EDRi-gram newsletter - Number 10.24, 19 December 2012

ECtHR: Blocking Google Sites in Turkey breaches human rights

This article is also available in:
Deutsch: EGMR: Sperre von Google-Seiten in der Türkei verstößt gegen Mensche...

The European Court of Human Rights (ECtHR) decided on 18 December 2012 that the Turkish Court decision to block the entire Google Sites breached the Freedom of Expression as foreseen in Article 10 of the European Convention of Human Rights (ECHR).

Turkey has a long history of censorship policy regarding Internet content and blocking of websites. A survey commissioned by OSCE in 2012 has actually shown that the Turkish authorities were able to block the access to Internet of about 3700 websites, including foreign websites such as YouTube, Geocities, DailyMotion and Google.

In this case brought to the ECtHR, the applicant had a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters. But Google Sites was blocked entirely after 23 June 2009 when the Denizli Criminal Court of First Instance ordered the blocking of an Internet site the owner of which had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.

The blocking order was submitted for execution to the Telecommunications Directorate (TİB). Shortly afterwards, the TİB asked the court to extend the scope of the order by blocking access to Google Sites, which hosted not only the site in question but also the applicant’s site. The TİB stated that this was the only technical means of blocking the offending site, as its owner lived abroad.

The TİB blocked all access to Google Sites and the applicant was thus unable to access his own site. All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court. In a letter sent to the Court in April 2012 the applicant stated that he was still unable to access his own website even though, as far as he was aware, the criminal proceedings against the owner of the other site had been discontinued because it was impossible to determine the identity and address of the accused who lived abroad.

In the Chamber judgement of this case (application no. 3111/10), the Court held that a violation of Article 10 on Freedom of Expression has occurred by blocking access to Google Sites which hosted many sites by its service.

The Court reiterated that a restriction on access to a source of information was only compatible with the Convention if a strict legal framework was in place regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses. ECtHr stated that "there was no indication that the Turkish Criminal Court had made any attempt to weigh up the various interests at stake, in particular by assessing whether it had been necessary to block all access to Google Sites." The Turkish courts should have had regard to the fact that such a measure would render large amounts of information inaccessible, thus directly affecting the rights of Internet users and having a significant collateral effect.

The Court also pointed out that Article 10 § 1 of the Convention stated that the right to freedom of expression applied “regardless of frontiers”.

“Today’s decision is a wake-up call for states that sweeping blocking injunctions are a serious violation of free speech on the Internet” explained Dr. Agnes Callamard, EDRi member ARTICLE 19 Executive Director.

Press release: Restriction of Internet access without a strict legal framework regulating the scope of the ban and affording the guarantee of judicial review to prevent possible abuses amounts to a violation of freedom of expression (18.12.2012)
http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4202...

Court decision Case 3111/10 - AFFAIRE YILDIRIM c. TURQUIE (only in French, 18.12.2012)
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115401#{%2...

Turkey: Landmark European Court Decision finds blanket Google ban was a violation of freedom of expression (18.12.2012)
http://www.article19.org/resources.php/resource/3567/en/turkey:-landma...

EDRi-gram: How many websites does Turkey block? (2.06.2010)
http://www.edri.org/edrigram/number8.11/number-websites-blocked-turkey

EDRi-gram: Turkey extends the censorship of YouTube (16.06.2010)
http://www.edri.org/edrigram/number8.12/turkey-extends-blocking-youtub...

EDRi Observer Alternative Informatics Association press release on the decision (only in Turkish, 18.12.2012)
http://bit.ly/TuL8G6

WCIT: what happened and what it means for the Internet

This article is also available in:
Deutsch: WCIT: Was passiert ist und was es für das Internet bedeutet

After two weeks of intensive negotiations, the World Conference on International Telecommunications (WCIT) adopted the revised International Telecommunications Regulations (ITRs), a controversial treaty, which has been viewed by many as an attempt by the International Telecommunications Union (ITU) and Member States to take over the Internet.

The conference has been hailed as a success by the ITU with 89 Member States signing the treaty. Meanwhile, others have pointed out that it failed to achieve consensus leading to 55 Member States, including the United States, Canada, Australia, the United Kingdom and several other EU countries not signing the treaty.

So what happened in Dubai? Clearly, at the heart of the negotiations was the question whether the ITRs were going to cover the Internet and broader Internet policy issues. Despite repeated assurances of the ITU Secretary-General Dr Hamadoun Toure that the ITRs were not about the Internet or Internet Governance, it was abundantly clear that the ‘I’ word was on the minds of delegates as they set to discuss the Preamble to the ITRs and various other provisions about spam and security.

After over a week of stalemate, matters came to a halt when the Iranian delegate called for a vote on the inclusion of the “right of access of Member States to access international telecommunications services” in the Preamble to the ITRs. The proposal came in as delegates were debating the inclusion of human rights language in that same Preamble. The amendment was passed by a vote of 77 for, 33 against and 8 abstentions. For several western Member States this crossed a red line amid concerns over several other provisions and a controversial Internet Resolution contained in the “package” proposed by WCIT Chair Mohamed Nasser Al Ghanim (UAE).

As the Chair highlighted several times, the “package” was a compromise text, which was meant to achieve a “delicate balance” between the various interests at stake. In particular, it introduced a reference to “human rights obligations” in the Preamble to the ITRs, partly with a view to assuage concerns about the possible negative implications for freedom of expression and the right to privacy which may arise as a result of the provisions on security and spam. Another clause was also added making clear that the ITRs did not address the content-related aspects of international telecommunications services.

At the same time, these elements failed to address the basic objection of several Member States, led by the US, that spam brought in content-related issues was inconsistent with the new clause excluding content from the ambit of the ITRs. Moreover, there were continuing concerns over the vague language used in Article 5A in relation to ‘network security’, which was seen by many as legitimizing censorship and sweeping surveillance practices by Member States. Finally, the “Internet Resolution” proved to be a particularly sticking point for non-signatory countries, not least because of the way in which it was adopted. The resolution “to foster an enabling environment for the greater growth of the Internet” had been included as part of a deal whereby the word “Internet” would be kept out of the treaty text and pushed back in a Resolution. On 13 December 2013, the Chair baffled EU delegates and others by passing the Resolution after “taking the temperature of the room”- without a vote -just minutes before the close of a plenary session in the wee hours of the morning. While the Resolution is non-binding, it overly emphasises the role of States in Internet–policy making at the expense of the multi-stakeholder model, which has been the hallmark of Internet Governance. It also unduly broadens the mandate of the ITU beyond its traditional technical remit to include Internet public policy matters despite assurances of the ITU Secretary-General to the contrary.

The introduction of a “right of Member States to access international telecommunications services” was the nail in the coffin. As the debate took place on the back of a discussion about human rights, the amendment was widely regarded as an attempt to legitimise state control over the Internet. The reality might be more complex than that. In particular, it has been argued that this right could be used to force Internet application, content and service providers to provide services to particular organizations and in territories even if they don’t want to.

So what should we make of the ITRs? Although it fell well below international standards of freedom of expression, as a compromise text, the Chair’s package was just about acceptable. And even now, the ITRs package remain a high level document, the word Internet does not feature in the main text of the treaty and a number of contentious proposals, such as the ETNO proposal, have been averted. It also contains a reference to human rights, which is unusual but welcome for a telecommunications treaty.

At the same time, the vague language of the provisions about security and spam could be used to give a veneer of international legitimacy to undue restrictions on free speech and privacy online. The Internet Resolution was politically unacceptable and irretrievably tainted by the deeply unsatisfactory process( It later emerged that this process was common ITU practice, which was meant to help achieve consensus) where by it was adopted. In a climate of distrust about some of the Member States and the ITU’s true intentions, there were serious reservations to be had regarding the revised agreement, which was not even necessary in the first place. As the UK concluded, “My delegation came to work for revised ITRs. But not at any cost. We're not able to sign a bad agreement that does nobody any favours and makes nobody happy”.

Are the ITRs going to make any real practical difference to the Internet as we know it? It seems unlikely, at least for now. At the same time, the split in the number of countries who signed the agreement and those who didn’t clearly shows widely different views about the future of the Internet and the provision of telecommunication services. The WCIT also brought into sharp relief the concerns of developing countries that seek greater access to the Internet.

Looking ahead, it is clear that these and other concerns will have to be recognized and addressed in the various multi-stakeholder fora where Internet policy is being discussed. As the ITU seeks to assert its relevance in Internet policy discussions, particularly around cybercrime, Internet advocates will have to continue pushing for greater access and transparency of this organization in line with the multi-stakeholder model of Internet Governance. These changes are vital and need to take place as soon as possible as a slew of other meetings that will further shape the debate over the role of governments and the ITU lie ahead beyond WCIT in the run up to the World Summit on the Information Society (WSIS+10).

WCIT 2012
http://www.itu.int/osg/wcit-12/highlights/signatories.html

Third Series of Texts Submitted by Editorial Committee to the plenary meeting – WCIT 2012 (13.12.2012)
http://files.wcitleaks.org/public/S12-WCIT12-C-0065!!MSW-E.pdf

What really happened in Dubai? (13.12.2012)
http://www.internetgovernance.org/2012/12/13/what-really-happened-in-d...

Beyond WCIT – WSIS+10 and the coming year in Internet governance (14.12.2012)
http://news.dot-nxt.com/2012/12/14/beyond-wcit-%E2%80%93-wsis10-and-co...

A19's legal analysis of the initial draft of the future ITRs (19.10.2012)
http://www.article19.org/resources.php/resource/3483/en/itu:-draft-of-...

WCIT WATCH: Analysis of the new ITRs Part I (14.12.2012)
https://www.accessnow.org/blog/2012/12/14/wcit-watch-analysis-of-the-n...

Consensus Crumbles as Nations Split on Internet Governance (14.12.2012)
https://www.cdt.org/pr_statement/consensus-crumbles-nations-split-inte...

(Contribution by Gabrielle Guillemin - EDRi member Article 19)

Innovation at risk in EU - the EU unitary patent adopted by EP

This article is also available in:
Deutsch: Innovation in Gefahr: EP verabschiedet einheitliches EU-Patent

Despite strong and long opposition and criticism from patent lawyers, legal experts, SMEs and civil society groups , on 11 December 2012, the European Parliament (EP), putting at risk any innovatory efforts, adopted a flawed proposal of unitary EU patent and patent litigation court system.

The EP approved, right after the Council of Ministers, a package including a regulation for the creation of the unitary patent system, a regulation for the setting up of a language regime for the patents and an international agreement for the EU member states establishing a single, specialised jurisdiction to hear patent cases.

The supporters of the proposal argued that the unitary patent would cut application and translation costs while giving more legal certainty to inventors.

Yet this vote practically leaves the EP without any powers in having a say in the innovation area, giving the European Patent Office open way to continue granting patents on software which will harm competition and innovation.

Also, the approved proposal will very likely create confusion due to its lack of transparency and uniformity. It’s going to be difficult to find out clearly how a patent may be used. Moreover, there are no limitations and exceptions, not even for research and no provision for compulsory licenses.

"We are disappointed that so many MEPs were prepared to throw Europe's researchers and innovators under the bus just to achieve a deal, any deal. It is natural that after nearly four decades of discussions on a single patent system for Europe, most of those involved simply want the debate to end." said Karsten Gerloff, President of the Free Software Foundation Europe.

This unitary patent system will lead to nothing unitary but, on the contrary, to a fragmentation of the internal market, as patents would not be uniformly enforceable in all EU member states and, there will be four overlapping levels of patents which will only create confusion and risks for innovators and companies. This confusion will be doubled by the fragmentation of the jurisprudence resulted from the proliferation of courts that will be able to handle patent litigations. This will lead to an increase of the litigation costs also making the evaluation of patent risks harder.

Italy and Spain have yet refused to join the unitary patent system because of the translation agreements. Patents will be granted only in French, German or English, for the time being. The two countries also challenged the “enhanced cooperation” basis for the agreement on several grounds, considering that the Council lacked the authority to agree on enhanced cooperation.

It is not yet clear whether the court system, agreement and regulations will be challenged in the European Court of Justice by Spain or Italy or by other court litigants and whether they’ll be found to comply with EU law. In patent attorney Daniel Brook’s opinion, there are a lot of practicalities to be solved such as the judges, infrastructure of the patent registry and courts, as well as costs.

Loucas Louca, justice and public order minister for Cyprus (which holds the current EU Presidency) stated that a draft international accord for the patent court system will be ready in February 2013.

The EP’s website explains that “the international agreement creating a unified patent court will enter into force on 1 January 2014 or after thirteen contracting states ratify it, provided that UK, France and Germany are among them. The other two acts would apply from 1 January 2014, or from the date when the international agreement enters into force, whichever is the latest. Spain and Italy are currently outside the new regime, but could decide to join in at any time."

European Unitary Patent And Court Becomes Reality (11.12.2012)
http://www.ip-watch.org/2012/12/11/european-unitary-patent-and-court-b...

First, do no harm: European Parliament must delay vote on unitary patent (8.12.2012)
http://fsfe.org/news/2012/news-20121208-01.en.html

European Parliament adopts deeply flawed unitary patent, gives up power over innovation policy (11.12.2012)
http://fsfe.org/news/2012/news-20121211-01.html

EDRi-gram: Unitary patent brings back the software patents debate (12.09.2012)
http://www.edri.org/edrigram/number10.17/unitary-patent-software-paten...

EC decided: no need for more databases for law enforcement

This article is also available in:
Deutsch: Europäische Kommission: Keine weiteren EU-weiten Datenbanken für Str...

On 7 December 2012, the European Commission issued a communication regarding information exchanges within EU, concluding that no new law enforcement databases were needed presently.

This communication comes as a result of the Stockholm Programme invitation for the Commission to assess the necessity of a European Information Exchange Model based on an evaluation of existing instruments, and it is based on the "Overview of information management in the area of freedom, security and justice" issued by the Commission in 2010. Basically, the document concludes that information exchange generally works well within the EU and therefore there is no need for more EU law enforcement databases. The communication also states that EU instruments should, however, be better implemented, that the exchange of information should be organised more consistently, that high data quality should be provided and data protection rules should be observed.

"Improving cross-border information exchange is not an end in itself. The purpose is to tackle crime more effectively and reduce harm to victims and to the EU economy. The measures in place generally work well, and there is no need for new law enforcement databases. But there is scope for improvement. In particular, legislation that has been agreed must be fully implemented and used more consistently, by all Member States", said Commissioner for Home Affairs Cecilia Malmström.

The Commission examined a number of EU-wide information exchange instruments mixing however EU systems such as Europol and the Schengen Information System (SIS) with projects at the level of member states which are not yet adopted at the European level, such as the Prüm Decision or the European Border Surveillance System EUROSUR. The question now is what happens with the initiatives and databases that are currently under discussion, such as Eurodac - the database of fingerprints of asylum seekers under debate now in the Parliament and Council, EU-PNR - the proposed system of EU- data gathering, profiling, and retention of all air passengers entering or leaving Europe, or Smart Borders - a legislative package which would collect data about all travellers entering and leaving the EU (including fingerprints) allowing pre-checked and profiled traveller to enter EU more easily.

EC Press Release - Assessment of law enforcement tools: no new databases needed at EU level (07.12.2012)
http://europa.eu/rapid/press-release_IP-12-1330_en.htm

Communication - Strengthening law enforcement cooperation in the EU: the European Information Exchange Model (EIXM) (7.12.2012)
http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/poli...

EU Commission: No new law enforcement databases needed (9.12.2012)
http://bendrath.blogspot.co.uk/2012/12/eu-commission-no-new-law-enforc...

Communication: Overview of information management in the area of freedom, security and justice (20.07.2010)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0385:FI...

The European Parliament supports net neutrality

This article is also available in:
Deutsch: Europäisches Parlament setzt sich Netzneutralität ein

On 11 December 2012, The European Parliament (EP) issued, in a large majority, two non-legislative resolutions asking that net neutrality should be enshrined in the European Union law.

In one of the resolutions, “Completing the Digital Single Market”, the EP "calls on the Commission to propose legislation to ensure net neutrality" and urges Commissioner Kroes to end her ill-fated "wait and see" approach.

The second resolution, “Digital Freedom Strategy in EU Foreign Policy”, stresses that the EP "strongly supports the principle of net neutrality, namely that Internet Service Providers do not block, discriminate against, impair or degrade, including through price, the ability of any person to use a service to access, use, send, post, receive or offer any content, application or service of their choice, irrespective of source or target" and "calls on the Commission and Council to promote and preserve high standards of digital freedom in the EU, in particular by codifying the principle of net neutrality".

“After a constructive dialogue with civil society, in particular in the course of the ACTA debate, the EU Parliament is adopting a more proactive approach to Internet freedoms, especially on the issue of Net neutrality. Today's vote is a blow to Commissioner Kroes, who has been playing into the hands of dominant telecom operators by refusing to enforce this fundamental principle. A EU-wide law on the matter is indeed urgent, as evidence is now clear that telecom operators across the EU apply widespread restrictions to users' Internet access. We must keep putting pressure on the Commission and Member States so that they finally take action to protect Net neutrality, and ensure that the Internet remains a platform for freedom, democracy and innovation”, said Jérémie Zimmermann, spokesperson for La Quadrature du Net.

The Parliament urges for a stricter regime to control the export of censorship and surveillance technologies to oppressive regimes and criticises the increasing capture of global Internet governance by governments.

After its resolution on net neutrality from November 2011, this is the second time that the European Parliament has asked the Commission to abandon its laissez-faire approach on this crucial policy area.

Research from the Body of European Regulators for Electronic Communications (BEREC) proves that operators interfere with traffic on their networks in socially harmful ways. They block, throttle and discriminate against applications, content and services that are competing with their own. The existing laws in many European Member States are inadequate to prevent such abuses of the open Internet.

"Users and innovators, not access providers, should continue to decide how they want to use the Internet if it is to continue to realise its potential as a barrier-free single market and as a unique platform for social and cultural activity and democratic discourse," said Joe McNamee, Executive Director of EDRi.

The European Parliament demands a net neutrality law (11.12.2012)
http://edri.org/EP-netneutralitylaw

EU Parliament Calls For Action Against Net Access Restrictions (11.12.2012)
http://www.laquadrature.net/en/eu-parliament-calls-for-action-against-...

Motion for an EP Resolution on a Digital Freedom Strategy in EU Foreign Policy (15.12.2012)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPOR...

Motion for an EP Resolution on completing the Digital Single Market (26.10.2012)
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&referenc...

Companies abuse a loophole in data protection law

This article is also available in:
Deutsch: Firmen nutzen Lücke im Datenschutzgesetz

Personal data of internet users are often processed on a legal basis too weak to provide a real protection of the users' right to privacy. On 11 December 2012, EDRi member Bits of Freedom published a report about the flaws of the so-called "legitimate interest" ground as a basis for data processing.

This ground is the last of six grounds included in article 7 of the Data Protection Directive (95/46/EC). Data controllers are free to choose on which of these six grounds they base the processing of personal data, provided the data does not fall under a specific consent-regime (such as sensitive data or location data). Processing based on legitimate interest allows data controllers to process personal data without the consent of their users, provided that the interests of the data controller or third parties are weighed against the interests and rights of these users.

In practice, this legal ground creates a loophole in the data protection regime. Bits of Freedoms report demonstrates that the use of the "legitimate interest" ground by companies such as Facebook and Google leads to the over-collection of personal data as such companies often let their own interests prevail over the interests of their users. The balance test is not subject to any authorization and the users are not in a position to effectively challenge the test. This means that in practice, a company is free to collect a lot of personal information without the users’ consent.

As addressed in the latest EDRi-gram, the consequences of wrongful data processing can be very severe. The BoF report presents recommendations to fix this loophole in data protection law. European data protection rules are currently under debate in Brussels. These rules should generally provide better protection of the rights and interests of users. Processing based on the legitimate interest ground should be limited and the right to object against processing based on legitimate interest must be improved.

A loophole in data processing (11.12.2012)
https://www.bof.nl/live/wp-content/uploads/20121211_onderzoek_legitima...

ENDitorial: What could possibly go wrong? (5.12.2012)
http://edri.org/edrigram/number10.23/what-could-possibly-go-wrong-data...

(Contribution by Janneke Slöetjes - EDRi member Bits of Freedom - Netherlands)

UK government said no to default filtering for online pornography

This article is also available in:
Deutsch: Britische Regierung sagt Nein zur automatischen Filterung pornografisc...

The UK government announced on 14 December 2012 that it rejected a proposal to force Internet providers to block online pornography.

The government’s response to the strong campaigns led by Claire Perry MP and the Daily Mail newspaper is based on a consultation into Internet child safety and parental controls run by the Home Office and the Department of Education between 28 June and 6 September 2012.

The report of the consultation says that parents have not shown too much enthusiasm for default filtering: “There was no great appetite among parents for the introduction of default filtering of the internet by their ISP: only 35 per cent of the parents who responded favoured that approach.” What the parents rather wanted was “information about internet safety risks and what to do about them.” An automatic ban or "opt-in" approach could give parents a "false sense of security" as no filter can block "all potentially harmful content" says the report.

As it was many times argued by civil rights groups and Internet experts, filtering is not a reliable solution as it can be easily circumvented and, furthermore, it can lead to blocking legitimate sites and legal content as it was also shown by a study issued in 2012 by the Open Rights Group in conjunction with the London School of Economics.

However, the government says that Internet providers should actively encourage parents to switch on parental controls. In 2011, BT, TalkTalk, Virgin Media and Sky Broadband agreed on a code of practice, and will offer parental internet controls called ActiveChoice. Already, many ISPs offer options to parents who want to block adult content.

Nick Pickles, director of Big Brother Watch, believes the government decision “is a positive step that strikes the right balance between child safety and parental responsibility without infringing on civil liberties and freedom of speech. The policy recognises it is parents, not government, who are responsible for controlling what their children see online and rightly avoids any kind of state-mandated blocking of legal content."

“Porn filters” fail parents and children (17.12.2012)
http://www.indexoncensorship.org/2012/12/internet-blocking-uk-porn/

Internet porn: Automatic block rejected (15.12.2012)
http://www.bbc.co.uk/news/uk-politics-20738746

Independent Parliamentary Inquiry into Online Child Protection – Findings and Recommendations (04.2012)
http://www.claireperry.org.uk/downloads/independent-parliamentary-inqu...

Ministers reject calls to protect children from online porn by filtering sexual content (15.12.2012)
http://www.dailymail.co.uk/news/article-2248628/Ministers-reject-calls...

EDRi-gram: UK government wants an automatic filtering of adult sites (4.07.2012)
http://www.edri.org/edrigram/number10.13/uk-law-block-porn

Digitale Gesellschaft promotes net neutrality with Vodafail actions

This article is also available in:
Deutsch: Vodafail: Digitale Gesellschaft setzt sich für Netzneutralität ein

There are only a few telecom operators in Germany which offer mobile Internet. The two largest, Deutsche Telekom and Vodafone, harm net neutrality in numerous of their tariffs – deeply hidden in their contract terms. The federal government does not care to do anything against it, and many consumers don’t even notice anything about it.

To create an awareness of the insidious violation of net neutrality and to make politicians aware of obvious consumer fraud by large telcos, EDRi member Digitale Gesellschaft e. V. has started online actions against Vodafone. These take place in the context of a campaign called “EchtesNetz” (RealNet) and are aiming for a legislative codification of network neutrality in Germany and the EU.

On behalf of the entire industry we use Vodafone as an example how tariffs are sold as Internet, though parts of the Internet are prohibited in the general terms and conditions of many providers.

On the campaign’s page “halbesnetz.de” we advertise (existing!) Internet tariffs with elaborate names like "Vodafone Superflat Internet", which ironically prohibit VoIP, instant messaging and peer-to-peer. According to Vodafone’s own definition, peer-to-peer connections are "computer-to-computer connections". So, it seems like the entire Internet is banned using this “super flat” tariff – although consumers have to pay full price and are only informed about the restrictions in small print.

The Vodafail remixer calls for a creative examination of the topic. Using Vodafone billboards, consumers can write their own opinion about Vodafone’s consumer deception and create fitting banners to explain their views in a simple statement. So far, almost 1000 pieces have been generated (see Vodafail.tumblr.com).

What do we want to achieve?

Politics needs to secure net neutrality - Only a full-scale internet access should be allowed to be sold as Internet. Everything else is a sham. Users must have the freedom to use every hardware and software and any application they want. This is what consumers perceive as the Internet. Politicians like to point to the market and promise transparency. Actual transparency is obviously not practised and apparently rejected by some telecommunications service providers. We need a simple and straightforward solution for this problem. Since politicians like to propose that consumers should complain when they have a problem with their current “offer”, we offer a solution with our actions.

At the same time Digitale Gesellschaft e. V. has published a comprehensive manual about net neutrality in a beta version. By now, we are still in need of donations to print the manual in a larger edition and to distribute it to decision-makers and multipliers.

Vodafail
http://halbesnetz.de

Vodafail Remixer
http://vodafail.digitalegesellschaft.de
http://vodafail.tumblr.com

Launch of a new Vodafone campaign: That’s the freedom we take! (29.11.2012)
https://digitalegesellschaft.de/2012/11/launch-of-a-new-vodafone-campa...

Digitale Gesellschaft Guide on Net Neutrality (12.2012)
https://digitalegesellschaft.de/2012/12/jetzt-neu-unser-handbuch-netzn...

(Contribution by Markus Beckedahl - EDRi member Digitale Gesellschaft - Germany)

Export Controls for Digital Weapons

This article is also available in:
Deutsch: Exportbeschränkungen für digitale Waffen

While the European Governments often praise the positive role the Internet can have on the society in helping empower people and promoting freedom of information and expression, European mass surveillance and censorship software is being exported under their watch. Some governments not only fail to enact controls, but even further the export of such technology using export credit guarantees. Reporters Without Borders Germany fights for a regime to stop the export of European surveillance and censorship equipment to countries which oppress freedom of information and the press.

Surveillance equipment is used, inter alia, to spy on journalists, bloggers, citizen journalists, democracy activists and their sources, friends and even loose contacts. Many suppliers of this surveillance infrastructure are located in the European Union, names like Nokia Siemens Networks, Gamma, Trovicor, Hacking Team and Bull / Amesys come to mind. Those firms supplied equipment to Libya, Egypt, Syria, Bahrain, Morocco and many more countries that have systematically violated human rights over the course of the last years. In all of these countries at the time of the instalment of surveillance infrastructure there was no press freedom and people were being tortured or imprisoned for criticizing the government.

Mamfakinch.com, a Moroccan independent media site, launched after the Arab Spring discovered that they were being spied on by "government grade spyware" only eleven days after they had been awarded the "Breaking Borders Award" by Global Voices and Google. Different Media outlets reported that software by the Italian firm "Hacking Team" has been used to snoop on the journalists’ files, emails and even Skype conversations.

Reporters Without Borders believes that digital source protection is one of the most relevant issues for modern journalism. All journalists should be aware how important it is to store sensitive information in a secure way, to make sure they do not risk their sources’ lives or well-being. The possibility to encrypt emails, hard drives and use anonymous forms of communication is one of the key elements to a free press. This requires additional training and awareness raising as well as strong privacy and press freedom laws. That is why Reporters Without Borders Germany rejects the EU Data Retention Regime and other means of Internet surveillance, be it in the EU or outside.

Today the EU has placed restrictions on the export of such surveillance equipment to Libya and Iran, but still lacks general rules and procedures. In August, Reporters Without Borders Germany urged the German government to take action and enact a regime that bans the export and trade of Digital Weapons made in Germany. Later, we also appealed to the EU-Commission to amend the EU Dual Use regulation accordingly. The new "Strategy for Digital Freedoms in EU Foreign Policy" adopted by the European Parliament in early December 2012 calls on the EU-Commission to propose legislation to control the export of Digital Arms and enact Net Neutrality. We welcome this resolution and hope for subsequent legislation.

Ben Wagner - Exporting Censorship and Surveillance Technology (01.2012)
http://www.hivos.nl/content/download/72343/618288/file/Exporting%20Cen...

How Government-Grade Spy Tech Used A Fake Scandal To Dupe Journalists (20.08.2012)
http://www.slate.com/blogs/future_tense/2012/08/20/moroccan_website_ma...

Position paper of the Reporters Without Borders on export of the German surveillance technology (28.08.2012)
http://www.reporter-ohne-grenzen.de/fileadmin/rte/pics/sonstiges/Posit...

Position paper of Reporters without Borders on the export of European surveillance technology (6.11.2012)
http://www.reporter-ohne-grenzen.de/fileadmin/rte/docs/2012/Positionsp...

Report on a Digital Freedom Strategy in EU Foreign Policy (15.11.2012)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RE...

EU: Enact Controls on Digital Weapons Trade (11.12.2012)
http://en.rsf.org/union-europeenne-eu-enact-controls-on-digital-11-12-... German version:
http://www.reporter-ohne-grenzen.de/presse/pressemitteilungen/meldung-...

(Contribution by Hauke Gierow - Reporters Without Borders Germany)

ENDitorial: Global alliance against CP – no disconnect with reality?

This article is also available in:
Deutsch: ENDitorial: Globale Allianz gegen Kinderpornographie – Wunsch und Wi...

Two and a half years ago, European Home Affairs Commissioner Cecilia Malmström proposed compulsory EU-wide Internet blocking because some countries, with the USA as the chief offender, left child abuse material online rather than removing it. Last week, the same Commissioner launched the “Global Alliance against Child Pornography (CP)” after this had been proposed by the United States.

Since the initial blocking proposal, there have been many worrying developments with regard to failures in online child protection. Within Europe, the European Commission has been repeatedly forced to admit that it has no proper statistics about what is happening in the EU, despite having spent millions on “safer Internet” projects for years. In response to one parliamentary question, the Commission had to admit (despite having financed the EU's hotline and notice and takedown system) to having no data regarding “investigations and/or prosecutions for either publishing child abuse material online or accessing such material in the European Union” and no usable data at all from the Internet child abuse hotlines that it has financed for most of the past decade.

At the same time, the European Commission has seen neighbouring countries developing repressive strategies which use “child protection” as a justification. Turkey used “voluntary” measures to circumvent the state's own legal obligations. ISPs are forced to implement blocking systems, with the blocking lists being prepared by a non-independent committee. We can expect that Turkey's reaction to the Chamber Judgement of 18 December 2012 from the European Court of Human Rights to be a stronger reliance on EU-style “voluntary measures” rather than an attempt to bring their practices into line with its legal obligations. Similarly, Russia has introduced a wide-ranging blocking and censorship system which is leading to a wide range of unquestionably legal and safe material being blocked.

Absurdly and unconscionably, we have also seen Interpol, an organisation which is supposed to represent almost every police force in the world, devote resources to maintaining a “worst of the worst” child abuse Internet blocking list. Instead of resources being put into their own members removing and investigating the worst of the worst child abuse websites, Interpol chooses to put its time and money into supporting a policy which is only superficial and has never been shown to have any particular benefit.

After the banning of child abuse material by the UN Child Rights Convention... and its re-banning by the Optional Convention to the Child Rights Convention and then re-banning it again in the Council of Europe Cybercrime Convention... after the promises made by the Stockholm Declaration and the Agenda for Action, the promises made by the Council of Europe Lanzarote Convention, members of the Global Alliance take a solemn and non-legally binding and non-enforceable promise to take real action to protect children online. Maybe they will. We can certainly hope so. However, what else does the Alliance propose? Well, nothing actually binding or enforceable, in keeping with the spirit of all international agreements on child protection.

Some of the rather coded proposals are worrying: a) “Encourage participation by the private sector in identifying and removing known child pornography material located in the relevant State, including increasing as much as possible the volume of system data examined for child pornography images;”

The creation and making available of child abuse material are crimes – it is not the task of industry to investigate and prosecute crimes. It is not the task of the private sector to identify “child pornography” - this is a task for law enforcement authorities, in cooperation with the courts. It is not the task of private industry to examine “system data” in relation to child abuse images. This is a task for law enforcement authorities. Neither the EU, nor the US has any published statistical data regarding law enforcement follow-up on, for example, websites that have been removed as voluntary action.

b) “Evaluate whether, according to domestic law, there are any impediments to the participation of the private sector to identify and eliminate known child pornography images, and adopt the necessary legislative amendments”

The European Union and United States are urging countries around the world, such as Russia and Turkey, to change the law in order to ensure that it is legally possible for private companies to monitor uploads to the Internet in order to check that citizens are acting illegally. Formally recognising such an intrusive and arbitrary surveillance of citizens by private companies comes with huge costs for human rights and the rule of law across the world. The cost of such an approach could be catastrophic in terms of human rights. The cost is huge, so what is the benefit? The wanton negligence of this approach is shown by the fact that neither the EU, nor US knows, because existing measures have never been assessed for effectiveness.

Recently, however, there was a pilot project in the Netherlands. Thanks to a freedom of information request by EDRi member Bits of Freedom, we know that the Dutch police came to the conclusion that such filtering is of “negligible” benefit. So, once again, after all of the promises of the past, we have another policy that is much worse than useless – child protection remains neglected, with immense damage to civil rights globally.

c) “Increase the speed of notice and takedown procedures as much as possible without jeopardizing criminal investigations.” As previously mentioned, the European Commission has said that it has no statistical information at its disposal regarding the current speed of takedown of child abuse material. So, what does “increase the speed” mean when you have absolutely no idea of what the speed currently is?

And it gets worse - at the launch of the event, the United States Attorney General identified the widespread use of Microsoft's PhotoDNA as a target in the context of the Global Alliance. He supported the use – outside the rule of law – of PhotoDNA as a mass filtering technology to check every upload from every Internet user, in case it contains previously-identified child abuse material.

Microsoft has not been able to point to any independent testing of PhotoDNA's accuracy in any of our conversations with them. Microsoft has not said whether PhotoDNA has been subject to any robustness testing. Microsoft has not been able to say if law enforcement authorities even bother to access the log files of apparent uploads. But at least it sounds good. And EU and US support for arbitrary mass filtering of communications – outside the rule of law - will sound wonderful to our International “partners” who are increasingly finding that exploiting child exploitation is an effective way of minimising international condemnation of restrictions on privacy and freedom of communication.

Attorney General Eric Holder Speaks at the Global Alliance Against Child Sexual Abuse Online Ministerial (5.12.2012)
http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-121205.html

EDRi-gram: Russian bill creates blacklist of websites (18.06.2012)
http://www.edri.org/edrigram/number10.14/russian-bill-blacklist-websit...

Russia's Controversial Internet Law Causing Collateral Damage (19.12.2012)
http://www.rferl.org/content/russia-internet-law-collateral-damage/247...

Interpol - Access Blocking
http://www.interpol.int/Crime-areas/Crimes-against-children/Access-blo...

ECHR chamber judgement on Internet blocking in Turkey (18.12.2012)
http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4202...

Guiding principles on the global alliance against child pornography (5.12.2012)
http://ec.europa.eu/dgs/home-affairs/what-is-new/news/news/2012/docs/2...

Dutch pilot project (only in Dutch, 13.12.2012)
https://www.bof.nl/2012/12/13/politie-uploadfilter-werkt-niet-tegen-ki...

(Contribution by Joe McNamee - EDRi)

Recommended Action

This article is also available in:
Deutsch: Mitmachen!

Joining Forces for Online Privacy!
Europe vs. Facebook will soon reach the point where the Irish data protection authority will make a final and legally binding decision, effecting every user of Facebook. It is likely that the outcome will not really be in favour of the users but in favour of Facebook.

Your donation can make a difference beyond the individual case of Facebook. The case has good chances to become a landmark decision, influencing the future of online privacy in Europe and the world.
https://www.crowd4privacy.org/

Agenda

This article is also available in:
Deutsch: Agenda

27-30 December 2012, Hamburg, Germany
29C3 - Chaos Communication Congress
http://events.ccc.de/category/29c3/

20-23 January 2013, Brussels, Belgium
The Power of Information - How Science and Technology can Make a Difference
http://www.ThePowerofInformation.eu

23-25 January 2013, Brussels, Belgium
CPDP 2013 Conference - Reloading data protection
http://www.cpdpconferences.org

2-3 February 2013, Brussels, Belgium
FOSDEM
https://fosdem.org/2013/

14-15 February 2013, Vienna, Austria
Internet 2013 - Shaping policies to advance media freedom
http://www.osce.org/event/internet2013

22 February 2013, Warsaw, Poland
ePSIplatform Conference: "Gotcha! Getting everyone on board"
http://epsiplatform.eu/content/save-date-22-february-2013-epsiplatform...

21-22 March 2013, Malta
Online Privacy: Consenting to your Future
http://www.onlineprivacyconference.eu/

6-8 May 2013, Berlin, Germany
re:publica 2013
http://www.re-publica.de

6-7 June 2012, Lisbon, Portugal
EuroDIG 2013
Proposals by 31 December 2012
http://www.eurodig.org/important/call-for-issues-and-proposals

25-26 June 2013, Barcelona, Spain
9th International Conference on Internet Law & Politics: Big Data: Challenges and Opportunities.
http://edcp.uoc.edu/symposia/idp2013/?lang=en

31 July – 4 August 2013, Geestmerambacht, Netherlands
Observe. Hack. Make. - OHM2013
https://ohm2013.org/

24-27 September 2013, Warsaw, Poland
Public Voice Conference 2013 35th International Data Protection and Privacy Commissioners conference
http://www.giodo.gov.pl/