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The next EU battle: Link tax

By on February 16, 2017 in Big Media, Copyright, EU, Free Information, Intellectual Property, Internet, Link wars

Opponents of the plan, including some small web publishers, worry it could choke traffic to their sites by creating a thicket of regulations that will dissuade Google and other platforms from driving users to them. These critics also argue that a publisher’s right will create a “link tax” (a phrase that supporters liken to a slur) but won’t achieve its backers’ main aim: to save the news sector’s broken business model. (…)

Comodini Cachia will present a report next month, including suggested amendments to the proposal, but it’s unclear whether the hard protections demanded by the publishers will survive.

Politico.eu: Plan to make Google pay for news hits rocks »

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What is wrong with the EU Terrorism Directive?

By on February 15, 2017 in Big Brother, Civil rights, EU, Human rights, Police state, War on Terror

Tomorrow – Thursday 16 February – the European Parliament votes on the EU Terrorism Directive. EDRi lists some of the things being wrong with this directive:

  • There are gaps in the harmonisation of the definition of terrorist offences. The Directive uses ambiguous and unclear wording, giving an unacceptably wide margin of manoeuvre to Member States. For example, the Directive criminalises “glorifying” terrorism without clearly defining it. This won’t prevent abuses experienced in countries like France.
  • “The criminalisation of the attempt is also extended to all offences…with the exception of receiving training and facilitating travel abroad”. This creates risks for fundamental rights and legal certainty. In addition, the European Parliamentary Research Service has recognised that “establishing a ‘terrorist intention’ may prove a challenge.”
  • The Directive’s scope touches on activities with little to no direct relationship to actual terrorist acts. For instance, hacking-related activities can be terrorist offences. Attempting or threatening to hack an information system can be punished as a terrorist offence in a Member State. Teaching somebody how to attack an information system (e.g. hacking) can be a terrorist offence. Seeking information on how to conduct an attack to an information system, can lead to a charge for committing a terrorist offence. In addition, inciting somebody to teach how to hack an information system can be a criminal offence.
  • Establishment of new offences, such as “receiving training for terrorism”, which includes consulting (non-defined) terrorist websites. Consulting (non-defined) terrorist websites can be a terrorist offence if the person is judged to have had a terrorism-related purpose and intention to commit a terrorist offence. However, the Directive says that criminal intent can be inferred from the type of materials and the frequency in which an individual consults websites, for example. On top of this, it will not be necessary for a terrorist offence to be committed or to “establish a link” to other offences in order to be punished. The Directive also says that inciting someone to consult “terrorist websites” can be punishable by Member States.
  • Member States can impose criminal liability on companies failing to remove or block terrorist websites.
  • The process for adopting the proposal avoided all of the elements of good law-making. It was made in December 2015 without meaningful consultation, public debate or even an impact assessment. To give an idea of the importance of impact assessments, we recall that the impact assessment for amending the Framework Decision 2002 looked at the available information and opted not to recommend the adoption of blocking measures because, among other dangers, it creates a risk of jeopardising investigations and prosecutions. The 2007 impact assessment also stated that “the adoption of blocking measures … can only be imposed by law, subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, excluding any form or arbitrariness or discriminatory or racist treatment.”. In the Terrorism Directive, blocking measures can be imposed by non-legislative action. In addition, it is not even clear whether regulating non-regulated “voluntary” measures by internet companies falls under the legal basis of the Directive.

It’s a mess. A dangerous mess.

Read more and get all the links at EDRi: The time has come to complain about the Terrorism Directive »

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Is this the end of »mere conduit«?

By on February 13, 2017 in Big Entertainment, Censorship, EU, Free Information, Intellectual Property, Internet, Sweden

A central principle in EU Internet-related legislation is the so-called mere conduit rule.

The IT Law Wiki:

Under the mere conduit principle of the EU E-Commerce Regulations of 2002,[1] network operators have no legal liability for the consequences of traffic delivered via their networks.

Wikipedia:

Who an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. The acts of transmission and of provision of access include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

Today’s Swedish court ruling (and earlier European court rulings) to block The Pirate Bay is in direct conflict with this principle, as stated in the EU eCommerce directive.

The grounds for this seems to be the EU InfoSoc directive. The argument is that mere conduit does not apply when it concerns traffic to sites that do not adhere to notifications to remove content that is deemed illegal, e.g. when it comes to copyright infringements and intellectual property.

But this doesn’t make sense.

You cannot have a rule stating that ISP:s have no legal liability for the consequences of traffic relayed via their networks – unless illegal. That is the same as saying that ISP:s do have legal liability for the consequences of traffic relayed via their networks. And this is the opposite of what is stated in the eCommerce directive.

And even though the ISP in question have not been charged with any criminal offense – it is to be considered liable, as the verdict states that it will have to pay a hefty fine unless blocking The Pirate Bay. (The ISP also had to pay the copyright owners legal fees.)

I would say that we have a clear case of conflicting laws. And as the blocking verdict is only an interpretation of the InfoSoc directive, while the eCommerce directive states a very clear principle – the latter shall apply.

But I´m no lawyer. Reactions, opinions, and feedback are welcome in the comments below.

/ HAX

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“EU agency: too soon to regulate Bitcoin”

By on February 7, 2017 in Bitcoin, Blockchain, Economics, EU

EU Observer:

It is too early to regulate the so-called block chain technology that underpins virtual currency Bitcoin, the European Securities and Markets Authority (ESMA) said on Tuesday. “At this stage, it is premature to fully assess the changes that the technology could bring and the regulatory response that may be needed,” ESMA said. It added that the new technology may benefit the financial sector by reducing costs and increasing efficiency.

Link 1 » | Link 2 »

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EU Data Protection – what about it?

By on January 30, 2017 in Big Data, Data Protection, EU, Privacy

How will EU data protection be noticed for ordinary people? Euronews puts the question to Jan Philipp Albrecht, Green member of the European Parliament from Germany.

The improvement in substance is that there’s far more transparency under the new rules, which means that you will have more detailed information policies about what your data are processed for, which purposes if they are given to others, and there will be also in general more possibilities to get a view of which data are there about you. And you have new rights like data portability and the right to be forgotten. So it will be far easier for consumers to control their personal data.

Euronews interview »

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Trump executive order might freeze all transfer of personal data from the EU to the US

By on January 26, 2017 in Big Brother, Big Data, Civil liberties, Data Protection, EU, EU-US Privacy Shield, Privacy, surveillance, Trump, US

This is interesting. US President Trumps executive order on »public safety« directs all federal agencies to exclude non-US citizens / non-permanent residents from the Privacy Act protection from mass surveillance.

It is very unclear what this will lead to when it comes to transfer of European personal data to the US. Under the so-called EU-US Privacy Shield, such data shall enjoy adequate privacy protection. There is already criticism that the arrangements in this agreement are too weak. And today’s executive order might invalidate them altogether.

If so, there can be no transfer of personal data from the EU to the US. This would have far-reaching consequences for US companies, from e.g. retail business to social networks.

The EU Commission seems to hope for special US legislation related to the Privacy Shield. But the question is if the above executive order doesn’t trump any such schemes.

/ HAX

Update / more input:
• Techcrunch: Trump order strips privacy rights from non-U.S. citizens, could nix EU-US data flows »
• Engadget: Trump signs executive order stripping non-citizens of privacy rights »
• EU Observer: Trump’s anti-privacy order stirs EU angst »
• Techdirt: Already Under Attack In Top EU Court, Privacy Shield Framework For Transatlantic Data Flows Further Undermined By Trump »

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EDRi on EU ePrivacy regulation

By on January 26, 2017 in Big Data, Data Protection, EU, Privacy

The ePD has two functions. Firstly, it provides additional clarity and predictability to allow the principles in the general legislation to be implemented in the complex environment of communications. Secondly, it serves as the EU legislative instrument to give meaning to the fundamental right to freedom of communications. (…)

The process of consultation and polls have shown that citizens are concerned about their privacy and about how companies make use of their personal information online. Although the Commission has rightly identified and addressed most of the key issues and objectives in the proposal, strong forces seem to have watered down the text considerably, compared to the earlier version that was leaked in December 2016.

EDRi » e-Privacy Regulation: Good intentions but a lot of work to do »

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