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1. EDRI-gram newsletter - Number 2.6, 24 March 2004
(EDRI-gram newsletter)
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Subject: EDRI-gram newsletter - Number 2.6, 24 March 2004
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==================================================================
EDRI-gram
bi-weekly newsletter about digital civil rights in Europe
Number 2.6, 24 March 2004
==================================================================
CONTENTS
==================================================================
1. New EU plans for mandatory data retention
2. Microsoft gets record-breaking fine
3. Entry into force of Convention on Cybercrime
4. New Italian decree forbids file-sharing
5. Germans consider prison sentence for spammers
6. XS4ALL wins appeal in Dutch spam case
7. Better exchange new laws information society
8. Analysis e-mail response Romanian MP's
9. Free e-mail address for every Belgian
10. Agenda
11. About
===================================================
1. NEW EU PLANS FOR MANDATORY DATA RETENTION
===================================================
EDRI has obtained secret documents in preparation of a Declaration against
Terrorism that will be published during the Spring Summit of EU heads of
state. The draft from the Irish presidency specifically mentions the need
to prioritise mandatory data retention for GSM and internet providers. The
Commission input for the Summit, issued a few days earlier, does not
mention data retention, but proposes many other measures that will have a
chilling effect on the daily lives of European citizens and their freedom
to travel and communicate.
The desire for mandatory data retention was already expressed last week,
on 19 March, during an emergency meeting of the EU's Justice and Home
Affairs ministers in Brussels. Following a German initiative, the
ministers discussed a catalogue of measures in the fight against
terrorism. It does not come as a surprise that the hardcore law
enforcement faction in the Council of Europe used the occasion to put
several long-term projects in the spotlight.
Some of the bombs used in Madrid two weeks ago were detonated with
modified mobile phones. This gave UK Home Secretary David Blunkett (the
Minister of Internal Affairs) the opportunity to declare that it was
necessary for providers to retain all traffic data from cell phones as
well as from other forms of electronic communication. The UK delegation to
the European Union and other surveillance hard-liners have been pushing
this project for more than five years.
Anti-terrorism measures will be on top of the agenda of the EU Spring
Summit, which will be held in Brussels on 25 and 26 March. EDRI has
obtained confidential documents preparing a draft declaration on fighting
terrorism for that meeting. The document from the Irish Presidency to the
Council says: "The European Council, with a view to the further
development of the legislative framework set out above, instructs the
Council to examine measures in the following areas: proposals for
establishing rules on the retention of communications traffic data by
service providers; (...)", and: "Priority should be given to the proposals
under the retention of communication traffic data (...) with a view to
adoption by June 2005."
It is an open secret that law enforcement hawks started to draft a
Framework Decision that would introduce mandatory retention of
telecommunication data immediately after the directive on privacy and
electronic communications (2002/58/EC) was passed in May 2002. The
Directive contains a paragraph (Article 13) that explicitly allows
retention of traffic data "when such restriction constitutes a necessary,
appropriate and proportionate measure within a democratic society to
safeguard national security (i.e. State security), defence, public
security, and the prevention, investigation, detection and prosecution of
criminal offences or of unauthorised use of the electronic communication
system."
Like the Council, the Commission calls for a number of understandable
anti-terrorism measures, such as a database of terrorists, better tracing
of weapons and explosives and new procedures for banning organisations.
Member states also want to establish an EU co-ordinator for the fight
against terrorism, and link secret services up with each other and police
forces. Some countries are in favour even of what has been referred to as
an 'EU CIA', but at the moment, this idea doesn't seem to have any
suppport from the large EU members such as the UK and France.
But the proposal from the Commission goes way beyond the immediate threat
of terrorism and reads more like a general call for heavy electronic
surveillance of all European citizens.
The Commission paper mentions the need to enhance the exchange of data in
general, "including through enhanced access to data not produced for law
enforcement purposes." The document does not specify the kind of databases
that this measure refers to.
Another remarkable proposal from the Commission is to publish a proposal
'by the middle of 2004' to allow the use of European passenger data (PNR)
for 'other law enforcement purposes'. The wording is identical to the very
broad use the United States wish to make of PNR-data, in direct violation
of EU privacy-legislation and as such strongly opposed by the European
Parliament.
The Commission also suggests "(...) upgrading existing databases such as
SIS II with new functionalities, as well as making full use of advanced
technologies such as satellite -enhanced (GALILEO) RFID (Radio Frequency
Identification Device) tracking."
On the issue of biometric data in new EU passports, the Commission now
wishes to add the fingerprint to the mandatory requirements. In previous
plans this was just an option, on top of the requirement of an
electronical facial image. The documents says: "(...)the possibility to
adjust the pending Commission proposal on EU passports by making
fingerprints mandatory and to extend it to Identity Cards and other travel
documents."
Finally the Commission suggests a specific measure for mobile phones.
Reprogramming should be criminalised and "measures should be taken so that
the sale of replacement SIM cards does not impede the efficient actions of
law enforcement authorities."
Documents Commission and Presidency preparing a draft Declaration
(19-22.03.2004)
http://www.edri.org/?id=000100000141
Irish presidency press release JHA-council (19.03.2004)
http://www.ue2004.ie/templates/news.asp?sNavlocator=66&list_id=438
Statewatch on EU Emergency Justice and Home Affairs Council (March 2004)
http://www.statewatch.org/news/2004/mar/16jha-prel-19March.htm
Agenda EU Spring Summit 25-26 March 2004
http://europa.eu.int/comm/councils/bx20040325/index_en.htm
Press release European Commission on counter terrorism efforts (12.03.2004)
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=MEMO
/04/59|0|RAPID&lg=EN;
(Contribution by Andreas Dietl, EDRI EU affairs director)
===================================================
2. MICROSOFT GETS RECORD-BREAKING FINE
===================================================
After a five-year investigation into Microsoft's business practise the EU
Commission has decided that the company has violated the EU competition
rules by abusing its near monopoly in the PC operating system. Microsoft
will have to pay a 497 million euro fine.
The Commission has been investigating Microsoft practices since 1998
following a complaint by Sun Microsystems. The Commission has ruled that
Microsoft abused its market power by deliberately restricting
interoperability between Windows PCs and non-Microsoft work group servers,
and by tying its media player with its operating system.
Microsoft's illegal conduct has enabled it to acquire a dominant position
in the market for work group server operating systems and has
significantly weakened competition on the media player market. The
dominant position has grave consequences for consumers according to EU
competition Commissioner Mario Monti: "The ongoing abuses act as a brake
on innovation and harm the competitive process and consumers, who
ultimately end up with less choice and facing higher prices".
The Commission is also imposing a few remedies. Microsoft is required,
within 120 days, to disclose complete and accurate interface documentation
to allow non-Microsoft work group servers to achieve full
interoperability with Windows PCs and servers. Microsoft will not have to
reveal source code.
Microsoft will also have to offer, within 90 days, to PC manufacturers a
version of Windows without media player. "As a result of the Commission's
remedy, the configuration of such bundles will reflect what consumers
want, and not what Microsoft imposes", according to the Commission.
Commissioner Monti does not only want to restore the conditions for fair
competition by the ruling but also "establish clear principles for the
future conduct of a company with such a strong dominant position." The
Commission wants to prevent Microsoft from controlling the digital media
market, be it with encoding technology, software for broadcasting music
over the internet and digital rights management.
The decision will only effect the European market and has no global
impact. The Commission does not want to jeopardise existing co-operation
with US anti-trust regulators.
Press release European Commission (24.03.2004)
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/0
4/382|0|RAPID&lg=EN;
Questions and Answers on Commission Decision (24.03.2004)
http://europa.eu.int/rapid/start/cgi/guestfr.ksh?p_action.gettxt=gt&doc=MEMO
/04/70%7C0%7CRAPID&lg=EN&display=
===================================================
3. ENTRY INTO FORCE OF CONVENTION ON CYBERCRIME
===================================================
The Council of Europe's Convention on Cybercrime will enter into force on
1 July 2004, following its ratification by Lithuania. The convention
requires at least 5 CoE members to ratify. Previously Albania, Croatia,
Estonia and Hungary have done so.
The convention's aim is to develop a common criminal policy on cybercrime
by promoting international co-operation and the adoption of appropriate
legislation. Signatories will have to implement into their national law
criminal code concerning computer crime and will also have to give their
police new powers to conduct investigations regarding computers and the
internet.
Besides computer hacking and viruses, the convention covers (virtual)
child pornography and computer-related fraud. Police forces in the
ratifying countries will get new powers to seize data, intercept
communications and request cross-border assistance.
Many provisions in the convention do not have to be implemented to the
full extent. For example countries may require that computer hacking is
committed by infringing security measures. But it is also possible to make
hacking a crime if it is done without breaking any security (for example
if the computer involved has no security protection).
The convention has been criticised by civil liberty groups and the
European data commissioners for the secretive process by which it was
created and for not requiring countries to protect civil rights while
extending police powers.
The Council of Europe has 45 members of which 33 countries have signed the
convention. Non-member countries such as the USA, Canada, South-Africa and
Japan also joined. As a follow-up, the Council is planning a major
international conference on 'The Challenge of Cybercrime', which will
bring together senior politicians, computer industry leaders and experts
from around the world in Strasbourg from 15 to 17 September 2004.
The convention on cybercrime
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CM=8&DF=24
/03/04&CL=ENG
==================================================================
4. NEW ITALIAN DECREE FORBIDS FILE-SHARING
==================================================================
The Italian government has issued a decree on Friday 12 March that puts a
fine of 1.500 euro on the internet file-sharing of feature movies.
On top of the fine, computers and digital storage media can be seized. To
complete the humiliation for the file-sharer, the sentence has to be
published in 1 national daily newspaper and 1 specialised entertainment
magazine. The Ministry of Culture Giuliano Urbani has mockingly declared
this sanction 'symbolic'. Adding to that, in reference to peer-to-peer
file sharing, Urbani said that 'multimedia piracy is a theft, and must be
handled as such'.
Since its first draft, this legislative measure was strongly protested
against by citizens, ISPs (forced to violate the privacy laws by spying
and filing complaints against their customers), columnists and
politicians. Service providers that have knowledge of a copyright
violation but do not file an official complaint with the judicial
authorities, risk a fine of between 25.000 and 250.000 euro.
A petition against the conversion of the decree into a regular law
collected more than 22.350 signatures, and more than 2.000 comments were
posted in the forum hosted by the popular technology e-zine
Punto-Informatico.
According to user-group ALCEI the decree is part of a long list of laws
and decree's in Italy that violate the spirit of internet, the liberty and
fundamental rights of citizens. In its attempt to outlaw a broad and
socially accepted behaviour it outdoes the recently approved European
Directive on the Enforcement of Intellectual Property. The decree is
formulated in such broad terms, that the Italian chapter of the Internet
Society worries that the distribution of file-sharing software, and even
the presentation of a hyperlink might be considered as promotions of
crime, and therefore punished severely.
In fact, the decree makes it possible to punish intentions, rather than
actual committed violations of copyright. "Even if such a breach of
fundamental rights might be considered admissible in extreme cases like
terrorism", ALCEI writes, "it is unacceptable in situations where there is
no risk at all for the life and safety of people and institutions."
The decree has been approved only by the Ministers. It was published in
the official State Journal on 23 March. It must be converted in a law by
the Parliament within 60 days after publication, or will lose its
effectiveness. The text now only refers to cinematographic works, but
Minister Urbani has already announced that he will extend the scope of
the decree to include music and software before it will become law.
The Internet Society adds that freedom of choice for Italian movie-fans is
limited and prices are kept high. 70% of the movie-distribution market is
in the hands of 5 major companies, only one of which is Italian.
The decree text (24.03.2004)
http://www.gazzettaufficiale.it/guri/atto_fs.jsp?sommario=true&service=0&exp
ensive=0&dataGazzetta=2004-03-23&redazione=004G0103&numgu=69&progpag=1&sw1=0
&numprov=72
Signatures against the decree
http://no-urbani.plugs.it/index.php
Comments Internet Society Italy (in Italian, March 2004)
http://www.isoc.it/documenti/com_urbani.php
ALCEI press release (in Italian, 15.03.2004)
http://www.alcei.it/news/cs040315.htm
(Contribution by Pinna, autistici.org/inventati.org - Italy)
==================================================================
5. GERMANS CONSIDER PRISON SENTENCE FOR SPAMMERS
==================================================================
The German newspaper Frankfurter Allgemeine reports about plans from the
governing Social-Democrats (SPD) to make spamming an offence in Germany.
According to the SPD, merely introducing fines is not enough, and spamming
should become an offence, with penalties or a prison sentence. The working
group on Telecommunication and Mail of the SPD did not yet decide on the
length of the desired sentences. Germany will implement the anti-spam
legislation in a specific law against unfair competition that also forbids
unsolicited faxing, not in the simultaneous pending revision of the
Telecommunication Law.
According to SPD-representative Ulrich Kelber prison sentences are
necessary to be able to stop the biggest spammers, that send out millions
of unsolicited commercial mails. 2 or 3 of the biggest spammers from the
TOP-50 are suspected to stem from Germany. The opposing Christian-Democrat
and Conservative parties (CDU/CSU) do not wish to introduce penal
sanctions, but stick to (administrative) fines.
Like many other EU-countries, Germany has not implemented the new European
anti-spam legislation in time. The deadline for implementing the directive
on privacy and electronic communications (200/58/EC) passed on 31 October
2004. Only 8 countries were successful. On 17 December 2003, the European
Commission took the second step in infringement procedures, sending
'reasoned opinions' to Germany and Belgium, France, Greece, Luxembourg,
the Netherlands and Portugal. Spain was only just-in-time to escape the
infringement-procedure. On 17 February 2004, the deadline for responding
passed, but the Commission has not yet announced which countries will be
referred to the European Court of Justice.
FAZ, 'Gefangnisstrafen fur Mail-Mull' (22.03.2004)
http://www.faz.net/s/Rub21DD40806F8345FAA42A456821D3EDFF/Doc~E79697E48D2914C
3C92F3341E5FB04199~ATpl~Ecommon~Scontent.html
European Commission announces infringement procedures (17.12.2003)
http://europa.eu.int/information_society/topics/ecomm/doc/all_about/implemen
tation_enforcement/infringements/ip17dec03_1750.pdf
==================================================================
6. XS4ALL WINS APPEAL IN DUTCH SPAM CASE
==================================================================
The Dutch Supreme Court has ruled that the Dutch internet provider XS4ALL
is permitted to refuse spam on its network. It is the first time that a
supreme court in Europe has ruled on the rights of spammers.
In the view of the Supreme Court, the fact "that XS4ALL has exclusive
rights to its computer capacity, transmission capacity and customer base
(its computer system)" outweighs the appeal made by AbFab for freedom of
speech. Providers in the Netherlands have no conveyance obligation, not
even if the spammer offers specific payment for the costs of relaying the
spam (a spam-stamp). Based on this judgement, all providers in the
Netherlands can impose an a priori ban on the sending of spam, even when
addressed to their business customers. This judgement therefore goes
further than the new spam legislation planned for the Netherlands
(expected to enter into force in April 2004). The latter only forbids the
spamming of private e-mail addresses but leaves business e-mail addresses
unprotected.
XS4ALL says it is delighted about the extensive new possibilities to
refuse spammers in advance, but is also concerned about the categorical
way in which the Supreme Court allows proprietary rights to prevail over
freedom of speech. XS4ALL, known for it's long-term legal battle against
Scientology, attaches great importance to the freedom of communication.
The advice of the Advocate-General was more in line with this position,
that providers do fulfill an important role in society and must put
forward sufficiently weighty grounds in order to refuse/prevent the use of
their facilities by third parties.
The ruling of the Supreme Court is far more absolute:
"Anyone who without authorisation makes use of property to which another
party has an exclusive right, and who thereby infringes that exclusive
right, is acting unlawfully vis-`-vis the beneficiary of the right, unless
there is justification. The right to freedom of speech does not constitute
such justification. This fundamental right cannot serve in principle to
justify transgressive use of property to which another party has exclusive
rights."
The appeal court judgement of 18 July 2002 has been set aside and the
judgement in the preliminary relief proceedings (7 March 2002) has been
upheld. The case is not referred to another court, and AbFab is ordered to
pay XS4ALL approximately EUR 4,500 in formal legal costs.
The ruling: (summary only, full translation available 26 March 2004)
http://www.xs4all.nl/uk/news/overview/abfab120304.html
The AbFab dossier:
http://www.xs4all.nl/uk/news/overview/abfab.html
==================================================================
7. BETTER EXCHANGE OF NEW LAWS INFORMATION SOCIETY
==================================================================
On 22 March, the European Union has signed the Council of Europe's
Convention on information and legal co-operation concerning 'Information
Society Services', without reservation as to ratification.
The aim of this Convention, which was prepared in close co-operation
between the Council of Europe and the European Commission, is to improve
the exchange of information between all 45 countries in Europe about
pending new legislation for the information society. The Council of Europe
will act as a clearing-house for draft legislation and provide a
harmonised approach to the regulation of on-line services at the
pan-European level. Member states of the European Union were already
familiar with this obligation, under the 'Transparency' directive
(98/48/EC), that allows the Commission to assess draft national
legislation affecting the information society as to its compatibility with
Community law. The evaluation of this directive in February 2003, was
highly positive, like the evaluation of it's mother-directive, nor
98/34/EC, that requires member states to give prior notification about any
technical regulation on products. Between 1999 and 2001, the Commission
received 1800 of these notifications, all published on a special
Commission website aimed at enterprises.
Article 4 of the Convention says: "Each Party shall transmit, where
practicable by electronic means, to the Secretary General of the Council
of Europe the texts of draft domestic regulations which are aimed
specifically at 'Information Society Services' and which are at a stage of
preparation in which it is still possible for them to be substantially
amended, as well as a short summary of these texts in English or French.
The Parties shall communicate the draft again under the above conditions
if they make changes to the draft that have the effect of significantly
altering its scope, shortening the timetable originally envisaged for
implementation, adding specifications or requirements, or making the
latter more restrictive."
Council of Europe Convention on information exchange (22.03.2004)
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=180&CM=1&DF=&C
L=ENG
Commission evaluation report 'transparency' directive, COM(2003)69
(13.02.2003)
http://europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Service-Search&LANGUAGE=
en&GUILANGUAGE=en&SERVICE=all&COLLECTION=com&DOCID=503PC0069
Commission website with notified drafts
http://europa.eu.int/comm/enterprise/tris/
==================================================================
8. ANALYSIS OF E-MAIL RESPONSE ROMANIAN MP'S
==================================================================
If you send an e-mail to a Member of the Romanian Parliament (MP), you
have less than 10 percent chance to get a reply. That is, if the MP you
are trying to reach has a public e-mail address to start with. Only a
quarter of the representatives offers an electronic contact address. The
conclusion from an e-mail response study by the e-democracy forum gives
government a transparency-rating of only 0.29 (on a scale from 0 to 5).
The results are based on an complex analysis performed over the Internet,
between 1 October and 30 November 2003. Two rounds of e-mails were sent to
MP's to analyse their responsiveness. The e-mails contained questions
about hot topics of the moment: the referendum for the New Constitution
and the conclusions of the European Commission Country Report for Romania.
The poll group was composed from the list of e-mail addresses published on
the official websites of the two chambers of the Romanian Parliament
(www.cdep.ro and www.senat.ro). The full list contained 123 public
addresses of Members of the Parliament, out of a total of 485 active MP's.
For the 123 e-mails sent each time, the researchers have received 10
replies (8.1 percent) regarding the New Constitution and 12 replies
regarding the Country Report (9.7 percent).
The results are in sharp contrast with recent data from the European SIBIS
project (Statistical Indicators Benchmarking the Information Society) that
show that of all Europeans, Romanian citizens are the most willing to
interact online with public institutions. The researchers recommend
standards for electronic communication with citizens, starting with the
obligation for every MP to publish a contact address, activate an
auto-reply and stick to an agreed maximum reply period.
Results @Parliament study (in English, 19.02.2004)
http://www.edemocratie.ro/editoriale/eng/replyreaction.pdf
(Contribution by Bogdan Manolea, Romanian legal expert)
==================================================================
9. FREE E-MAIL ADDRESS FOR EVERY BELGIAN
==================================================================
The Belgian government has announced plans to give every inhabitant of
Belgium a free e-mail address. That is, every Belgian can ask for a free
e-mail alias that can only be used to communicate with the different
governmental authorities. This address will be included in the national
population database, alongside with everybodies street address, city and
date of birth.
The deputy-minister for 'Government computerisation', Mr Vanvelthoven,
wishes to promote government communications with this plan, while at the
same time cutting costs and saving the environment.
"We will take care of course that all e-mail addresses will be protected
100 percent", VanVelthoven said. "The protection of privacy is most
important. Citizens that wish to be contacted by government, have to
communicate an existing e-mail address. We will attach an encrypted alias
to this address, so that we are sure that our addresses can not be abused
by third parties."
Een e-mail adres voor elke Belg (in Dutch, 13.02.2004)
http://mineco.fgov.be/information_society/administrations/e-government_BE/e-
government_nl_002.htm
Une adresse e-mail pour chaque Belge (French, 17.02.2004)
http://www.belgium.be/eportal/application?origin=newsFPSList.jsp&event=bea.p
ortal.framework.internal.refresh&pageid=contentPage&docId=33442
==================================================================
10. AGENDA
==================================================================
25 March 2004 - Deadline Call for Papers
The European Black Hat conference 2004 will take place in the Krasnapolsky
Hotel in Amsterdam, the Netherlands, from 17 to 20 May 2004. Papers are
invited especially about the European perspective on privacy, anonymity
and DRM.
http://www.blackhat.com/html/bh-europe-04/bh-europe-04-cfp.html
26-27 March 2004, Warsaw, Poland
Pan-European Forum on safer internet-issues, organised by the Media
division of the Council of Europe Human Rights Directorate. Deadline for
funding applications is 20 February 2004.
http://www.safer-internet.net/pconference.asp
19 April 2004, London England
One day conference on ubiquitous computing and it's possible impact on
privacy, democracy, and terrorism.
http://www.uclic.ucl.ac.uk/ubiconf/programme.html
15 May 2004 - Deadline Call for Papers
The Data Protection Authorities support a new award for privacy-papers,
named in honour of the US privacy expert Barbara Wellbery (1948-2003). The
award is granted annually by the Morrison & Foerster Foundation. The
winning paper will receive a USD 3,000 cash award. In addition, the winner
is invited to present his or her paper in Poland at the 26th International
Conference of Data Protection and Privacy Commissioners (14-16 September
2004).
http://www.cbpweb.nl/downloads_overig/med_barbara_wellberry_2.pdf
3-4 June 2004, Vienna, Austria - Free Bitflows conference
Conference and workshops about cultures of access and politics of
dissemination, organised by Public Netbase (AT), in collaboration with
Hull Time Based Arts (Hull, UK); V2_ (Rotterdam, NL); Bootlab (Berlin,
DE); interSpace Media Art Center (Sofia, BG).
http://freebitflows.t0.or.at
15-17 September 2004, Strasbourg, France
The Council of Europe is planning a major international conference on "The
Challenge of Cybercrime", which will bring together senior politicians,
computer industry leaders and experts from around the world. No online
information yet.
==================================================================
11. ABOUT
==================================================================
EDRI-gram is a bi-weekly newsletter about digital rights in Europe.
Currently EDRI has 14 members from 11 European countries. EDRI takes an
active interest in developments in the EU accession countries and wants to
share knowledge and awareness through the EDRI-grams. All contributions,
suggestions for content or agenda-tips are most welcome.
Newsletter editor: Sjoera Nas <[log in to unmask]>
Information about EDRI and its members:
http://www.edri.org/
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End of EDRi-news Digest, Vol 12, Issue 2
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