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1. EDRI-gram newsletter - Number 2.18, 22 September 2004
(EDRI-gram newsletter)
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Subject: EDRI-gram newsletter - Number 2.18, 22 September 2004
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============================================================
EDRI-gram
biweekly newsletter about digital civil rights in Europe
Number 2.18, 22 September 2004
============================================================
Contents
============================================================
1. Brussels workshop on telecom data retention
2. 90 civil right organisations endorse PI/EDRI statement
3. Meeting on Danish data retention draft
4. Dutch police report: traffic data seldom essential
5. DPA conference backed by civil society meeting
6. Civil society answers to DRM-consultation
7. Europarl Committee hears de Vries and Schaar
8. Autistici wins case over railroad parody site
9. Dutch EU presidency critical about software patents
10. 1 million entries in Wikipedia
11. Nominations Hungarian BBA
12. Agenda
13. About
============================================================
1. Brussels workshop on telecom data retention
============================================================
The consultation from the European Commission on new EU plans for
mandatory retention of telecom traffic data resulted in 65 answers, most
of them negative about any regime of mandatory data retention. Two thirds
of the answers came from industry (telephony and internet providers, both
individual companies and associations) and almost one third from civil
society, including the one from Privacy International and European Digital
Rights.
Besides, 3 national Data Protection Authorities filed an answer, and 1
(unnamed) ministry of Justice. Philip Gerard, responsible for the
regulatory framework within the Commission's DG Information Society,
presented these results during an open workshop on data retention on 21
September in Brussels. In spite of the explicit and repeated requests to
law enforcement authorities, none of them answered any of the specific
questions about the need for which data to be retained for what period of
time, Gerard said.
The main theme in the written answers from the industry was cost
reimbursement, Gerard summarised, while each of them underlined the major
technological differences between telephony, mobile telephony, internet
and future 3G-applications. Many respondents questioned the need for data
retention, and inquired about alternative solutions for law enforcement,
such as preservation (freezing) of the data of a specific suspect. Also,
many people referred to the need for improved co-operation between the
judicial authorities in Europe, and first assess the impact of such a new
obligation before creating new powers for law enforcement.
Officially the workshop was dedicated to the specific needs of law
enforcement and governments, and the current business practices. Painfully
absent from the agenda was a debate about privacy and fundamental human
rights. Andreas Dietl, the EU Affairs Director of European Digital Rights
addressed this in the opening session, and argued for a new follow-up
session specifically dedicated to the balance between law enforcement and
civil rights. His call was endorsed by many speakers that followed,
including Baroness Ludford from the UK (liberal) ELDR fraction, who
suggested this should be addressed in a separate parliamentary hearing.
Concluding the workshop, the Commission said more consultation was needed,
but it was clear that maybe the minimum term of 12 months should be
reconsidered if 6 months turned out to be long enough. Secondly, data
preservation should be investigated as a serious alternative to general
data retention. And finally, considering the total lack of input from law
enforcement, new research was necessary in order to strike a balance
between crime investigation and civil rights.
Full workshop report (21.09.2004)
http://www.edri.org/cgi-bin/index?id=000100000170
============================================================
2. 90 civil rights organisations endorse PI/EDRI statement
============================================================
90 civil rights organisations across Europe, the United States and other
countries around the world have signed a long statement against the recent
EU plans for mandatory data retention. Also 89 companies (mostly
specialised in IT) have endorsed the statement that calls the plans
'invasive, illusory, illegal and illegitimate'. The statement was an anwer
to an EU consultation on mandatory data retention, and presented during
the workshop described above.
The full list of endorsements includes international organisations like
APC International, the Association europeenne pour la defense des droits
de l'Homme (FIDH-AE) and the Transnational Party, with the personal
endorsement of Marco Cappato. Cappato was rapporteur of the Directive on
Privacy and Electronic Communication (2002/58/EC) and did his utmost best
to prevent the insertion of the current Article 15, which allows national
governments to introduce data retention legislation.
PI / EDRI statement against mandatory data retention (15.09.2004)
http://www.privacyinternational.org/issues/terrorism/rpt/responsetoretention
.html
Full list of endorsements (15.09.2004)
http://www.edri.org/cgi-bin/index?id=000100000162
============================================================
3. Meeting on Danish data retention draft
============================================================
"This is not something industry wants", a representative from the Danish
IT-industry Association stated at a meeting on data retention in
Copenhagen on 21 September 2004. The meeting was arranged in response to
the massive criticism raised by the industry, cooperative housing
associations, civil liberty groups and others earlier this year. The
meeting was convened by the Ministry of Justice to discuss next steps for
the draft Administrative Order and code of guidelines.
At the meeting it was decided to establish an expert working group with
industry representatives to assist in the drafting process. It was also
mentioned that the retention order most likely will exempt chatrooms,
which were included in the first draft. However, the concerns raised in
relation to disproportionality, discrimination, financial burdens, and
general frustration towards the role and function providers are asked to
play, were not met. The officials stressed that the drafting group will
keep an eye on the EU framework decision and the possible adoption of
this.
The Danish administrative order is a follow up to the 'anti-terror
package' which extended the scope of Section 786 of the Administration of
Justice Act (Act No. 378 of 6. June 2002). The Administrative Order aims
to regulate in detail the obligations of the telecommunication providers,
housing associations etc., specify how they must assist the Danish police
interfering with the secrecy of communication, what data should be
retained, and how it should be done.
When circulated for comments in May 2004, the draft was heavily criticized
for being disproportional and inconsistent, e.g. by letting private
entities store huge amounts of personal information while at the same time
being easy to evade, since e.g. smaller ISPs, libraries and universities
are not included.
Danish Ministry of Justice
http://www.jum.dk/
Digital Rights Denmark
http://www.digitalrights.dk/
Danish Data Protection Agency
http://www.datatilsynet.dk/
(Contribution by Rikke Frank Joergensen, EDRI-member Digital Rights Denmark)
============================================================
4. Dutch police report: traffic data seldom essential
============================================================
Telephone traffic data are only necessary to solve crimes in a minority of
police investigations. Most cases can be solved without access to traffic
data, with the exception of large fraud investigations.
These are the conclusions of a Dutch police report produced at the request
of the Dutch ministry of Justice. The report was recently obtained by the
Dutch civil liberties organisation Bits of Freedom through a public access
request.
The report undermines the Dutch government's support to the EU draft
framework decision on data retention. The report makes no case for the
proposed data retention as Dutch police already uses traffic data in 90%
of all investigations. The police can already obtain, with a warrant, the
traffic data that telecommunication companies store for their own billing-
and business purposes. The report also shows that the use of traffic data
is a standard tool in police investigations and it not limited to cases of
organised crime or terrorism.
The report is the result of an evaluation of past investigations by the
Dutch police of Rotterdam. Two-thirds of all investigations could have
been solved if no traffic data would have been available at all. The three
main purposes of traffic data in police investigations are: network
analysis (searching for associations of a person to other individuals),
tactical support for surveillance and checking of alibis (through GSM
location data).
Police investigators can compensate a possible lack of traffic data by
other investigative methods such as wiretapping, surveillance, a
preservation order for traffic data and a longer investigative period. The
report states that police officers seldom ask for traffic data older than
six months.
The report was never sent to the Dutch parliament although members of
parliament previously asked for research results about the effectiveness
of mandatory data retention. After Bits of Freedom published the report
new questions have been raised in the Dutch parliament about the reason
for withholding the report.
The use of (historic) traffic data in investigations (April 2003, in Dutch)
http://www.bof.nl/docs/rapport_verkeersgegevens.pdf
(Contribution by Maurice Wessling, EDRI-member Bits of Freedom)
============================================================
5. DPA conference backed by civil society meeting
============================================================
The protection of privacy and personal data is an integral part of the
principle of human dignity, as enshrined in all important documents on
Human Rights, including the Universal Declaration of Human Rights and the
draft European Constitution. It should therefore be a priority in any
civilised society. These were the conclusions of Stefano Rodot`, for many
years the Chairman of the Article 29 Working Group of EU Member States'
Data Protection Commissioners, at a Conference uniting 26 countries' Data
Protection and Privacy authorities last week in Wroclaw, Poland.
This annual Conference, held for the 26th time, had as a motto, inspired
by Rodot`, "Right to Privacy - Right to Dignity". It dealt with numerous
single issues, ranging from Radio Frequency Identification chips (RFID) to
employee's rights and from mass e-mails from political parties to privacy
issues related to "the need to deal with the past", in particular in
formerly Communist Central and Eastern European Countries.
But the single most important issue that almost all sessions focussed on
were the threats to privacy caused by measures proposed by the U.S. as
well as by EU member states for combating terrorism. While law enforcement
favours an approach where privacy is at best a nice add-on, and at worst,
detrimental to security, privacy commissioners like the EU Commissioner
Peter Hustinx see privacy as being an integral part of security and would
like the two to be dealt with as one unit: "You can't have one without the
other," Hustinx said. At the same time, as Ulrich Dammann from the German
Federal Commissioner's office pointed out, privacy is increasingly
becoming an international issue, which should be dealt with
internationally, possibly as a result of a kind of global "lex
informatica".
How to proceed in the future was also the big question at an international
symposium that EDRI hosted, together with partner organisations Electronic
Privacy Information Center and Privacy International, the day before the
Commissioner's meeting, also in Wroclaw. The answers given by attendants
from many countries in- and outside of the EU, were, if maybe a little
less visionary, at least as interesting as the ones given at the
Commissioner's meeting. Agreement was found on the need for increased
co-operation amongst civil society privacy activists as well as
collaboration with data protection authorities. One of the points where
civil society could certainly contribute is the establishment of best
practices for data protection authorities. In many countries, like Serbia,
speakers from those regions pointed out, this is still far away: they have
neither privacy laws nor independent authorities overseeing the protection
of privacy. Only 500 countries worldwide have introduced such measures so
far.
Lots of discussions took place outside the official meeting rooms, so that
the Wroclaw meeting may very well be the starting point for an improved
global co-operation between the official DPA's and the civil society data
protection people.
26th International Conference on Privacy and Personal Data Protection
(14-16.09.2004)
http://26konferencja.giodo.gov.pl/zaproszenie/j/en/
Public Voice Symposium: Privacy in a New Era: Challenges, Opportunities
and Partnerships (13.09.2004)
http://www.thepublicvoice.org/events/wroclaw04/
(Contribution by Andreas Dietl, EDRI EU Affairs Director)
============================================================
6. Civil society answers to DRM-consultation
============================================================
In response to an informal consultation by the European Commission on a
report on the future of Digital Rights Management (DRM), several digital
rights organisations have sent in statements. The report was prepared by a
High Level Group consisting of companies and industry groups. As user
representative only the European Consumers Union (BEUC) was invited to
participate, and it withdrew its support from this report.
EDRI-member FIPR points out the democratic failure of this process. "The
consumer representative (BEUC) was unable to subscribe to most of its
recommendations. It is quite improper for the Report to nonetheless
represent its findings as a 'consensus'."
The German group Privatkopie.net "urges the commission to create
conditions under which the privacy of information users and their 'right
to read anonymously' are guaranteed." A similar point is made in the
Italian response (including Associazione Software Libero and the Italian
Linux Society). "We notice that leaving it to 'rights holders to build
balanced business practices with their customers' is a short-sighted
position because it does not consider that the balance between right
holders and society - the pivot of all laws on human intellectual
production and on the related economic exploitation - cannot be guaranteed
neither by one of the two sides alone nor by the market tout court." And
the Italian paper concludes with the demands that no personal or
characteristic data of the user should be required, detected or used when
not absolutely necessary to the authentication mechanism and DRM systems
may not include or allow user tracking features.
Privatkopie.net also criticises the legal reference in the report to the
origin of the private copying exception in the 1960s in Germany. The
report states it "emerged in view of the de facto non-enforceability of
the reproduction right", but omits to mention "the central argument of the
Supreme Court decision that led to the introduction of the exception: that
enforcement of copyrights in private homes would conflict with the
inviolability of the private sphere. This argument still holds, as DRMs
structurally violate the private sphere."
"The Report does not bother itself with these or, in fact, any arguments
with respect to the purpose of the private copying exception. It simply
posits: "A priority of all stake-holders is the effective deployment and
legal protection of DRMs..." We would like to emphasise again that the
stakeholders in question expressly exclude the single representative of
consumers invited to the HLG, and they also exclude a great number of
other stakeholders whose priority it is to prevent DRM, among them many
leading media and especially cryptography experts."
The UK Campaign for Digital Rights urges the European Commission to amend
the Copyright Directive of 2001 "to permit circumvention of technological
protection measures where such circumvention is undertaken for lawful
purposes (e.g., writing a computer programme which may read one's own
Microsoft Word documents once Microsoft introduces DRM to its Office
suite)."
Privatkopie.net response to DRM consultation (20.09.2004)
http://privatkopie.net/files/privatkopie-bof_on-DRM.pdf
Several Italian associations, communities and individuals (20.09.2004)
https://gforge.miu-ft.org/download.php/224/High.Level.Group.on.Digital.Right
s.Management.Final.Report.0.4.en.pdf
FIPR response to DRM consultation (20.09.2004)
http://www.fipr.org/copyright/ipr-consult.html
CDR response to DRM consultation (20.09.2004)
http://www.ukcdr.org/issues/drm/cdr_eu_resp.pdf
============================================================
7. Europarl Committee hears de Vries and Schaar
============================================================
The European Parliament's LIBE Committee (Civil Liberties, Justice and
Home Affairs) organised an interesting opening session of the new
parliamentary year on 21 September. For the occasion, the parliamentarians
were joined by colleagues from a number of national parliaments. They had
invited two speakers representing the opposite poles of EU Justice and
Home Affairs policy. First, Gijs de Vries, who was nominated the EU's
anti-terrorism co-ordinator in March after the Madrid bombings, followed
by Peter Schaar, the chairman of the Article 29 Working Party, which
brings together national Data Protection Commissioners from all 25 EU
Member States.
Mr. de Vries, who was accorded considerably more speaking time than Mr.
Schaar by the LIBE Chairman, French Liberal Jean-Louis Bourlange, spoke on
EU counter terrorism policy in very general terms, emphasising his role to
support national authorities, not to patronise them. MEPs concerns were
mostly on the transposition of measures decided in the EU as part of the
policy to combat terrorism in the Union's member states.
Mr. Schaar picked three issues as examples, all of which are central in
his work, and all of which show how insufficient the Article 29 Group,
which may deal only with so-called First Pillar issues, is in a EU where
more and more issues, especially in the fight against terrorism, also
touch the so-called Third Pillar of Police and Judicial Co-operation. He
announced that the Article 29 Group will urge EU decision makers to
establish a similar group to deal explicitly with Third Pillar issues.
Mr. Schaar recalled that data protection has to take the usefulness of a
practice into account when deciding if such a practice is proportionate.
Referring to the example of the Passenger Name Record transfer the USA, he
said he could not see how such details as a traveller's e-mail address or
phone number in the U.S. could add sufficient surplus value to justify
such an intrusion of privacy.
In the case of biometric identifiers in EU member states' travel
documents, Mr. Schaar doubted that the principle of proportionality was
respected. He recalled that biometrics added security only if the whole
procedure of issuing them was secured. He said it was of foremost
importance that the biometric data were stored on the documents themselves
only, in a secure manner, and not in any kind of centralised database. He
named biometrics as one of the cases that show the lack of democracy in EU
law-making, especially when dealing with privacy-related issues.
Biometrics were decided in the ICAO, a UN body without any democratic
accountability, as a de facto industry standard, and without any security
features. They were then imposed on the EU by the Union's Council, which
does not hold a parliamentary mandate either. Finally, the EU Parliament
will only be consulted, without a right to amend the Council's decision.
And in the very end, member states will be confronted with a EU Framework
Decision they will have to transpose - with very little room for the
national parliaments to change anything.
The third example Schaar named was the plan for retention of traffic data
resulting from telecommunication and internet usage. Again he expressed
doubt about the proportionality of that measure. He said event-based
freezing of particular data could be an alternative, if certain standards
of data protection were met. Data retention was just one example of a
growing tendency to impose on private companies an obligation to store
data for law enforcement and surveillance purposes - a tendency which made
it much harder for data protection commissioners to look into what's
actually happening to the data.
Article 29 Working Party
http://europa.eu.int/comm/internal_market/privacy/workingroup_en.htm
Council of the European Union: Fight against terrorism
http://ue.eu.int/cms3_fo/showPage.asp?id=406&lang=en&mode=g
(Contribution by Andreas Dietl, EDRI EU Affairs Director)
============================================================
8. Autistici wins case over railroad parody site
============================================================
The Italian hostingprovider Austici does not have to remove a satirical
website it hosts with a parody on the website of the Italian railroad
company Trenitalia. On 14 September 2004 the court of Milan rejected a
request from Trenitalia to remove the 'offending content' and impose a
fine on the provider. The court decided that the parody fell under the
protection of the constitutional right on freedom of expression granted in
Article 21, and decided Trenitalia had to reimburse the legal costs of
5.100 euro.
Trenitalia could opt for a (much longer and more expensive) civil case
against Autistici, but given the clear motivation from the court on the
right to create satire, it seems unlikely such an appeal will yield any
results.
The case started half July with a letter from Trenitalia to autistici.org
announcing the court case. Trenitalia demanded the provider should
immediately remove the site, publish an advertisement in 2 national
newspapers about the removal of the site and do not use any metatags
referring to trenitalia. On top of that, the railroad lawyers demanded
refunding of moral and actual damages to the company.
After a first hearing on 3 August 2004 the judge ordered autistici.org to
comply with all these demands, including the obligation to invest aprox.
20.000 euro in publication of advertisements in the 2 national newspapers.
Fortunately, the court of Milan, after having heard the defense of
autistici on 7 September 2004 decided to overrule the preliminary
proceeding, and acquit the provider from all charges.
Autistici file on Trenitalia case
http://www.autistici.org/ai/trenitalia/index.en.php
Preliminary judgement (in English, 03.08.2004)
http://www.autistici.org/ai/trenitalia/sentenza-03-08-2004.en.html
Final judgement (in Italian, dated 07.09.2004)
http://www.autistici.org/ai/trenitalia/documenti/5_sentenza_ricorso.html
Parody website
http://autistici.org/zenmai23/trenitalia
============================================================
9. Dutch EU presidency critical about software patents
============================================================
The Dutch EU presidency has commissioned a report with very critical
remarks about software patents. "The mild regime of IP protection in the
past has led to a very innovative and competitive software industry with
low entry barriers. A software patent, which serves to protect invention
of a non-technical nature, could kill the high innovation rate.(...) Only
very few European companies have prepared themselves for the consequences
of a software patent regime. It raises the question how the introduction
of the European software patent interacts with a European strategy based
on the widespread use of ICT's." (page 50)
As commissioner of this report, the Dutch Minister of Economical Affairs,
Brinkhorst, makes a remarkable shift in position. In the European Council
of ministers of economical affairs on 18 May, he agreed with the Council's
position in endorsing software patents. The Dutch parliament than, on 1
July 2004, adopted a motion urging him to change his vote into an
abstention. He didn't respond in a manner that satisfied the parliament,
and new questions were raised on 31 August.
The report 'Rethinking the European ICT Agenda' presents 10 so-called
'breakthroughs' to rethink and revitalise the Lisbon Agenda.
Rethinking the European ICT Agenda (August 2004)
http://www.ez.nl/content.jsp?objectid=24583
============================================================
10. 1 million entries in Wikipedia
============================================================
On 17 September 2004, the experimental free online encyclopaedia Wikipedia
reached 1 million (approved) entries. Every internet user can write
entries, and suggest improvements for any other entry. This idea has
proven extremely viable in the last 4 years. Wikipedia now provides
information in 100 languages, 14 of which offer more than 10.000 articles
each. With 140.000 articles, Germany is the second biggest contributor to
the encyclopaedia after the UK.
To improve co-ordination among all the volunteers, Wikipedia launched a
quarterly newsletter in 12 languages. The first edition mentions the
initiative to put the German Wikipedia on a CD, and distribute it via the
publishing house Directmedia Publishing. The publisher has announced it
wants to distribute 30.000 CDs for free to all involved people in Germany,
packaged with promotion for the commercial software DigiBib. Under the
terms of the GNU Free Documentation Licence (GFDL) all third parties can
reuse Wikipedia articles as long as they pass on that right to others.
30 volunteers are now meticulously checking all the facts, details and
copyright issues in the German Wikipedia before it will be stored on the
CD. This will take them approximately 1 month.
Wikipedia press release (20.09.2004)
http://meta.wikimedia.org/wiki/Wikimedia_press_releases/One_million_Wikipedi
a_articles_%28int%27l%29
Eine Million Artikel in Wikipedia (in German, 20.09.2004)
http://www.heise.de/newsticker/meldung/51243
============================================================
11. Nominations Hungarian BBA
============================================================
In Hungary, the fourth annual ceremony of the Big Brother Awards will take
place on 25 November 2004. Nominations for the person, company and
organisation that have excelled in violating privacy and enhancing control
over citizens can be entered via a webform until 28 September. From 11 to
25 October internet users will be able to vote for the winners from a
shortlist.
Nomination for Big Brother Awards Hungary
http://www.bigbrotherawards.hu/NTD/index.php
============================================================
12. Agenda
============================================================
28 September 2004, Paris, France
One day conference "Les reponses aux defis du peer to peer" (Answers to
P2P challenges) at the French Senate, organised by the 'Forum des droits
sur l'Internet'.
http://www.defis-p2p.org/
29-30 September 2004, Paris, France
5th Worldwide forum on electronic democracy, organised by Mr Andre
Santini, French Member of Parliament and president of the Global Cities
dialogue.
http://www.issy.com/statiques/e-democratie/index_EN.htm
30 September-3 October 2004, Berlin, Germany
New EDRI-member FIfF is organising a conference '20 Years of FIfF -
ReVisions of Critical Informatics'.The bilingual (German, English)
conference will take place at the Humboldt University in Berlin.
http://www.fiff.de/2004/
4 October 2004, London, UK
The founder of the Creative Commons project, Stanford University law
professor Lawrence Lessig will be launching the Creative Commons UK
licenses at a public lecture at the University College of London. It is
from 12 noon - 2pm at the Edward Lewis Theatre in the Windeyer Building.
http://www.cs.ucl.ac.uk/events.html#Creative
9-10 October 2004, Cambridge, UK
EDRI-member FIPR is organising a European workshop on the consultation
currently being run by the European Commission on the EU legal framework
in the field of copyright and related rights (whose deadline is at the end
of October).
http://www.fipr.org/
16 October 2004, Emmen, Switzerland
Swiss Big Brother Awards
http://www.bigbrotherawards.ch
26 October 2004, Vienna, Austria
Austrian Big Brother Awards
http://www.bigbrotherawards.at
29 October 2004, Bielefeld, Germany
German Big Brother Awards
http://www.bigbrotherawards.de
============================================================
13. About
============================================================
EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 15 members from 11 European countries. European Digital
Rights 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.
Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 2.0 License. See the full text at
http://creativecommons.org/licenses/by/2.0/
Newsletter editor: Sjoera Nas <[log in to unmask]>
Information about EDRI and its members:
http://www.edri.org/
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