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Some of the amendments passed by the European Parliament (EP) on the Telecom package are still worrying the civil rights groups, both on data retention and IP issues. Also, the fact that some amendments of the EP do not appear in the new document of the European Council working party on Telecommunications and the Information Society creates more confusion.

According to information from Patrick Breyer from the German Working Group on Data Retention, amendment 181 passed by the European Parliament regarding directive 2002/58/EC could be read to legalise "voluntary" blanket data retention practices as currently practised in the US. The amendment would make the entire regulation of traffic data in Article 6 of the directive meaningless. It is not restricted to times when an actual network error occurs but would allow a general collection of traffic data on the grounds of them being useful for "security purposes". It does not set a time limit, either.

Amendment 181 added in the Article 6 the following text: " Without prejudice to compliance with the provisions other than Article 7 of Directive 95/46/EC and Article 5 of this Directive, traffic data may be processed for the legitimate interest of the data controller for the purpose of implementing technical measures to ensure the network and information security, as defined by Article 4 (c) of Regulation (EC) 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency, of a public electronic communication service, a public or private electronic communications network, an information society service or related terminal and electronic communication equipment, except where such interests are overridden by the interests for the fundamental rights and freedoms of the data subject. Such processing must be restricted to that which is strictly necessary for the purposes of such security activity."

It seems that a majority of the EU member states are already critical to this amendment.

But other amendments on the 3 strikes approach have come back on the agenda. On 14 October 2008, the European Council Working Party on Telecommunications and the Information Society issued a document that eliminated, without any explanation or justification, the pro-Bono amendment 166 (Article 32a) of the Universal Access directive (Harbour report) in the Telecoms Package reiterating the European Parliament's opposition to the 3-strikes measures system.

The article in question that said: "Article 32a Access to content, services and applications Member States shall ensure that any restrictions to users' rights to access content, services and applications, if they are necessary, shall be implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness. These measures shall not have the effect of hindering the development of the information society, in compliance with Directive 2000/31/EC, and shall not conflict with citizens' fundamental rights, including the right to privacy and the right to due process" and which was voted by a clear majority in the Parliament, simply lacks from the recent European Council document without any explanation whatsoever.

The document includes some other amendments which pave the way for the 3-strike system, imposing costs on ISPs and removing the oversight by the European Commission and national Regulators meant to protect users from content filtering.

At the same time, the article designed to support the French graduated response measures, (the co-operation Amendment 112 - Article 33 (2a) is kept.

Some of the state members, such as UK, Ireland, Germany, Austria and Hungary have reserves concerning the European Council document but the French government is pushing to see its system imposed on all EU members.

In an attempt to influence the German government's position, a seminar, "on the development of Creative content online" was organized by the French embassy in Berlin with the title "Can the Olivennes agreement set the course

for the digital future?". During the seminar, German MEP Ruth Hieronymi clearly stated that co-operation amendment 112 of the Harbour report in the Telecoms Package provided the basis for the graduated response in EU law. "I am absolutely convinced, that the legal framework is there, to fashion a model like Olivennes that is compatible with European law" she stated in relation to the Telecoms Package.

The MEP also claimed personal responsibility for the withdrawal of Amendment 132 in the Framework directive which opposed graduated response, and was in direct conflict with Amendment 112 and the other pro-Olivennes measures.

Hieronymi's comments show that the attempt to insert graduated response and copyright enforcement measures into the Harbour report was deliberate. Which means that a vote for the directive as it is now, will clearly be a vote for graduated response. Unless there is no opposition form the governments having shown some reserves, the law imposing the graduated response will be passed to all EU countries by December, as the Council seems to have decided to negotiate the document and not send it back to the EP for a second reading.

European Council set to overturn Parliament on 3-strikes (15.10.2008)
http://www.iptegrity.com/index.php?option=com_content&task=view&am...

Working Party on Telecommunications and Information Society - Compromise Proposal for the consolidated version of the proposal amending directive 2002/22/EC (10.10.2008)
http://www.iptegrity.com/pdf/European.Council.Universal.Service.Direct...

"Co-operation" amendment WAS designed to support 3-strikes (17.10.2008)
http://www.iptegrity.com/index.php?option=com_content&task=view&am...

EDRIgram: EP votes Telecoms Package (8.10.2008)
http://www.edri.org/edrigram/number6.19/ep-votes-telecom-package