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.

07 Oct 2015

Netherlands: New proposals for dragnet surveillance underway

By Guest author

In the Netherlands, online consultations by the government have been concluded on far-reaching proposals that foresee the expansion of surveillance powers of the intelligence services and the creation of new surveillance powers for the tax authorities (“Wet op de inlichtingen- en veiligheidsdiensten” and “Concept-Besluit Bijzondere vergaring nummergegevens telecommunicatie”). If proposed and enacted into law, they will severely threaten fundamental rights to privacy, freedom of assembly and association, as well as the right to fair trial, religion and free speech.

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A few proposals from each draft law:

  • Intelligence services will be authorised to, using a technical aid, wiretap, receive, record and listen to any form of telecommunications or data transfer via a computerised system.
  • Intelligence services can compel anyone to help decrypt data, conversations, telecommunications or data transfers.
  • Dragnet surveillance of all telecommunications as well as wholesale gathering of metadata, including location data, will be introduced.
  • The intelligence services will be granted the ability to break into computers of third parties, including non-suspects, to be able to monitor actual targets, without safeguards for fundamental rights or even acknowledging the potential for collateral damage.
  • The draft laws lack almost completely the safeguards to preserve client-attorney privilege, medical confidentiality etc.

Given that intelligence services have the purpose of preserving the rule of law in a democratic society, the draft proposal is more of an acute threat to the Netherlands than any terrorist threat.

In the case of the draft proposal for the tax authorities, the consultation on the tax law was about granting the special law enforcement units the authority to buy their own equipment, rather than having to rely on the IMSI-catchers and personnel of the Dutch police forces. While tax evasion is harmful, the ends justify the means even less than in the case of the expansion of intelligence powers.

The consultation on the bill for a new Intelligence and Security Services Act (only in Dutch, consultation ended on 01.09.2015)

Bits of Freedom, response to the consultation on the bill for a new Intelligence and Security Services Act (only in Dutch, 01.09.2015)

The consultation on the bill to grant the Fiscal Information and Investigation Service the authority to use (their own) IMSI-catchers (only in Dutch, consultation ended on 18.09.2015)

Bits of Freedom, response to the consultation on the bill to grant the Fiscal Information and Investigation Service the authority to use (their own) IMSI-catchers (only in Dutch, 14.09.2015)

Dutch intel bill proposes non-specific (“bulk”) interception powers for “any form of telecom or data transfer”, incl. domestic, plus required cooperation from “providers of communication services” (02.07.2015)

Vrijscrhift’s response to the online consultation Wet op de inlichtingen- en veiligheidsdiensten:

Privacy International’s response to the online consultation Wet op de inlichtingen- en veiligheidsdiensten:

Amnesty International’s response to the online consultation Wet op de inlichtingen- en veiligheidsdiensten:

(Contribution by Walter van Holst, EDRi member Vrijschrift, Netherlands)



06 Oct 2015

EU Commission: IT companies to fix “hate speech on the Internet”

By Joe McNamee

At the Colloquium on Fundamental Rights on 2 October 2015, EU Commissioner for Justice, Consumers and Gender Equality Věra Jourová gave a widely-reported speech on “hate speech”. At the meeting, she announced that she was organising a meeting between “IT companies, business, national authorities and civil society” in order to “tackle” online hate speech.

With the drive for IT companies to bring an end to terrorism, copyright infringement, hate speech and child pornography, one could be forgiven for getting the impression that their role in society is as a benevolent, all-seeing force to fight the ills of the world. As a result, it is not surprising that these companies are listed separately from “business” in Commissioner Jourová’s speech. In reality, however, they are businesses. They are businesses with no law enforcement powers, with a business interest in making money, in advertising, in data processing, and in minimising negative press coverage.

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From a public relations perspective, Commissioner Jourová is definitely working with a winning formula. Her colleague with responsibility for Home Affairs, Commissioner Dimitris Avramopoulos is in the process of doing exactly the same thing with the same initiative with regard to the fight against terrorism. He proposed launching an “Internet forum” (that had already been initiated by the Council of the European Union) for Internet companies to fight terrorism. The initiative was announced by the Commissioner in January, June and July this year.

One of the ways that pressure can be placed on Internet companies regarding online hate speech, is to encourage them to use their terms of service to “ban” illegal messages, in addition to their own standard terms that ban various types of legal content. This means that the platforms can more easily remove any content – including illegal content – without having to actually accuse the individual posting it of doing anything illegal. That’s easiest for the platform, because an accusation of law-breaking would imply additional obligations (reporting, etc), and it’s easiest for the EU Member State and the Commission because “somebody is doing something” to address the problem. It is easier for the person uploading the hate speech, because the only “punishment” will be the deletion of a comment, which can easily be posted again the next day and the day after. Indeed, researchers from the Catholic University of Leuven found that illegal hate speech is usually spread in the hope that it will be read, reported and condemned. So, the notion of an arbitrary, lawless game of “whack-a-mole” of content being uploaded, reported, checked, deleted, re-uploaded, reported, checked and deleted again creates an obvious, but apparently irrelevant, risk of counterproductive effects.

These discussions (terrorism, led by the European Commission Directorate-General for Migration and Home Affairs and hate speech, led by Directorate-General for Justice and Consumers) are happening in parallel with two parallel consultations (on “platforms”, led by the Directorate General for Communications Networks, Content and Technology and, shortly, IP enforcement, led by the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs) on the role of Internet intermediaries and liability for illegal or unauthorised online content. In the context of these four parallel discussions, there is no debate of whether it’s appropriate to use coercion of Internet intermediaries to delete unwelcome or possibly illegal content, whether there should be safeguards to protect legal but challenging speech, whether there is a risk of counterproductive impacts on either the public policy objectives being addressed or, indeed, competition and innovation.

On the other hand, is there any need to worry about the wisdom of companies like Facebook? Is it really that arbitrary that, at one moment, they had policies that prohibited female nipples (or representations thereof), but permitted male nipples and, if surrounded by appropriate commentary, beheading videos?

Catholic University of Leuven presentation: Media Pluralism and Diversity and Combating “hate speech” (26.03.2012) (from 1:59.00)

Remarks by Commissioner Avramopoulos after informal Home Affairs Council in Luxembourg (09.07.2015)

Facebook lets beheading clips return to social network (21.10.2013)

#FreeTheNipple uses male nipples to protest Facebook’s nudity policy (07.07.2015)

(Contribution by Joe McNamee, EDRi)



06 Oct 2015

EU Commission: IT companies to fix “terrorist use of the Internet”

By Kirsten Fiedler

In August 2015, the European Commission confirmed to EDRi that it’s preparing to partner with US online companies to set up an “EU Internet Forum” which apparently includes discussing the monitoring and censorship of communications in Europe. Participants of this Forum include Facebook, Google/YouTube,, Microsoft and Twitter. The first meeting was held on 24 July 2015 and focused on “reducing accessibility to terrorist content”.

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The Commission seems to believe that online companies are the magic solution to a great variety of societal problems and illegal activities. Therefore it doesn’t only regularly meet with online industry to fight terrorism, but also hate speech, alleged copyright infringements and so on. This ”EU Internet Forum” is now being set up in parallel to the meetings organised by EU Commissioner for Justice, Consumers and Gender Equality Věra Jourová between “IT companies, business, national authorities and civil society” to “tackle” online hate speech – and two consultations that aim at assessing the role of online platforms.

In a response to an “access to documents” request, the Commission sent us a summary of the preparatory discussion of the EU Internet Forum on 24 July, the minutes of a Ministerial dinner in 2014 to respond to the “terrorist use of the Internet”, and the (heavily censored) list of participants of both events (see the links documents below). The Commission was not able to send us a list of planned meetings of the Forum, as “no such documents have been identified”. The summary of the first meeting however mentions the official launch of the ministerial EU Internet Forum planned for the end of the year.

A quick look at the documents reveals that the impact, activities, scope, definitions, and unintended side-effects of this Forum are extremely unclear.

1. Unclear problem definition:
It’s remarkable that at no point the question on the motivations for the launch of such Forum seemed to have been raised. It’s simply assumed that “the process of radicalisation takes place more and more through the internet”, as one Minister stated during the meeting in 2014 and wobbling on top of that assumption is the assumption that ad hoc actions by internet companies can solve the assumed problem. However, the recent terrorist attacks in France and Belgium were, according to the investigations of law enforcement agencies, committed by terrorists who were not radicalised online. Moreover, experts agree that videos distributed through social media play a minimal role in the recruitment process for jihadists.

2. Unclear activity:
It’s also extremely unclear what companies are expected to do in order to “reduce terrorist content” and what the legal basis would be for such an activity. The summary of the meeting in June 2015 states that the process of deleting material from the Internet “will only work if the companies themselves have robust terms and conditions in place”. If it is to encourage them to use their terms of service “ban” what is already illegal, in addition to banning legal content (for example images of female nipples on Facebook or Apple’s online store), then this would mean that online platforms can more easily remove content without having to actually accuse the individual posting it of doing anything illegal.

3. Unclear vocabulary:
The the terms used throughout meeting summaries have not been defined: What constitutes “terrorist content”, “terrorist propaganda” or “terrorist material”, and what is the “terrorist use of the Internet”? Moreover, there seems to be no concern about Internet providers not having the expertise to assess whether material is illegal or not. Therefore, the removal of content by companies that are placed in the position to judge whether content hypothetically falls under ill-defined “terrorist content” leads to a high risk of violation of the freedom of communication. One of the reasons that led to the failure of the CleanIT project was the harsh criticism regarding the lack of clarity on the term “terrorist use of the Internet”. Neither Member States nor the Commission seem to have learned from the failed experience.

4. Unclear impact:
Nothing in the documents suggests that there has been a prior assessment of the impact of the actions that should, according to the Commission and Member States, be taken by the private sector. Will companies’ decisions on how to reduce accessibility to “terrorist content” actually be effective to achieve the objective of fighting terrorism? Nobody knows.

5. Unclear side-effects:
The meeting summaries also show a clear lack of concern for the questions whether it’s appropriate or not to use the coercion or encouragement of IT companies to delete allegedly illegal/unwelcome content, whether there should be safeguards to protect legal but challenging speech, whether there is a risk of counterproductive impacts on either the public policy objectives being addressed or, indeed, competition and innovation.

The Commission is about to officially launch an initiative that lacks a clear definition, scope and impact assessment. What does this say about the prevention and fight against terrorism in Europe and the tackling of the underlying societal problems? At least the Commission can tell the press and the Member States that it’s “doing something”.

Our access to documents request

Documents on the EU Internet Forum received on by the Commission

Terrorists behind the attacks in France are not radicalised “online” (only in French, 26.08.2015)

Kouachi-Coulibaly: the paths of the Parisien jihadists (only in French, 15.01.2015)

EDRi: RIP CleanIT (29.01.2013)

(Contribution by Kirsten Fiedler, EDRi)



06 Oct 2015

CCC campaigns to provide Internet access to refugees in Germany

By Guest author

German EDRi member Chaos Computer Club (CCC), along with free network associations Freifunk Berlin and the Förderverein freie Netzwerke, is running a fundraising campaign in support of the non-profit organisation Refugees Emancipation (RE). The project, initiated by asylum-seekers, aims to prevent the isolation and enhance the connectivity of refugees in Germany by enabling their access to the Internet. To do this, RE has established several self-organised Internet cafés and offers computer courses in refugee accommodations.

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The objective of the fundraising campaign is to finance the work of RE for at least one year. In concrete terms, the money raised will go towards financing telecommunication costs, office supplies, tools and repairs for the existing five Internet cafés, as well as the rent for offices, transportation costs and allowances for the coordinators of the project. In the best case scenario, the project will be expanded to establish new Internet cafés in refugee camps and centres. At the time of writing, 32 % of the target sum had been raised, with another 46 524 euros pending.

The initiative of RE, although already established in 2000, is particularly important in light of the current refugee crisis. For refugees, having access to the Internet is not only a means of communicating and reconnecting with remote family members, but also an important tool for their social integration in their country of destination. The Internet provides essential access to translation services and offers information on asylum procedures, which are often complicated and subject to bureaucratic complexity. Given that in Germany Internet access remains scant and hard to come by for the majority of refugees, the initiative by RE is significant.

Fundraising campaign for Refugees Emancipation: Internet cafes and computer courses for refugees (only in German, 01.10.2015)

Homegrown Net Café Reconnects Refugees, Families (28.10.2003)

Internet for Refugees by Refugees, donation page

(Contribution by Inka Kotilainen, EDRi intern)



06 Oct 2015

Finland: New surveillance law threatens fundamental rights

By Guest author

Finnish EDRi member Electronic Frontier Finland (Effi) is gravely concerned over a draft law on Internet surveillance. The bill that the country’s current government is in the process of preparing will grant the military and the Finnish Security Intelligence Service (Supo) the authority to conduct electronic mass surveillance for military and civilian intelligence purposes. On 1 October 2015, four ministers held a press conference to announce the bill. What they said did nothing to allay fears regarding the upcoming law.

Especially worrisome are the government’s increasing indications that Finland’s constitution will be altered to permit mass surveillance by the country’s intelligence service. To have the constitutional protection of the secrecy of communications weakened or even denied in order to make way for mass surveillance is unprecedented in Finland.

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“Minister of the Interior Petteri Orpo simply stated in his opinion that the prospective law does not pose a danger to an ordinary person,” said Effi’s Executive Director Nomi Byström. “Surely the minister would not imply that for example the mass surveillance revealed by Edward Snowden did not pose any threats to citizens, would he? I very much hope that Finland will not end up having such collaboration with the US National Security Agency (NSA) that Finns will be subjected to the abuses on a similar scale, or that no other organ will adopt similar methods and obstruct the rule of law. Especially, I hope that no country or its intelligence agencies are seeking to pressure Finland in the preparation for the bill.”

There are extremely worrisome cases of inefficient, intrusive mass surveillance in the world which, while being useless, have succeeded in violating fundamental rights on a massive scale. In Finland, matters have not been helped due to the current secrecy regarding the advancement of the bill.

“The preparations have taken place behind closed doors, and at a scarily fast pace,” said Tapani Tarvainen, Vice Chairman of Effi. “Now the government has promised to introduce more transparency. I hope this is what will actually happen, and that the citizens’ point of view will also be genuinely heard during the entire drafting process, instead of just presenting the country with a ready-made package to be either accepted or rejected.”

Finland should focus far more on data security. In the United States, despite widespread mass surveillance, the data of over twenty million employees were hacked in the OPM scandal, and the fingerprints of over five million people were stolen due to inadequate data security. In Finland it was revealed in late 2013 that the Ministry for Foreign Affairs had been subject to cyber espionage. This too could have been prevented with proper data security. An effective law on data security would far better address key concerns that legislation on mass surveillance is now expected to solve.

From the point of view of citizens’ rights, the essential elements that the prospective law is to pay heed to are:

  1. Warrants permitting surveillance that may be granted to the Finnish Security Intelligence Service (Supo) are to be based on a valid criminal suspicion. Supo already has extensive powers to gather intelligence regarding suspects. Any extension of powers should be linked to a warrant based on suspicion, and warrantless surveillance is not to be permitted. Existing legislation, such as the Coercive Measures Act, is sufficient.
  2. The suggested legislation should respect fundamental civil rights; particularly the rights to confidential communications, privacy, data protection and the freedom of expression. These rights are protected by the constitution of Finland, Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights. Also the Court of Justice of the European Union (CJEU) ruled in the Digital Rights Ireland case in April 2014 that mass collection and retention of data without a valid criminal suspicion violates the principle of proportionality.

A collision between the constitution and the proposed law is to be expected. However, to draw the conclusion that it is the constitution that should give way is both misleading and dangerous. An ordinary law is not – and should not be – on a par with the constitution. To undermine the constitution in favour of legalised mass surveillance will have major destabilising consequences that are far wider than are now either understood or taken into consideration. However, even if the constitution was to be altered, there is no escaping the fact that the country is bound and must respect its international human rights obligations as well as the EU Charter of Fundamental Rights.

“Minister of Transport and Communications Anne Berner stated during the press conference that the same rules that we follow in the real world also apply in the digital world. And she is entirely right: Just as it is not acceptable to systematically open the envelopes of all snail mail letters to search for possibly suspicious words in them, analysing the contents of electronic communications should not be permissible either,” stated Effi’s Chairman Timo Karjalainen.

Surveillance law threatens fundamental rights (only in Finnish, 02.10.2015)

The Constitution of Finland

(Contribution by Nomi Byström, EDRi member Effi, Finland)



06 Oct 2015

Fifteen years late, Safe Harbor hits the rocks

By Joe McNamee

Today, the Court of Justice of the European Union (CJEU) confirmed what the European Commission has been denying for the past fifteen years – the “Safe Harbor” agreement on transferring data to the United States is invalid.

“Safe Harbor was flawed in principle and flawed in practice” said Joe McNamee, Executive Director of European Digital Rights. “After last year’s data retention ruling, this is the second time in two years that the Court of Justice has struck down an instrument that the European Commission had spent years defending.”

The case was precipitated by revelations of mass surveillance in the United States, which led to the discovery of the National Security Agency’s abuse of both the judicial (“systematic misleading of judges”) and legislative (“unbounded interpretation of the [Patriot ] act that Congress never intended“) arms of the United States Government. While the US Mission to the EU has now confirmed that there is, apparently, “no mass surveillance of anyone“, there are some who may be sceptical.

In reality, however, the case is much deeper than “just” mass surveillance. The European Commission has never had the political courage to recognise that Safe Harbor was never safe. Even before the Snowden revelations, reports from the Commission itself and from independent research showed over and over again that the entire framework was inadequate. The European Commission and the businesses that used Safe Harbor to export data to the United States hoped that the open secret would remain a secret. Businesses that were using Safe Harbor could have done more than hope that a case would never be brought to the Court, businesses could have done more than pluck absurd numbers out of thin air as to the cost of abandoning this unsustainable agreement. Their choice was to take the risk that this unsustainable agreement could be sustained. They were wrong.

Read more:

Press release from the Court of Justice of the European Union (06.10.2015)

Safe Harbor: European Court Advocate General says Agreement should be declared invalid (23.09.2015)

Revelations on Safe Harbour violations go to hearing at EU Court (11.03.2015)

Finally! Safe Harbour Agreement under question by EU commissioner (31.07.2013)


06 Oct 2015

Unclear “net neutrality” proposal returns to European Parliament – civil society groups call for action

By Heini Järvinen



Following the conclusion of an unclear compromise on net neutrality and mobile phone roaming charges earlier this year, the Telecoms Single Market Regulation proposal has finally been submitted to the European Parliament for final approval.

Net neutrality is the principle that all Internet traffic should be treated equally by Internet access providers. By ensuring equal access to the full, unfettered Internet, net neutrality enables freedom of expression and of information online.

In the last week of October, the Parliament will be asked to vote on a text that contains positive principles prohibiting most – but not all – discrimination on the network. Several forms of discriminatory, restrictive behaviour could find refuge in the vagueness of the text. This is “policy-making-lite”: decision-making with key decisions removed.

“The European Parliament has a very simple choice,” said Joe McNamee, Executive Director of European Digital Rights. “Either it accepts amendments to give a real and predictable meaning to the text, or leave it to national regulators to decide if, how and when Europeans will get net neutrality,” he added.

For example:

  • The institutions agreed that “specialised services” (that are treated in a non-neutral way) would only be allowed if special treatment is “necessary”, but then agreed to define “necessary” as not necessarily meaning “necessary”.
  • While supporting “neutrality”, the text authorises different types of traffic to be treated differently. In practice, this could mean that encrypted data from especially smaller, less-established content providers may be communicated more slowly because encryption makes it difficult to tell that the data is, in fact, video data.
  • Part of the text appears to support the use of download limits to discriminate against some online services (blocking them when the download limit is reached) while another part clearly says that no content should be blocked.

“Together with our coalition partners, we are urging all European citizens to take action now via to help bringing these last missing pieces to the attention of the European Parliament,” continued Joe McNamee.



In September 2013, the European Commission produced a “not” neutrality proposal.

In April 2014, the European Parliament voted for a strong, clear text which defended the neutrality of the Internet, for the good of free speech, competition and innovation.

In June 2015, after months of total intransigence from the EU Council, that opposed net neutrality, a “compromise” was found through the adoption of unclear and unpredictable language.

Read more

Net Neutrality: Primary document pool

Net Neutrality: Document pool II


30 Sep 2015

Civil society calls for reform of trialogues in a letter to EU Commission, Parliament and Council

By Heini Järvinen

European Digital Rights (EDRi), together with 17 signatory organisations, today sent an open letter to European Parliament President Martin Schulz, Commission President Jean-Claude Juncker and Council Secretary-General Jeppe Tranholm-Mikkelsen, calling for a major reform of the so-called “trialogues”.

“Trialogues cannot be a means for EU institutions to circumvent their obligations with regard to transparency and good administration,” said Joe McNamee, Executive Director of European Digital Rights. “Almost all EU legislative files are now agreed using the trialogue system, often at an unacceptably early stage in the decision-making process. A major reform is necessary in order to enable proper public scrutiny of EU decision-making,” he added.

These informal inter-institutional meetings between the European Parliament, the Council of the European Union and the European Commission have become an established feature of EU decision-making. While they are originally aimed at increasing efficiency by means of achieving early agreements on legislation, trialogues undermine accountability and transparency of the EU legislative process. Very little information is available to the public because these meetings take place behind closed doors. Only well-resourced lobbies have access to trialogue documents. What about citizens? Ultimately, trialogues puts the European Parliament, the only EU institution which is directly elected by citizens, in a weak position and, in practice, actively discriminates against citizens.

The European Ombudsman launched an investigation on trialogues, and hosted an event on the “International Right to Know Day” where several stakeholders offered their points of view with the Ombudsman. We sent this open letter to support the European Ombudsman’s initiative for reform.

The letter call for public access to be granted to the trialogue meetings, and for the systematic and timely publication of all trialogue documents. The letter remains open to signatories.

Current signatories:
EDRi, Access, Access Info Europe, Bits of Freedom, Chaos Computer Club (CCC), Code Red, Digitale Gesellschaft, Electronic Frontier Finlad (EFFI), GONG (new), Initiative für Netzfreiheit, IT-Political Association of Denmark, IuRE, Kairos Europe, La Quadrature du Net, Panoptykon Foundation, Statewatch, Vrijschrift,, X-net.

Read more:

European Ombudsman’s inquiry on trialogues’ transparency

The Council challenges the right of the European Ombudsman to conduct an inquiry into secret “trilogues” (in which most EU legislation is decided)

The activist guide to the Brussels maze 2.0


30 Sep 2015

Civil rights groups condemn draft mass surveillance bill to be adopted in France

By Kirsten Fiedler

Today EDRi, together with 30 civil rights groups, sent the following letter to French parliamentarians to condemn a draft mass surveillance bill which is scheduled to be adopted on 1 October. You can download the letter in English (pdf) and in French (pdf). If your organisation wishes to sign, please contact us at brussels(at)

Dear Member of the Assemblée Nationale,

The undersigned civil and human rights organisations call on French parliamentarians to reject the draft law on surveillance measures for international electronic communications (“Proposition de loi relative aux mesures de surveillance des communications électroniques internationales”). The bill fails to defend and protect the right to privacy of individuals worldwide.

With this new bill, parliament is about to approve new disproportionate surveillance measures to monitor international communications. Based on the principle of massive collections of data, the bill seeks to legitimise the civil and human rights abuses revealed by Edward Snowden about the practice of intelligence agencies such as the ones in the US and the UK. As a crucial part of the global Internet traffic goes through French submarine cables, this law would put France in the list of countries with sweeping surveillance capabilities. This bill follows from the Surveillance Law passed in June, which allows the French government, among other measures, to monitor people’s phone calls and emails without judicial approval; and to install black boxes on internet service providers’ infrastructure to collect metadata on millions of innocent individuals. Earlier this year, the French Constitutional Council struck down one of the provisions of the Surveillance bill, and the new proposal seeks to re-authorise the international surveillance programme impacted. The draft law will be voted on 1 October by the French National Assembly.

In particular, we are deeply concerned that

  • the bill would allow for indiscriminate mass surveillance of millions of people in France and abroad;
  • independent oversight and control mechanisms are completely lacking. The massive data collection scheme would be conducted under the sole authority of the French Prime Minister, with only ex post control from the oversight authority. This does not sufficiently guarantee the protection of privacy and the respect for rights and freedoms;
  • clearly excessive and unjustified retention periods for data (content for one year, metadata for six years, encrypted content for eight years) are foreseen, in contradiction with the principles laid out by the Court of Justice of the European Union (CJEU) in its ruling on 8 April 2014 invalidating the Data Retention Directive;
  • the justification of the measures is so broad as to be meaningless, such as the defence of “major interests of foreign policy” and “major economic and scientific interests of France”;
  • the broad language leaves room for the future use of undefined surveillance technologies which could lead to an extension of the scope of the bill without any involvement of democratic institutions;
  • only lawyers, journalists, representatives and magistrates established in France would theoretically be granted some form of protection, although, for instance, the private or professional nature of their communications can only be established during the data processing, and in any event the law does not protect them against bulk collection and exploitation of their communications.

We, the undersigned organisations urge the French Parliament to reject this international surveillance bill and protect the rights of individuals all around the world. The principle of universality of rights is a fundamental principle, especially the European Union. We call on you to strengthen civil liberties and human rights safeguards for all and reject this proposal. Thank you.


European Digital Rights (EDRi)
Electronic Frontier Foundation (EFF)
Chaos Computer Club (CCC)
Article 19
Code Red
Web We Want Foundation
Electronic Frontier Finland (EFFI)
FITuG (Working Group on Data Retention Austria)
Initiative für Netzfreiheit
Icelandic Modern Media Initiative (IMMI)
Global Voices
Amnesty International
Pen International
Digital Rights Foundation
Australian Privacy Foundation
CPJ (Committee to Protect Journalists)
Digitale Gesellschaft e. V.
Bits of Freedom
IT-Political Association
Panoptykon Foundation
Association for Progressive Communications
Privacy International
Reporters sans frontières (Reporter Without Borders)
Alternative Informatics Association
ACI-Participa (Honduras)


23 Sep 2015

ENDitorial: EU Commission ISDS proposal – a threat to democracy

By Guest author

The European Commission has published its investor-state dispute settlement (ISDS) reform proposal for the Transatlantic Trade and Investment Partnership (TTIP), the EU-US trade agreement currently under negotiation, and future trade agreements between the European Union and third countries.

On the positive side, the reform proposal removes unfair procedural advantages for the United States and tries to address some of the concerns raised by the responses to the public consultation.

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On the negative side, the reform proposal does not represent a rejection of ISDS. It replaced the ISDS acronym with a new one, ICS, which stands for Investment Court System. In fact, the proposal contains several loopholes.

First, the reform proposal discriminates amongst investors, as it gives foreign investors, and only foreign investors, the right to circumvent domestic legal systems and use supranational adjudication to challenge government decisions. Supranational adjudication places the development of law outside democratic oversight.

Secondly, the reformed ISDS proposal contains procedural loopholes. If adopted, the proposal would create perverse incentives. The adjudicators would be paid per day worked and would be able to receive outside remuneration. This creates incentives to give foreign investors value for the money, as only foreign investors can start cases, leaving domestic investors in a less advantageous position.

Thirdly, reform still fails to protect EU policy making. Democratic societies have to be able to change course, for instance to reform their copyright laws, or to effectively protect the privacy of their citizens. The proposal would place for-profit supranational investment adjudicators above democracies. The adjudicators would assess whether democratic decisions are arbitrary from the point of view of the protection of foreign investments. This creates major risks for democracies and civil rights.

Finally, the European Commission undermines any possible positive element in its reform proposal, as it still intends to keep the “old ISDS” in trade agreements whose negotiations have been concluded, but not yet ratified, such as the trade agreements with Canada and Singapore. The result is that foreign investors would have the possibility to route their investments into the EU through these countries.

From a rule of law perspective, a more valid solution would be to to improve weak aspects of domestic legal systems. This would provide equal access to the law, and would not remove democratic oversight of the development of law. There are other ways for investors to achieve additional certainty for their investments than ISDS; they can for example take a political risk insurance.

European Commission’s ISDS reform proposal

EU Commission’s ISDS proposal a threat to democracy and civil rights (20.09.2015)

Vrijschrift letter to European Parliament’s international trade committee on Commission’s ISDS proposal (21.09.2015)

(Contribution by Ante Wessels, EDRi member Vrijschrift, The Netherlands)