The European Commission has finally launched its proposal for a directive on data retention. During a press conference today (21 September 2005), commissioner Frattini underlined how important it was that data retention would be decided in the first pillar, by Commission and Parliament and not by the ministers of Justice in the third pillar. Frattini was confident the proposal would be adopted by the European Parliament before the end of the year. But the happy information feeling didn't last until the end of the conference. When asked by a journalist why the Commission did not include failed call attempts, Frattini said that was indeed an omission, and would be one of the first updates to the list. Failed attempts are important, Frattini said, because law enforcement needs very complete information from the base stations used for mobile telephony. By storing failed call attempts law enforcement gets a complete picture of all the mobile phones that were near a base station at a certain point in time, including mobile phones that were not engaged in a conversation.
The Commission proposal is very similar to the last versions of the proposal from the Ministers of Justice (JHA Council) for a framework decision. The Commission proposal only differs in a shorter retention period: one year retention for data about telephony behaviour, including location data of mobile phones. Internet data should be stored for 6 months. Like the JHA Council, the Commission fails to provide any evidence for the need and benefits of data retention. The Commission repeats meaningless sentences like "It has now become urgent to adopt harmonised provisions at the EU level on this subject."
The purpose of the retention is "the prevention, investigation, detection and prosecution of serious criminal offences, such as terrorism and organised crime." The JHA Council didn't want to limit to purpose to 'serious' crime, but on the other hand, never considered 'prevention' a valid purpose. In that respect the Commission seems to invite law enforcement to start data-mining on a large scale on the travel and communication patterns of completely innocent citizens.
Internet data are defined as "data related to electronic communications taking place wholly or mainly the Internet protocol". In the annex of data to be stored, the required internet data are limited to internet access, e-mail and internet telephony.
But this list of data is completely meaningless, given the procedure the Commission proposes to update this list. Opening a backdoor matching the size of the law enforcement ambitions of the UK presidency, the Commission proposes a flexible procedure to revise the list in 'comitology'. This typical EU procedure means representatives of the member states form a special committee. The European Commission can send proposals to such a committee. In the case of data retention, the Commission has chosen the form of a 'regulatory committee'. If a qualified majority of members agrees, the Commission can send a proposal for drastic expansion of the kinds of data to the Council. Within 3 months they have to decide by qualified majority to reject or adopt the proposal. If they don't agree within 3 months, the Commission may continue and adopt the proposed measure.
In this procedure, the national parliaments are completely excluded and the European Parliament only has a so-called right of scrutiny. If the EP feels a proposed measure "would exceed the implementing powers provided for in the basic instrument", the Commission must re-examine its proposal, but can completely ignore the protest from the EP.
Looking at the Council versions of June and July, a majority of member states still rejects the proposal from Austria to specifically exclude the subject line of e-mails from the list. This is just one example of the pressure that will be exerted on the Commission to weaken the fundamental protection of communication secrecy. On the Internet, the difference between content and meta-data is blurred, a danger many experts have warned about for a long time. Data such as subject lines and surfing behaviour reveal detailed and intimate reading patterns. According to the last working party version of the Council proposal, from 16 September 2005, Belgium, Denmark, Spain, Lithuania and Sweden insist on retention of logs of web browsing, Internet chat and peer-to-peer communications. The Council acknowledges once more all the legal criticism of dealing with data retention in the third pillar, but will return to the framework decision in the last formal JHA Council of 2005, in December, if Commission and Parliament won't have obliged by then. This is phrased as: "During the proceedings, the Council will need to decide if it accepts the approach of a Directive or if it will take measures on data retention on the basis of the draft Framework Decision."
Some slight changes in the final Commission document compared to the previously leaked version are:
-No longer will the Commission consult an advisory forum of data protection authorities and industry for every update of the Annex. In stead, the Member States can decide by themselves in comitology;
-In stead of the providers, the Member States bear the responsibility to provide yearly statistics on the use of retained data to the Commission;
-The Commission -for the first time- says something in public about the results of the consultation procedure in September 2004. But the summary is grotesquely inaccurate when it comes to digital rights organisations. The Commission writes: "In general terms, they questioned whether periods of retention longer than six months can be considered to be proportional. They also expressed concerns about the finality and aims of the retention, which should be clearly specified." In reality, over a 100 digital rights organisations signed the petition from EDRI and Privacy International that objected to _any_ form of systematic retention of data on innocent citizens.
Commission press release (21.09.2005)
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&am...
Commission memo (21.09.2005)
http://europa.eu.int/rapid/pressReleasesAction.do?reference=MEMO/05/32...
Leaked Commission proposal for a directive (15.09.2005)
http://www.statewatch.org/news/2005/sep/com-data-retention-prop.pdf
Working party version of the Council framework decision (16.09.2005)
http://www.quintessenz.at/doqs/000100003338/2005_09_16,EU_council_cope...
July version of the Council proposal (29.07.2005)
http://www.statewatch.org/news/2005/sep/eu-data-ret-draft-jul05.pdf
EDRI-gram analysis of first version Commission proposal (27.07.2005)
http://www.edri.org/edrigram/number3.15/commission
Press release EP rapporteur Alexander Alvaro (04.05.2005)
http://www.privacyinternational.org/article.shtml?cmd³³0³=x-347-204208
EDRI and PI response to Commission consultation (15.09.2004)
http://www.privacyinternational.org/article.shtml?cmd³³0³=x-347-103020
FAQ about comitology procedure
http://europa.eu.int/comm/secretariat_general/regcomito/aide.cfm?page=...
In the first week of October the European Commission will publish a proposal for a Council Framework Decision on the protection of personal data exchanged by courts and police under the Third Pillar in EU Member States. Statewatch published a draft version earlier this week.
The framework decision will allow the EU to move forward with plans for full cross-border access to police databases under the "principle of availability". The Council has become increasingly eager for a proposal to be agreed, calling in July for the Commission to present proposals by October at the latest.
The proposal would create a similar regime to the existing 1995 Data Protection Directive, which applies to First Pillar (single market) legislation. It would ensure data is processed for specific purposes for a legitimate lawful purpose, and that European citizens have the right to access and where necessary correct personal data held about them by legal authorities. Supervisory authorities such as the existing Data Protection Commissioners would be nominated to oversee the national schemes, and would jointly act as a Working Party to ensure the directive was followed uniformly across the EU.
While the proposal is a welcome step forward in the protection of personal data, it contains some areas of concern. Most generally, it contains wide optional exemptions for Member States, rather than strengthening protection uniformly across the EU. Article 6, for example, would allow the exchange of data concerning "racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life" when provided for by law and "absolutely necessary" for the "prevention, investigation, detection or prosecution of criminal offences". Article 4.3 also allows basic protections to be set aside by Member States if "exceptionally" "provided for by law".
The proposal also affects the personal data of a great many EU citizens:
"- a person who is suspected of having committed or having taken part in a criminal offence or who has been convicted of such an offence, – a person who there are serious grounds for believing will commit a criminal offence, – a person who might be called on to testify in investigations in connection with criminal offences or subsequent criminal proceedings, – a person who has been the victim of a criminal offence or with regard to whom certain facts give reasons for believing that they could be the victims of a criminal offence, – a person who can provide information on criminal offences, and – a contact or associate to one of the persons mentioned above," (art.4.4)
Data may also be retained for "historical, statistical or scientific purposes" (art.4.1b), and stored "to varying degrees of accuracy and reliability" (art.4.1.d)
EDRI will be undertaking further analysis of the proposal and will call on the Commission and Council to improve the protection of the extremely sensitive personal data that it would allow police forces to exchange across Europe and beyond.
Commission proposal for a framework decision on the protection of personal
data (04.08.2005)
http://www.statewatch.org/news/2005/sep/com-data-protection-prop.pdf
(Contribution by Ian Brown, board member EDRI)
The Guardian reports about a new daughter-company of the UK Supermarket chain Tesco, that is selling very detailed information about every household and every person in the UK to the highest bidder. The database called Crucible contains "A map of personality, travel habits, shopping preferences and even how charitable and eco-friendly you are." And even if you don't shop at Tesco's, by combining data about for example magazine subscriptions from other sources such as Experian, Claritas and Equifax, the company has, in its own words collected a "massive pool" of consumer data. The company also uses government information, such as the electoral roll, which contains names, ages and housing information.
The two reporters from the Guardian started with an information request, on data collected by the company through the Clubcard (the Tesco loyalty system). Only after a 4 months battle and a formal appeal to the Information Commissioner a reporter got her personal data. Though she provided as little information about herself as possible when applying for the Club Card, after 1 year Tesco had 2 pages of information on her and her specific shopping behaviour.
Tesco said its Clubcard was completely compliant with the data protection act and Tesco itself did not sell data about individual shoppers to third parties, only on an aggregated level.
Tesco stocks up on inside knowledge of shoppers' lives (20.09.2005)
http://www.guardian.co.uk/business/story/0,3604,1573821,00.html
The Dutch ministry of Health, Welfare and Sport plans to introduce a new electronic file on every new-born, starting in January 2007. The file will contain information about the child, the family situation and its surroundings, later adding educational data, information from social workers and possible police records. The file will be principally maintained by youth doctors and medics working for the child public health care service. The file will be connected to the citizen service number, a new electronic ID for every Dutch resident and citizen replacing the old social-fiscal number. Secretary of State Clémence Ross explained: "Medics can easily trace the development and situation of a child and thus get a clear picture of its need for care. They can also see which other institutions work or have worked with a child. The electronic childfile thus helps the smooth hand-over between different caretakers."
It is not clear if the electronic file also requires biometric identifiers. In that case, another problem with biometrics will become apparent. Fingerprinting children, especially babies, can be very challenging. In an analysis of the first pilot with the issuing of biometric passports in the Netherlands, the Dutch institute for applied scientific research TNO concludes: "It is especially difficult to get babies to unclench their fists in order to take good prints." In addition, facial features of young children change rapidly, making subsequent automatic facial-verification unreliable.
The announcement of the ministry comes as an extra surprise given the recent spectacular hack of the databases of two hospitals in the Netherlands. The hackers - in collaboration with the direction of the hospitals - obtained access to records about 1.2 million people. The hack made it painfully clear the government plans to introduce electronic medical and medication files lack basic attention for security. Questions were immediately raised in Parliament, where the Minister admitted he was shocked by the hack. He promised he would raise the standards for security, but didn't promise to dedicate any extra money.
Press release Ministry of Health, Welfare and Sport (in Dutch, 16.09.2005)
http://www.minvws.nl/persberichten/djb/2005/kabinet-in-operatie-jong.a...
TNO report about the first trial with biometric passports (in Dutch,
12.09.2005)
http://www.minbzk.nl/persoonsgegevens_en/reisdocumenten/publicaties/ev...
Dutch treat: personal database (15.09.2005)
http://www.wired.com/news/privacy/0,1848,68866,00.html
The 27th international conference of data protection commissioners took place in Montreux/Switzerland from 13 to 15 September 2005. The meeting with the title "The protection of personal data and privacy in a globalised world: A universal right respecting diversities" saw several hundred data protection authorities (DPA) officials, industry, cyberrights groups and other stake-holders for three intense days of discussion. One big issue was the tenth anniversary of the EU's data protection directive from 1995. The assessment was mixed, though. There are still many differences in national laws and enforcement is weak. While the EU directive had a big impact on the globalisation of data protection legislation, this approach is hard to enforce on the border-less Internet. There is also a strategic rival emerging with the APEC privacy guidelines (Asia-Pacific Economic Cooperation) that incorporate a lower privacy standard than the EU directive or the OECD guidelines.
Part of the discussion therefore focused on other means of privacy protection, ranging from industry self-regulation to incorporating privacy protection into the design of the technical infrastructures. Most presenters agreed that the 'user empowerment' approach failed, and that there needs to be some legal foundation for data protection. The commissioners in their closed session on 16 September adopted the Montreux Declaration. It calls for the spread of universal privacy principles around the world, including through the U.N.; cooperation with NGOs around the world; and for intergovernmental organisations (like ICAO, creator of the biometric/RFID passport standard) to comply with such principles and to appoint privacy officers.
The conference also passed resolutions on biometric identity documents and on the use of personal data for political communications. EDRI and other cyberrights groups were present at the conference with some speakers, a number of participants and a successful pre-event on 12 September (see next article). Many of the DPA representatives also referred to the importance of EDRI and similar groups for their work. Next year's conference will take place in Buenos Aires, Argentina.
Montreux conference website
http://www.privacyconference2005.org
Montreux declaration (16.09.2005)
http://www.edsb.ch/e/aktuell/konferenz/declaration-e.pdf
Montreux Resolution on the use of biometrics in passports, identity cards
and travel documents (16.09.2005)
http://www.edsb.ch/e/aktuell/konferenz/biometrie-resolution-e.pdf
Montreux Resolution on the use of personal data for political communication
http://www.edsb.ch/e/aktuell/konferenz/political-communication-resolut...
(Contribution by Ralf Bendrath, EDRI member Netzwerk Neue Medien)
EDRI and a coalition of civil liberty groups has organised a pre-event at the international conference of data protection commissioners on 12 September in Montreux. The aim was to strengthen cooperation between NGOs and official data protection authorities (DPAs). The meeting was well-attended by NGOs, privacy officials and industry representatives and led to promising discussions on how to improve collaboration in the future.
The panel on data retention noticed the interesting development of an emerging "rainbow coalition" between civil liberties groups, DPAs, Internet and telecommunication providers, and the European Parliament. Hielke Hijmans from the Office of the European Data Protection Supervisor (EDPS) presented the concerns of the EDPS. He made it clear that "terrorism is not out of this world when you retain data", and while protecting our societies, "we must not forget our basic values like privacy, as enshrined in article 8 of the European Convention on Human Rights". Because data retention is already applied in some EU member states, the EDPS is currently working under the assumption that an EU directive can not be stopped completely. Therefore, they focus on safeguards and limiting types of data and retention periods. Cédric Laurant from co-organiser EPIC pointed out that data preservation regimes (only retaining data in specific investigations) "have not prevented law-enforcement agencies from doing their job". Even the heavily criticised Council of Europe's Cybercrime Convention only contains data preservation. Following the EU discussions on data retention, though, a number of countries including Nigeria, Estonia, and Argentina have adopted data retention laws. Peter Swire from Ohio State University, the former Clinton Administration's Chief Counselor for Privacy, introduced a new way of framing the debate on data retention. It is not just a cost argument that helps to align with industry, but also a security risk. If all Internet traffic data are retained, Internet usage of police officers and security agencies will also be retained. Therefore, organised crime no longer has to bribe police officers in order to get inside information, but just needs to bribe ISP employees. This led to an interesting discussion on the security risks related to data retention. In the end, the most appealing argument was that not even the Bush administration agencies want data retention in their "war on terrorism".
The panel on biometrics started with the assumption by Gus Hosein from co-organiser Privacy International that these technologies are already here and can not be stopped anymore. Therefore, civil liberty groups have to come up with more realistic approaches. The Swiss Data Protection Commissioner Hanspeter Thür then presented his approach to biometrics. Different from the EU rush, Switzerland started a pilot project before deciding about the introduction of biometric passports. The DPA's biggest concern at the moment is the plan for a central national database for biometric passports. A plan for such a database for immigration control has already been stopped by the DPA. Barry Steinhardt from co-organiser ACLU pointed out the governments' "policy laundering" strategy, where they introduced biometric passports through the mostly unknown and in-transparent organisation ICAO and then at the national level referred to "international obligations". Stephanie Perrin from the Office of the Canadian Federal Data Protection Commissioner gave some examples of how to and how not to fight biometrics. The "it does not work" argument is tricky, because many of the technologies will work in a few years. More successful are early privacy impact assessments that are mandatory in Canada and a focus on standards organisations. The biggest problem and concern in biometrics is the creation of central databases, the participants agreed after also discussing security aspects in this field.
EDRI likes to thank EDRI-member Swiss Internet User Group (SIUG) and the Swiss coalition Communica-ch for taking care of the local arrangements and funding for this event.
Agenda of EDRI pre-event in Montreux (12.09.2005)
http://www.edri.org/panels
(Contribution by Ralf Bendrath, EDRI member Netzwerk Neue Medien and chair of the data retention panel)
A Spanish gaming programmer may face up to one year prison charges for developing a video-game which makes fun of religious practices. 'Matanza Cofrade' is a video-game, a first person shooter Doom-like game in which the player shoots participants to the famous Holy Week procession. The participants are zombies and in the background, images of several religious brotherhoods from Sevilla are shown.
This game was supposed to be offered as a present with a CD of the Spanish Rock band "Narco" in November 2002, but when the brotherhoods heard about it, they started a lawsuit against it. In the end, the game was removed from the CD.
In a legal movement that it is becoming a classic when facing issues of freedom of expression, the programmer has been accused by the attorney of both offending religious feelings and of misuse of intellectual property, since the programmer didn't have permission to use images from the brotherhoods.
The court will hear the case on 29 September. The public prosecutor asks for one year in prison for the intellectual property charge and ten months for offending religious feelings.
(Contribution by David Casacuberta, EDRI-member CPSR-Spain)
On 12 and 13 September the Council of Europe convened a Pan-European Forum on "Human Rights in the Information Society: Responsible Behaviour by Key Actors" with representatives from state, industry and civil society.
The Forum was a follow-up to the recent Declaration of the Committee of Ministers on Human Rights and the Rule of Law in the Information Society, plus general Council of Europe priorities regarding the protection of children and internet content. The Forum aimed at identifying and discussing "responsible" and "irresponsible" behaviour by key actors and how states, industry and civil society can work together (inter alia through partnerships, policy making, greater awareness and education) to ensure the promotion and protection of human rights in the Information Society. On behalf of EDRI, Meryem Marzouki (IRIS, France) and Rikke Frank Joergensen (Digital Rights, Denmark) were invited to participate to the Forum, and especially to the panel on the civil society role.
The Forum was followed on 14 and 15 September by the second meeting of the CoE Group of specialists on human rights in the information society (MC-S-IS), where EDRI now enjoys a civil society observer status. This group has been set up by the CoE media and new communication services steering committee (CD-MC). Main points on the agenda were:
-discussion on the development of CoE guidelines to promote "responsible behaviour by key actors", in a direct link with the Forum;
-the development of strategies to promote CoE standards among information society actors;
-discussion about a questionnaire proposed by the group Secretariat on the implementation of CoE guidelines on freedom of expression in the information society in member States;
-and finally, an answer to the CD-MC invitation to propose clarifications of various governance models or regimes (self-, co-regulation, or State regulation only), in view of establishing a common position.
It is a positive development that Council of Europe is increasingly involving civil society in its work, and shows awareness and willingness to address the specific human rights challenges within an information society context. However, because the link is still relatively new within this setting, some issues were reopened that should not be reopened, for example whether HR standards on privacy and freedom of expression, including conditions to restrict these standards, apply to internet in the same way as they do off-line. Specific issues in this discussion are the protection of children that should go above the rights of adults to freely seek information and the responsibility forced on ISPs to act as judges of the content on their servers. From a human rights perspective it is crucial to distinguish clearly between content which is illegal and content which is legal, though it might be perceived as harmful by some actors. The latter enjoys full protection under art. 10 of the European Convention on Human Rights.
One of conclusions of the Forum was a commitment to further address media literacy, HR education and HR-proofing. This latter issue means states need to demonstrate their national legislation and policies are HR compliant.
During the Forum as well as, in a more operational manner, during the MC-S-IS meeting, EDRI reminded the participants of these principles, proposing that they could be more formally reaffirmed in future CoE guidelines to be prepared by the group of specialists. EDRI also proposed that an independent Commission on human rights and the rule of law in the information society be set up at the CoE level. This commission should assess, on a regular basis, the implementation of human rights and the rule of law standards in the legislation and practices relevant to the information society in all CoE member States, and to promote these standards at national level. In this respect, EDRI welcomed the proposed questionnaire on the implementation of CoE guidelines on freedom of expression in the information society. EDRI saw it as a good example of the tools an independent Commission should use for its assessment work and proposed that such questionnaires be also developed on other issues, for example on the implementation of the CoE guidelines on privacy.
The next MM-S-IS group meeting is scheduled in December 2005. A second edition of the CoE Pan-European Forum is planned in 2006.
CoE Pan-European Forum (12-13.09.2005) http://www.coe.int/T/E/human_rights/media/Links/Events/ForumStbgSept20...
Second meeting of the MC-S-IS (14-15.09.2005) http://www.coe.int/T/E/human%5Frights/media/1_Intergovernmental_Co-ope...
(Contribution by Rikke Frank Joergensen and Meryem Marzouki, EDRI-members Digital Rights Denmark and IRIS, France)
The EDRI and XS4ALL petition against data retention has attracted over 48.000 signatures, of which over 19.000 from the Netherlands (where the campaign was launched) and over 5.500 from Germany and Finland. Runners-up in the daily country count are Bulgaria and Sweden (over 2.000 each), followed by Austria (over 1.500). Italy, Spain, Belgium, France, Slovenia, the US and the UK have each contributed over a 1.000 signatures.
Currently, 75 organisations and companies have signed in support of the petition. The petition is now available in 20 languages, including Basq, Catalan and Greek.
The campaign continues to invite signatures and support throughout September and possibly October 2005, as long as the political battle between the European Commission and the Council of ministers of Justice and Home Affairs continues.
Petition
http://www.dataretentionisnosolution.com
http://www.stopdataretention.com
Petition WIKI
http://wiki.dataretentionisnosolution.com
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In the series Information Technology & Law, the Dutch University of Tilburg has published a volume on camera surveillance and workplace privacy, which includes 11 country reports. The European countries covered by the report are: the Netherlands, Belgium, the UK, Germany, Hungary and Italy.
The editors argue that Europeans, similar to the US, have a 'reasonable expectation of privacy'. But is this right codified in national law or perhaps granted by case law? When it comes to workfloor privacy, there is no specific national legislation in any of the examined EU countries. Though data protection authorities have drafted useful codes of conduct, employers seem to have an advantage when a case comes to court. "The overall picture is that the lack of legislation has a negative effect on the privacy expectations of employees and that little has been done in general to strengthen their vulnerable position."
In general, the editors note that the concept of reasonable expection of privacy is usually only tested in court in criminal and dismissal cases. "In these cases, the privacy intrusion is sufficiently important to go to court (...) Therefore, the case law does not draw a clear picture of what 'normal' people might expect. This is especially the case with camera surveillance technology that is permanently used to monitor behaviour in public areas and permanent workplace monitoring of, for instance, e-mail."
Reasonable Expectations of Privacy?
Eleven country report on camera surveillance and workplace privacy
Edited by Sjaak Nouwt, Berend R. de Vries and Corien Prins, IT & Law nr 7,
The Hague 2005
http://www.asserpress.nl/cata/itlaw7/fra.htm
19-30 September 2005, Geneva, Switzerland
3rd meeting of the Preparatory Committee for the World Summit on the Information Society (PrepCom-3)
http://www.wsis.org
civil society perspectives
http://www.worldsummit2005.org
21-23 September 2005, French Riviera, World E-ID .
The three day conference World e-ID (previously named 'eGovernment &
SmartCard International Meeting') is organised by the main pan-european
e-government association eForum and deals with the future application of
DNA and other biometrics for identification usages, both politically and
technically. High-level representatives from the national governments and
from the European Commission will present an inventory of current
initiatives and speak about their visions of the future. .
http://www.strategiestm.com/conferences/we-id/05/program.htm
1 October 2005, deadline Call for Papers 22C3
The 22nd German Chaos Communication Conference is inviting submissions
from potential speakers, either in German or English. The conference will
take place in Berlin from 27 to 31 December 2005.
http://www.ccc.de/congress/2005/cfp.html
5 October 2005, Paris, France, RFID
Radio-Frequency Identification (RFID): Applications and Public Policy Considerations. Conference convened by the Committee for Information, Computer and Communications Policy (ICCP) of the Organisation for Economic Co-operation and Development (OECD).
25 October 2005, Vienna, Austria
28 October 2005, Bielefeld and Prague, Germany and Czech Republic
29 October 2005, Zurich, Switzerland
Presentations of the Big Brother Awards
International ceremony schedule
http://www.bigbrotherawards.org/
1-2 December 2005, London, UK, Patenting Lives
Conference in the Queen Mary Intellectual Property Research Institute. The call for papers closes on 26 August 2005 and invites abstracts on topics such as Access to Knowledge, Consumer Aspects, Public Interest, Public Goods, Public Domain and Human Rights.
http://www.patentinglives.org/conference.htm