as possible.

Unfortunately, the IPT can’t act by itself, and that’s why it needs people to come forward and file complaints. Privacy International plans to assist as many people as possible in jumping through the hoops the process will probably entail. It is going to be a long fight, and it will likely take months for the IPT to process all the complaints. However, it is important to bear in mind that if the IPT find that your communications were illegally shared with GCHQ, they will be obligated to tell you.

Through their secret intelligence-sharing relationship with the NSA, GCHQ has intermittently enjoyed unrestricted access to PRISM, the NSA’s means of directly accessing data and content handled by some of the world’s largest Internet companies, including Microsoft, Yahoo!, Google, Facebook, Skype, and Apple. GCHQ has also had access to other parts of the NSA’s Upstream collections, through which telephone and internet traffic data is accessed as it flows through communications infrastructure, including CO-TRAVELER, which collects five billion mobile phone locational records a day, and DISHFIRE, which harvests 194 million text messages daily. The top five programs within Upstream created 160 billion interception records in one month alone.

Chances are, at some point over the past decade, your communications were swept up by one of the NSA’s mass surveillance programs and passed onto GCHQ. We think you have a right to know whether that’s the case, and if so, to try and demand that data be deleted. Privacy International wants to help you assert those rights.

Privacy International’s campaign “Did GCHQ illegally spy on you?”
https://privacyinternational.org/illegalspying

FAQ: Did GCHQ Spy On You?
https://privacyinternational.org/?q=node/495

(Contribution by Eric King, Privacy International)

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