EDRI-gram newsletter - Number 11, 19 June 2003

EDRI-gram newsletter edrigram at edri.org
Thu Jun 19 22:10:43 CEST 2003


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                            EDRI-gram

     bi-weekly newsletter about digital civil rights in Europe

                     Number 11, 19 June 2003

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Contents
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1.  Answers to EU questionnaire on spam
2.  OSCE statement about freedom of the media on-line
3.  Industry groups against data retention laws
4.  Right of reply in on-line media
5.  Finnish Big Brother Awards for YTV and Sonera
6.  EP Legal Committee approves of software patents
7.  NGOs want Human Rights Commissioner at WSIS
8.  UK acknowledges public criticism of identity-card
9.  Plans to extend Schengen Information System
10. France ready to ratify Cybercrime convention
11. Recommended Reading
12. Agenda
13. About

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1. ANSWERS TO EU QUESTIONNAIRE ON SPAM
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During the last meeting of the EU Communication Committee on 11 June, a 
document was presented with answers of the member states to the 
questionnaire on spam. The same document was also presented next day to the 
members of the article 29 working party (the collaboration between the EU 
data protection authorities). The questionnaire was developed by the 
European Commission to find out what problems member states might incur 
when implementing the spam-ban decreed by the new Directive on Privacy in 
the Telecommunications Sector.

The answers show a great variety in approach when it comes to awareness 
raising, complaints mechanisms and judicial remedies and penalties. The new 
privacy directive raises a number of complex issues. How should consent be 
construed, and how should member states deal with the difference in 
protection between legal and natural persons? Under Article 13 Member 
States are only required to ensure the protection to natural persons, not 
to legal persons. But how can a sender determine whether a recipient is a 
natural or a legal person ? Should an e-mail address consisting of the name 
of an individual working for a company be considered as belonging to 
natural or a legal person? The definition of direct marketing is also 
complex. There is no definition of direct marketing, only a description in 
recital 30 of Directive 1995/46/EC, which states that messages by charities 
and political parties are also covered by the definition.

"A majority of respondents would favour EU guidelines on these issues, in 
order to guarantee as much effectiveness as possible", the report states. 
Disappointingly, the Commission refrains from issuing specific guidelines 
to clarify minimum standards. The commission only wants to set-up an 
informal on-line newsgroup with 2 representatives from each country (one 
from the government designated competent authority and 1 from the Data 
Protection Authority).

EDRI was invited to attend the CoCom meeting as an expert. According to 
EDRI, it would be good if every member state would at least empower the 
National Regulatory Authority or Data Protection Authority to impose 
administrative fines. Secondly, EDRI expects these guidelines to contain 
minimum standards of redress for internet users when receiving spam from 
any country within the internal market. When creating codes of conduct on 
top of these minimum legal standards, representatives from internet user 
groups and/or consumer associations should be heard and approval of the 
data protection authority should be required.

Answers to the questionnaire (03.06.2003)
http://www.edri.org/docs/cocom03-33.pdf

Directive 2002/58/EC concerning the processing of personal data and the 
protection of privacy in the electronic communications sector
http://europa.eu.int/comm/internal_market/privacy/law_en.htm


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2. OSCE STATEMENT ABOUT FREEDOM OF THE MEDIA ON-LINE
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At the end of a two-day conference in Amsterdam on internet-related perils 
to freedom of expression, the OSCE Representative on Freedom of the Media, 
Freimut Duve has issued a call to take up a strong position towards free 
flow of information on the internet. The Organization for Security and 
Co-operation in Europe (OSCE) is the largest regional security organization 
in the world with 55 participating States from Europe, Central Asia and 
North America.

"Freedom of the Media as a human right is universal. No matter what 
technical means are used to channel the work of journalists to the public - 
be it TV, radio, newspapers or the Internet - the basic constitutional 
value of freedom of the media must not be questioned", Freimut Duve said in 
his opening remarks to the conference.

In his statement Duve addresses the delicate balance between the need to 
fight illegal content and the importance to guarantee freedom of 
expression. "All legislative and law enforcement activity must clearly 
target only illegal content and not the infrastructure of the Internet 
itself." Filtering or blocking content is not acceptable, problems with 
illegal content should be addressed in the country of origin, Duve writes, 
because "In a modern democratic and civil society citizens themselves 
should make the decision on what they want to access on the Internet."

The recommendation also addresses the perils to free speech arising from 
the extensions of copyright and patent law. "To a considerable extent the 
fast pace of innovation of digital networks is due to the fact that most of 
the basic code and software are in the public domain, free for everyone to 
use and enhance. This free-of-charge infrastructure is one of the key 
elements of freedom of expression on the Internet. Access to the public 
domain is important for both technical and cultural innovation and must not 
be endangered through the adoption of new provisions related to patent and 
copyright law."

Amsterdam Recommendation (17.06.2003)
http://www.osce.org/documents/rfm/2003/06/215_en.pdf


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3. INDUSTRY GROUPS AGAINST DATA RETENTION LAWS
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Four major industry groups have published a joint statement against 
mandatory data retention. The coalition represents worldwide and European 
businesses including most major electronic communications service providers 
and manufacturers. They are challenging EU member states on proposals that 
would require communication service providers to store details of all 
calls, emails and transactions for use by law enforcement agencies.

In the statement the coalition expresses concern at the overly broad 
definitions of traffic data and excessive storage periods, costs for 
industry, technical feasibility and damage to end-user confidence due to 
privacy concerns and increased security risks.

The statement recommends that European countries favour data preservation 
(targeted storage of specific data on specified end-users) over data 
retention (general storage of data for a specified period of time). It also 
says that any requirement for data storage must be "necessary, appropriate 
and proportionate" and that "transparent and effective oversight procedures 
are necessary to prevent abuses and to safeguard public confidence".

A majority of EU members favours a binding European law for mandatory data 
retention as became clear from the answers to a questionnaire that the EU 
previously sent to member states.

Common industry statement on storage of traffic data for law enforcement 
purposes (04.06.2003)
http://www.iccwbo.org/home/news_archives/2003/stories/data.asp

Answers to questionnaire on traffic data retention (20.11.2002)
http://www.effi.org/sananvapaus/eu-2002-11-20.html


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4. RIGHT OF REPLY IN ON-LINE MEDIA
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The Council of Europe (45 member states) is finalizing a recommendation on 
the 'right of reply' in on-line media. Through a right of reply persons and 
organisations can reply to articles in the media in which they have been 
portrayed or criticized. Many countries in Europe already have a limited 
right of reply for printed media.

A committee of specialists has finalized the draft recommendation during a 
16-18 June meeting. The recommendations are not limited to professional 
on-line media but "any natural or legal person or other entity whose [main] 
activity is to engage in the collection, editing and dissemination of 
information to the public via the Internet". This definition will not only 
cover professional news portals but also personal blogs, moderated 
mailinglists and individual websites.

Some parts of the recommendation are very detailed. "The reply should be 
made publicly available in a prominent place for a period of time which is 
at least equal to the period of time during which the contested information 
was publicly available, but in any case no less than for 24 hours." The 
recommendation will pose a greater burden on on-line media then on off-line 
media as on-line media are supposed to have more room for lengthy replies: 
"There should be flexibility regarding the length of the reply since there 
are less capacity limits for content than in off-line media."

An earlier draft of the recommendation limited itself to professional 
on-line media. But after an expert hearing in February 2003 definitions 
were broadened. The summary of the hearing mentions: "It could be argued 
that there was a particular need to grant a right of reply against 
non-professional media where there was an increased risk of compromising 
material."

The recommendation might collide with the very recent declaration on 
freedom on the internet by the same Council of Europe. That declaration 
urged countries to preserve anonymity on the internet. But the 
recommendation on the right of reply in on-line media mentions that 
"on-line media should make the name and contact details of a person 
responsible for handling requests for replies easily available".

A recommendation from the Council of Europe is not binding for its member 
states.

The right of reply in the on-line environment (21.03.2003)
http://www.coe.int/t/e/human_rights/media/7_Links/Right_of_reply_hearing.asp


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5. FINNISH BIG BROTHER AWARDS FOR YTV AND SONERA
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On 4 June EDRI-member EFFI organised a second annual Big Brother Ceremony. 
The award in the public sector was given to YTV, a firm that controls 
public transport in the Helsinki region. The company received the award for 
its new electronical ticket system that stores individual passenger 
information, including social security numbers. Anonymous cards were 
available, but in practice only for business purposes, at a much higher 
price. Only after a long struggle with the the Finnish data protection 
agency YTV finally changed their mind and concluded that the system could 
also work without any identification of the passengers.

For the Big Brother Award in the business category there was really only 
one candidate. Sonera, the biggest telephone company in Finland, was caught 
analysing the traffic data from the mobile phones of at least 50 customers, 
both employees and outsiders, in order to find out who had been leaking 
confidential corporate information to the press. The analysis didn't 
produce a suspect. At least 5 senior staff members were arrested (but later 
released) including the company executive officer (CEO). They will most 
likely face criminal charges.

A positive award was given to the Finnish ISPs, who have been very 
successful in their lobby against mandatory retention of telecom traffic 
data. Governmental plans for a 2 year period were withdrawn. Finnish 
providers are now required to retain traffic data for a period of 3 weeks. 
A honourable mention was given to Finnair, because of the companies refusal 
so far to hand-over passenger data to the US government.

Pictures and description of BBA ceremony (translation in English will 
follow soon)
http://www.effi.org/yksityisyys/bb2003/index.html?setlang=en

YTV English web page:
http://www.ytv.fi/matkakortti/english/index.html

More arrests in Sonera snooping probe (The Register - 26.11.2002)
http://www.theregister.co.uk/content/6/28295.html

(Contribution by Ville Oksanen, EFFI)


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6. EP LEGAL COMMITTEE APPROVES OF SOFTWARE PATENTS
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The European Parliament's Committee for Legal Affairs and the Internal 
Market (JURI) voted Tuesday 17 June about a list of proposed amendments to 
the planned software patent directive. It was the third and last in a 
series of committee votes. The results will be presented to the parliament 
in plenary early in September. The other two commissions (Culture, 
Industry) had chosen to more or less clearly forbid software patents. The 
rapporteur of the JURI committee, Arlene McCarthy (UK socialist) also 
claimed to be aiming for a "restrictive harmonisation of the status quo" 
and "exclusion of software as such, algorithms and business methods from 
patentability". Yet McCarthy presented a voting list to fellow members of 
parliament that does make it possible to turn ideas like the Amazon 
One-Click shopping method into patentable inventions.

McCarthy and her followers rejected all amendment proposals that would 
limit patentability while supporting all those that even go beyond the 
European Commission's proposal. The new amendments threaten to impose 
unlimited patentability and patent enforceability in Europe, with little 
chance of recovery for years to come.

Most of McCarthy's proposals found a conservative-socialist 2/3 majority 
(20 of 30 MEPs), whereas the proposals from the other committees (CULT, 
ITRE) and study reports commissioned by parliament and other EU 
institutions were disregarded. A few socialists and conservatives voted 
together with Greens, Left and (partially) Liberals in favour of amendments 
that would limit patentability, but they were overruled by the two biggest 
blocks.

Daniel Cohn-Bendit (Greens - Fr), co-president of the Greens/EFA group and 
chairman of a conference earlier this year on software patents and SMEs, 
commented: "This patent report is an insult even to the principle of free 
trade. Pretending to protect inventors and their inventions, it instead 
allows multinationals to lock up the market."

Detailed description of the vote in JURI
http://swpat.ffii.org/news/03/juri0617/

Public debate about software patents in The Guardian: Richard Stallman and 
Nick Hill attack software patents
http://www.guardian.co.uk/online/story/0,3605,970294,00.html

Rapporteur Arlene McCarthy defends her proposals
http://www.guardian.co.uk/online/story/0,3605,975126,00.html

(Contribution by Hartmut Pilch, Foundation For a Free Information structure)


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7. NGOs WANT HUMAN RIGHTS COMMISSIONER AT WSIS
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The World Summit on the Information Society (WSIS), the first part of which 
will be held in Geneva from 10 to 12 December this year, tries to involve 
governments, the private sector and the civil society in its process. 
Intergovernmental organizations and various UN Agencies are also part of 
the WSIS, with the International Telecommunications Union being the 
organizer of the whole event. But so far, the absence of the UN Office of 
the High Commissioner for Human Rights has been remarkable.

43 International non-governmental organisations (NGOs) have signed an open 
letter to Mr Bertrand Ramcharan, the UN Deputy High Commissioner for Human 
Rights, calling for his active participation. The initiative is also 
endorsed by EDRI.

The participation of the Human Rights Commissioner to the preparatory 
meetings and the World Summit itself would help to ensure that human rights 
language in the WSIS process is comprehensive, strong and consistent with 
resolutions and decisions adopted by the Commission on Human Rights. The 
development of an information and communication society has to build on a 
core set of principles that are fundamental for democratic societies. 
International human rights standards represent such principles and should 
serve as the international framework guiding regional and national policies 
and actions.

A copy has been sent by email to Mr Adama Samassekou, President of the WSIS 
Preparatory Process, and to Mr Pierre Gagné, Director of the WSIS Executive 
Secretariat.

This letter is a joint initiative from the World Federalist Movement and 
the WSIS Human Rights in the Information Society Caucus, a group of 22 NGOs.

The letter with the list of signatures is available on the Human Rights 
Caucus web site
http://www.iris.sgdg.org/actions/smsi/hr-wsis

Draft action plan and declaration of principles (05.06.2003)
http://www.itu.int/wsis/documents/doc_multi.asp?lang=en&id=624%7C626

Official website of organisers of the World Summit
http://www.itu.int/wsis/

(Contribution by Meryem Marzouki, IRIS and co-coordinator of the WSIS Human 
Rights in the Information Society Caucus)


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8. UK ACKNOWLEDGES PUBLIC CRITICISM OF IDENTITY-CARD
==================================================================

The UK Government has finally admitted that the public are overwhelmingly 
opposed to the idea of a national ID card. In response to a parliamentary 
question from member of parliament Anne McIntosh, Home Office minister 
Beverley Hughes has confirmed that over 5,000 of the 7,000 responses to a 
public consultation on the issue were opposed to the scheme.

Recently, government ministers claimed that they received around 2,000 
responses, 2:1 of which were in favour of the idea. Yet stand.org.uk, which 
allowed user to e-mail responses to the consultation, report that they 
forwarded 5,029 -- mostly negative -- messages on behalf of users. And the 
798 responses sent through two phones lines (Yes and No) set up by 
EDRI-member Privacy International were also ignored.

Privacy International made an open government request early in May to ask 
the Home Office exactly how many responses they had received, and how those 
responses would be classified. But on the day the request was due to be 
answered, the Home Office told Privacy International that a similar request 
for information had been made by a Member of Parliament. Therefore, due to 
to parliamentary procedure, they would have to answer that MPs query first. 
(This procedure is not mentioned in the open government code that governs 
these requests).

The latest press reports suggest that the government intends to press on 
with its plans for ID cards - this time using the crime and asylum 
arguments that they explicitly rejected in 2002 when they launched their 
consultation.

Dossier Privacy International
http://www.privacyinternational.org/issues/idcard/uk/

(Contribution by Ian Brown, FIPR)


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9. EXTENSION OF SCHENGEN INFORMATION SYSTEM
==================================================================

The European Parliament currently discusses 3 different reports about the 
Schengen Information System (SIS). Rapporteur for all three reports is 
Carlos Coelho. The reports aim at extending the amount of data handled and 
the degree of cross-linking within the computer network.

Coelho, a Portuguese Conservative, has already been the Rapporteur on four 
previous reports on the Schengen Information System in the last 
year-and-a-half. Before that, he was the chairman of the Temporary 
Committee on the Echelon system, and it is in part his merit that the 
report on the U.S.-led interception system became a call for something 
similar in the EU. Coelho may be considered very close to pro-surveillance 
circles in the Council and the Commission. For this reason, his reports 
should more or less reflect the positions of the officials running the SIS 
server in Strasbourg and its mirrors in each of the EU Member States.

One of the reports, officially an own-initiative report (Proposal for a 
Recommendation pursuant to Rule 49(1) of the Rules of Procedure) on behalf 
of the Conservative Group in the EP, deals with the schedule and 
capabilities of the Schengen Information System II (SIS II), which shall be 
installed by 2006. As a starting point, Coelho quotes from a council 
Document stating "When the SIS was first created, its only purpose was to 
be a compensatory measure for the opening of the borders. Ever since, and 
not in the least because the SIS has proven to be a useful and efficient 
tool, recognition has grown that the potential of the SIS could be 
maximised, mainly within the frame of police cooperation." This would 
probably include close links between Europol and SIS, a plan that was 
uncovered by the UK publication Statewatch last year.

Besides extending SIS / SIS II from a border-oriented to an all-over data 
warehouse - which has already been acquired in practice, Coelho and his 
party plan to extend capacities, scope and users of the system: "SIS II 
must have the potential to handle a significantly larger quantity of data 
and be extended to cope with new information types, new subjects, further 
new functions and new categories of users." He quotes from the draft 
conclusions of the June 5th / 6th Justice and Home Affairs Council to give 
a few examples of new features of the system, e.g. interlinking of alerts 
('alert' is what a data record in SIS is called), including biometric data 
and new 'categories of persons' like 'violent troublemakers' (EU slang for 
persons engaged in Anti-EU Demonstrations) and 'persons precluded from 
leaving the Schengen area'.

Working Document on the Schengen Information System II (SIS II): current 
developments (timetable, new functionalities and users currently under 
discussion)
http://www.europarl.eu.int/meetdocs/committees/libe/20030611/499809EN.pdf

Working Document on Schengen Information System II: future developments
http://www.europarl.eu.int/meetdocs/committees/libe/20030611/500117EN.pdf

Proposal for a Recommendation pursuant to Rule 49(1) of the Rules of 
Procedure by Carlos Coelho on behalf of the PPE-DE Group on the 
second-generation Schengen information system (SIS II)
http://www.europarl.eu.int/meetdocs/committees/libe/20030611/030066en.pdf

Statewatch: Europol to be given access to the S.I.S., then custody?
http://www.statewatch.org/news/2002/mar/15europol.htm

(Contribution by Andreas Dietl, consultant on EU privacy issues)


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10. FRANCE READY TO RATIFY CYBERCRIME CONVENTION
==================================================================

France has started the process of ratification of the Council of Europe 
cybercrime convention. On 11 June, Dominique de Villepin, the French 
minister of foreign affairs presented to the council of ministers a draft 
law for the ratification of the convention. France would be the first EU 
country to ratify the convention, which has only been ratified till now by 
3 Council of Europe countries: Albania, Croatia and Estonia. The convention 
needs at least 5 ratifications (among them 3 from CoE countries) to enter 
into force.

Press release announcing ratification plans (in French - 11.06.2003)
http://www.premier-ministre.gouv.fr/fr/p.cfm?ref=39831

IRIS dossier on the cybercrime convention
http://www.iris.sgdg.org/actions/cybercrime/

(Contribution by Meryem Marzouki, IRIS)


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11. RECOMMENDED READING
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On 13 June, the Article 29 working party (the association of the EU data 
protection authorities) released an opinion about the transfer of so-called 
PNR-data to the USA, detailed booking-information about European 
airtravellers. The data protection authorities recommend a 'push' technique 
for selected records, in stead of full and live access for the Americans to 
all databases with PNR-data. Pushing also enables the European airlines to 
limit the amount of information per passenger, and for example not give 
away sensitive data like meal preferences.

Finally, the working party recommends that the purposes for which the data 
will be used should be limited to fighting acts of terrorism without 
expanding their scope to other unspecified 'serious criminal offences'.

Opinion on PNR transfer, 13 June 2003:
http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs/2003/wp78_en.pdf


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12. AGENDA
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20 June 2003 Registration deadline WSIS Intersessional Meeting
The meeting will take place 15-18 July 2003, in the UNESCO headquarters in 
Paris, France. The Intersessional Period between PrepCom-2 and PrepCom-3 
will be dedicated to refining the working documents for the Draft 
Declaration of Principles and Draft Action Plan. Only NGOs accredited to 
prepCom2 and/or in consultative status with UN/ECOSOC may participate.
http://www.itu.int/wsis/preparatory/prepcom/intersessional/index.html

25 June 2003 London, United Kingdom - International Big Brother Award
http://www.privacyinternational.org/bigbrother/

30 June - 2 July 2003 St. Petersburg, Russia - Building the Information 
Commonwealth
http://www.communities.org.ru/conference/

9-12 July 2003 Metz, France - RMLL2003
(Unofficial) fourth annual Libre Software meeting
http://www.rencontresmondiales.org/

7-10 August 2003 Berlin, Germany - Chaos Computer Camp 2003
http://www.ccc.de/camp/

5 September - Deadline Call for Papers about Copyright and Open and 
Proprietary Software
On 4-5 December 2003, the Center for Tele-Information of the Technical 
University of Denmark organizes its 8th annual international conference - 
this year on copyright and software patents. A selection of the best papers 
for the conference will be published in the international journal 
Telematics and Informatics in spring 2004.
http://www.cti.dtu.dk


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13. ABOUT
==================================================================

EDRI-gram is a bi-weekly newsletter from European Digital Rights, an 
association of privacy and civil rights organisations in Europe. Currently 
EDRI has 10 members from 7 European countries. EDRI takes an active 
interest in developments in the EU accession countries and wants to share 
knowledge and awareness through the EDRI-grams. All contributions, 
suggestions for content or agenda-tips are most welcome.

Newsletter editor: Sjoera Nas <edrigram at edri.org>

Information about EDRI and its members:
http://www.edri.org/

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