EDRI-gram newsletter - Number 2.8, 21 April 2004

[EDRI-gram newsletter]

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                            EDRI-gram

    bi-weekly newsletter about digital civil rights in Europe

                    Number 2.8, 21 April 2004


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CONTENTS
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1.  EU Commission taken to court over PNR transfer
2.  Heated debate in Italy about fines for downloading
3.  Demonstration against software patents
4.  Privacy International complaint about Gmail
5.  Belgian internet users under surveillance
6.  European Commission wants to RFID everything
7.  France to implement 1995 Privacy Directive
8.  European Commission: more rules for collecting societies
9.  Zurich surveillance cameras mapped
10. German ruling against violation of GPL software license
11. IPR Directive soon to be law
12. Recommended reading: RFID research
13. Agenda
14. About


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1. EU COMMISSION TAKEN TO COURT OVER PNR TRANSFER
==================================================================

Today, 21 April 2004, the European Parliament has voted to take the
European Commission to court over the agreement with the United States
Department of Homeland Security on the transfer of air passenger's
personal data (PNR) to U.S. authorities. The Strasbourg Court is now to
examine whether the Commission, when making the deal, exceeded its powers
and acted in disrespect of EU Data Protection legislation.

After a major controversy, the project for a recommendation to ask the
opinion of the European Court of Justice was adopted with a small majority
of only 276 votes against 260. The Parliament's biggest Group - the
centre-right wing PPE/DE, counting 232 of the House's 626 members -,
opposed the recommendation, as well as the 29-strong delegation of the UK
Labour Party and presumably a handful of German Social Democrats.

They were under heavy pressure from Member States' governments, who would
not like to see the transfer challenged because they fear diplomatic
complications with the U.S.

During the days and night preceding the vote, the Irish Presidency of the
European Council had lobbied MEPs to drop their support for the
recommendation. Ireland's EU minister Dick Roche himself intervened with
select MEPs in order turn the ballot, arguing privacy concerns had been
taken into account in the agreement. More bluntly, EU Foreign Affairs
Commissioner Chris Patten had argued, addressing the Parliament on
Tuesday, that the data transfer was going to take place, no matter what
the Parliament's vote was going to be, because national governments had
the power to authorise it themselves. Likewise, the U.S. has already
signalled it expects the transfer to continue with the backing of EU
institutions other than the Parliament.

EUpolitix: MEPs take on EU and US over air data deal (21.04.2004)
http://www.eupolitix.com/EN/News/200404/551b989b-4c99-4b3f-a057-
cd9e7b8e290d.htm

EurActiv: Last ditch effort to iron out institutional clash over passenger
data (20.04.2004)
http://www.euractiv.com/cgi-bin/cgint.exe/1046405-993?204&OIDN=1507565&-tt=tp

(Contribution by Andreas Dietl, EDRI EU affairs director)


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2. HEATED DEBATE IN ITALY ABOUT FINES FOR DOWNLOADING
==================================================================

Today, 21 April, the controversial Urbani decree will be discussed again
by the Culture Commission of the Italian Parliament. This law (named after
the Minister of Culture) puts heavy fines on the download of movies, music
or other copyrighted works even when done without any commercial purpose.
Downloaders and file-sharers also risk the seizure of their equipment and
a humiliating publication of the verdict in the national press. Fines
start at 154 euro for private use of a work that has been distributed
illegally, and run up to 1.032 euro in case of a repeated offence.

The decree attempts to authorise surveillance of electronic communication,
introducing an assumption of 'guilty by default' of all internet users.
The debate in the Parliamentary Commissions only seems to cause temporary
delay, since it has the support of most of the Italian government.

There are many reasons to stop the decree in its draft form. First of all,
the reaction of the Italian community (35.000 signatures collected in a
few days), and secondly the protest of many small and large ISPs. Even the
press and music publisher associations protested - the decree at first
only protected movies and not the music.

The decree also conflicts with the Constitution and other laws. Under
privacy legislation, internet providers are forbidden to act as informers
and law enforcers checking their customer traffic, but under the Urbani
decree they risk heavy fines for not informing the police about potential
illegal behaviour of their customers.

Quite curiously, the introduction of this law appears coincides with the
launch of a new pay-per-download service named Rosso Alice and offered by
former state-owned monopolist Telecom Italia. The timing feeds the public
suspicion that the decree is not so much representing the general public
interest, but only protects specific economical interests, most of them
outside of the Italian borders. More than 400 people responded in a heated
debate today on the website 'Punto Informatico', suggesting the
entertainment industry only regrets that torture has not been added to the
range of legal instruments to extract information from internet users.

The current draft of the decree (in Italian)
http://www.camera.it/_dati/leg14/lavori/stampati/pdf/14PDL0058180.pdf

The pay-per-download website by Telecom Italia
http://www.rossoalice.it

Debate about the Urbani decree (in Italian, 21.04.2004)
http://punto-informatico.it/p.asp?i=47874

(Contribution by Daniele and Odo, autistici.org)


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3. DEMONSTRATION AGAINST SOFTWARE PATENTS
==================================================================

1.600 protesters followed a call of the Foundation for a Free Information
Infrastructure (FFII) for a demonstration in Brussels on 14 April 2004.
The event, a protest against new plans to allow for direct and extensive
'patentability of computer-implemented inventions' in the EU, was followed
by a one-and-a-half day conference at the European Parliament,
co-organised by the Green/EFA political group and different Linux
user-groups from 25 European countries. The European Parliament voted on
24 September 2003 against all proposals that would make software
patentable and added additional safeguards, such as freedom of publication
and interoperation. This outcome was unacceptable to both Commission and
representatives from the Member States. They have been working on a new
scheme since.

The Competitiveness Council of Ministers was supposed to have voted on the
Software Patent Directive on 27 November 2003, but due to continuing
controversy over the text and heated disagreements between the Parliament
and the Commission, some Member States (most notably France, which wants
to conduct further consultations with stake-holders) called for the
Council vote to be postponed.

In January 2004, the Irish Presidency of the Council proposed a text
deleting most of the amendments  introduced by the Parliament and lifting
restrictions to the  direct patentability of computer programs, data
structures and process descriptions. Under this proposed compromise,
'computer-implemented' algorithms and business methods, protocols and data
formats would be inventions in the sense of patent law, and the
publication of a functional description of a patented idea, even for
interoperability purposes, would constitute a patent infringement.

On 6 April 2004, the Irish Presidency decided to refer the issue to the
COREPER, the Committee of Member States' Permanent Representatives. The
Presidency hopes that bringing the discussions to the 'political' level
will make it possible to lift remaining objections and to reach an
agreement in time for a common position to be adopted at the meeting of
the Competitiveness Council on May 17-18. The draft Directive will then go
back to the Parliament for a second reading.

Intellectual property for software in the EU is currently covered by 
copyright laws in the same way as written material. However, the European
Patent Office (EPO) has been granting approximately 30.000 software
patents over the years, thus deliberately infringing the European Patent
Convention (EPC) provisions.

Foundation for a Free Information Infrastructure event site
http://plone.ffii.org/events/2004/bxl04/

Pictures of the Brussels demonstration
http://wiki.ael.be/index.php/Demo14and15aprilPictures

Battle resumes over EU plans on computer-related patents (15.04.2004)
http://europa.eu.int/ISPO/ida/jsps/index.jsp?
fuseAction=showDocument&documentID=2417&parent=chapter&preChapterID=0
-140-194

EDRI-gram: 'European Parliament limits software patents' (25.09.2003)
http://www.edri.org/?id=000100000112


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4. PRIVACY INTERNATIONAL COMPLAINT ABOUT GMAIL
==================================================================

EDRI-member Privacy International has filed complaints about Google's
proposed new Gmail service with privacy and data protection regulators in
17 countries in Europe, Canada and Australia. The complaint identifies a
large number of possible breaches of EU law. These include: stability of
the contract, security of data, interception and disclosure of content,
subject control over data, searching of e-mail content, indefinite
retention, confidentiality, third party issues, offshore processing of
data, consent issues and the treatment of sensitive data.

Privacy International is requesting from national data protection
commissioners "to assess this type of service with a view to ensuring that
all necessary protections and safeguards required by the EU Data
Protection Directive and national laws have been implemented. While we
understand that the Gmail contract may be freely entered into by
customers, and that Google has provided a degree of openness about its
intentions, the conditions must be in place to ensure that privacy rights
are protected."

Privacy International points out a few disturbing articles in the Gmail
privacy policy and terms of use. Google lets the user agree that they
"will not copy, reproduce, alter, modify, or create derivative works from
the Service". This means that users are not allowed to copy or extract
their own e-mail. This would violate EU data protection principles that
ensure that  individuals have the ability to control their own data.

"Google may monitor, edit or disclose your personal information, including
the content of your e-mails, if required to do so in order to comply with
any valid legal process or governmental request". The term request remain
undefined.

Privacy International writes: "We believe the Gmail service involves
significant and far-reaching privacy implications. The precedent set by
the service, its enhanced functionality and the likelihood of unexpected
future changes to the system require serious consideration of data
protection issues. We urge you to prospectively investigate this system
with a view to establishing appropriate privacy safeguards."

Privacy International complaint (19.04.2004)
http://www.privacyinternational.org/issues/internet/gmail-complaint.pdf

Google: About Gmail
http://gmail.google.com/gmail/help/about.html


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5. EU COMMISSION WANTS TO RFID EVERYTHING
==================================================================

The European Commission considers it to be part of the Lisbon Strategy -
and therefore a top priority - 'to have smart dust and tag everything'
with Radio Frequency Identification (RFID).

The point was made by Rosalie Zobel, Director of the Information Society
Technologies (IST) programme at the Commission, in her opening speech of a
one-day workshop on 'wireless tags research needs' in Brussels on 20 April
2004. Mrs Zobel thinks this aim can be achieved and dreams of it being
"the source of a new set of business models and creator of high quality
tech jobs".

The workshop was part of a consultation process in relation to Work
Programme 2005-06, which covers the second half of the EU's Sixth Research
Framework Programme (FP6). The Work Programme will be officially published
at the end of October, and is likely to contain three calls for projects
that may be funded by the EU in the field of RFID technology with a total
of 180 Million Euro.

The workshop dealt with a wide range of issues, from radio spectrum
allocation and product life-cycle management to the protection of privacy.
Though hardly any of the industry representatives present wanted to
discourage Mrs. Zobel's hopes, they were generally more sceptic about a
quick and large-scale roll-out of the technology.

Paul McCloskey, speaking for the Irish NMRC institute working on the
so-called smart dust technology emphasised that Mark Weiser's 1991 vision
of ubiquitous computing was still far from reality. His institute is still
working with transponders the size of a cell phone, but miniaturisation is
on the agenda and can be realised very swiftly, as other speakers pointed
out. "In organic electronics, we are still in the 1970s, but the
innovation process from the 1940s to the 1970s has taken place within the
last three years", said Christian Pacha of Infineon on the technological
approach of applying chips and antennas on items and packages already in
the course of production.

Privacy issues in connection with RFID technology were brought up
repeatedly, and the last panel consisted of three privacy experts warning
against the industry's tendency to eliminate privacy-protective measures
such as disabling options or encryption, in order to cut costs for the
still-too-expensive technology.

Workshop website (20.04.2004)
http://www.cordis.lu/ist/directorate_d/ebusiness/workshop.htm

FP6 calls
http://fp6.cordis.lu/fp6/calls_open.cfm

(Contribution by Andreas Dietl, EDRI EU affairs director)


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6. BELGIAN INTERNET USERS UNDER SURVEILLANCE
==================================================================

According to a press article published on 15 April 2004 in the Belgian
daily boulevard paper 'La Derniere Heure', the ministry of interior in
Belgium will test new telecom interception hardware and software on the
fiberlink used by ADSL broadband users in Belgium. The test will be done
by the CTIF (under the federal control of the ministry of interior) during
a non determined period (starting Sunday 25 April) on the fiberlink in
Brussels. The main purpose seems to test the viability of the technical
solution.

This kind of wiretapping is quite different from regular phone (or
internet) interception. Those wiretaps require identifying a specific
caller line or identity. The Belgian 'black box' will monitor all the
traffic transmitted on the fiberlink. If we take the analogy of
'classical' phone interception, it's like monitoring all the in/out phone
traffic of an entire city in the hope to find a specific call.

The 'black box' is a proprietary hardware and software solution called
'NiceTrack', manufactured in Israel by a company called NICE Systems. The
solution seems somewhat similar to the FBI Internet Monitoring system
called 'Carnivore'. Nor the ministry nor Belgacom (the national operator
for the ADSL link) wish to make any comment on the subject but the federal
police has made an official statement that the test regards only an
internal police line.

EDRI-member AEL (Association Electronic Libre) is organising a campaign in
order to inform internet users how to protect their privacy during the
next few weeks. They don't only promote the use of technical internet
tools but aim to increase awareness of general good practises to protect
online privacy. AEL also invited the Belgian Data Protection Authority to
make an official statement on the subject. The 'Ligue des Droits de
l'Homme' (Human Rights League) also expressed serious concerns and reminds
the police that global interception is illegal under the criminal code law
and serious evidence must be shown before doing any interception.

'Un mouchard sur le réseau ADSL de Belgacom' (15.04.2004)
http://www.dhnet.be/dhinfos/article.phtml?id=98178

Statement Federal Police (in French - 16.04.2004)
http://www.fedpol.be/polfed/event/press/2004/26.htm

Nicetrack product information
http://www.nice.com/products/security/nicetrack.html

AEL information and campaign
http://wiki.ael.be/index.php/NoCompromiseOnPrivacyNews

(Contribution by Alexandre Dulaunoy, AEL Belgium)


==================================================================
7. FRANCE TO IMPLEMENT 1995 PRIVACY DIRECTIVE
==================================================================

On 29 April 2004 the French National Assembly will examine in second
reading the draft law implementing the 1995 Directive on the protection of
privacy and personal data. The transposition process started in July 2001
under the previous government. France is the last EU country where the
implementation has not been completed, far beyond the deadline of October
1998.

French people have been however among the first EU citizens to enjoy a law
on personal data protection, with the 'Computing and Freedom Law' (Loi
informatique et libertes) adopted in January 1978. But this law only deals
with protection against government activities, and the transposition is
needed to reinforce protection against private and commercial activities.
The long awaited implementation of the Directive is also supposed to
empower the French Data Protection Authority (Commission nationale de
l'informatique et des libertes or CNIL), giving it the power to impose
financial sanctions on companies when they infringe the law.

However, it appears from the current draft law that the situation is
likely to become worse. As recalled by the French coalition DELIS (Droits
et libertes face a l'informatisation de la societe) in a free opinion
published by Le Monde on 14 April 2004, many provisions may lessen the
protection level of French citizens. Among them, two provisions are
specially dangerous. The first one would authorise rightholders to keep in
their files the identity of their offenders (or their IP numbers); this
has been a clear request from IP rightholders.

The second one is the replacement of the necessary declaration prior to
any collection and use of personal by the nomination of a 'CNIL
intermediary' in any private or public entity, this person being an
employee of the organisation. Proposed in the name of efficiency, this
provision will obviously make independent control difficult.

The French situation is also made difficult by the fact that the draft law
does not seem to raise a lot of concerns from the general public. 25 years
ago the 1978 law was adopted, and the CNIL created, after a large scandal
resulting from a government proposal to interconnect all files of the
administration. Today, French e-government plans are being implemented
without any debate.

Opinion by DELIS published in Le Monde (14.04.04)
http://www.iris.sgdg.org/info-debat/tribune-delis-0404.html

French National Assembly Dossier on the draft law
http://www.assemblee-nationale.fr/12/dossiers/cnil.asp

CNIL
http://www.cnil.fr

(Contribution by Meryem Marzouki, IRIS)


==================================================================
8. EUROPEAN COMMISSION: MORE RULES FOR COLLECTING SOCIETIES
==================================================================

The European Commission has issued a Communication on the Management of
Copyright and Related Rights. In the period since 1991, 7 Directives have
entered into force on copyright law, but none of these specifically
addressed the role and functioning of the collecting societies. The
Commission now recommends a Community framework instrument regulating the
'establishment and status of collecting societies; their functioning and
accountability subject to rules of good governance; as well as their
internal and external control, including dispute settlement mechanisms."

The main problem with the collecting societies is the lack of common
rules, and the problems for commercial users to obtain a community-wide
license. Both users and rightholders have also  complained about the
tariffs and operating expenses, access to arbitration and general lack of
transparency and flexibility.

The Commission hails Digital Rights Management (DRM) as the best way to
solve these issues in the long run, ending the powerful role of the
collecting societies.

For DRM to be effective, "the establishment of a global and interoperable
technical infrastructure based on consensus among the stakeholders appears
to be a necessary corollary to the existing legal framework (...)." The
Commission therefore plans a Recommendation on interoperability, including
publication of open standards. While acceptance among consumers is
described as key to the success, "wider acceptance is yet to be reached".

The Communication briefly mentions the danger of a technological lock-up,
when technological measures prevent users from enjoying legitimate
exceptions to the copyright, such as making a private copy. In the
upcoming (November) review of the Copyright Directive (2001/29/EC), the
Commission will review those provisions in the different Member States.

European Commission Communication on collecting societies (16.04.2004)
http://www.europa.eu.int/comm/internal_market/en/intprop/docs/com-2004-261
_en.pdf


==================================================================
9. ONLINE MAP CAMERAS ZURICH, SWITZERLAND
==================================================================

The organising committee of the Big Brother Awards Switzerland has
published a map of more than 70 video surveillance cameras in a city
district of Zurich (Switzerland). The map was presented on the occasion of
a public camera-spotting walk on 10 April 2004, that was organised as part
of the annual 'Spring surveillance' events.

Most of the cameras are installed by private entities, some of them are
dummies. The cameras are categorised by a special typology. The map can
also be downloaded as a PDF file. Previously, in Belgium, Germany and the
Netherlands, several cities were mapped.

Online surveillance map Zurich
http://www.bigbrotherawards.ch/doc/cctv/

Map Brussel
http://www.constantvzw.com/survcam/

Map 13 German cities, inc Berlin, Cologne, Frankfurt, Hamburg, Munich and
Stuttgart
http://www.dergrossebruder.org/main.php?id=34000

Spotthecam (Innercity Amsterdam)
http://www.spotthecam.nl/camera.html

Map Heerlen (Netherlands)
http://www.irri.nl/cms/index.php?id=130

(Contribution by Christoph Mueller, Big Brother Awards CH)


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10. GERMAN RULING AGAINST VIOLATION OF GPL SOFTWARE LICENSE
==================================================================

A district court in Munich, Germany granted a preliminary injunction
against Sitecom Germany GmbH for violating a GNU General Public License
(GPL).

Sitecom is offering a wireless access router product based on software
developed by the netfilter/iptables project and licensed under GPL. The
GPL offers a free license to software, but requires any re-distributor to
provide the full source code. The GNU GPL is commonly used for many free
software projects, such as the Linux Operating System Kernel.

According to the court, Sitecom did not fulfil the obligations imposed by
the GNU General Public License covering the netfilter/iptables software.
In particular, Sitecom did not make any source code offering or include
the GPL license terms within their products.

Following a warning notice, Sitecom refused to sign a declaration to cease
and desist. The netfilter/iptables project asked the court for a
preliminary injunction, banning Sitecom from distributing its product, or
comply with all obligations imposed by the public license.

In their press release Netfilter cite their representative, Dr. Till
Jaeger, partner of the Berlin and Munich based law firm JBB
Rechtsanwaelte. "To my knowledge, this is the first case in which a
judicial decision has been decreed on the applicability and the validity
of the GNU GPL".

Usually disputes about public licenses are solved behind closed doors.
According to Eben Moglen, co-author of the GPL with Richard Stallman,
preventing such enforcement costs was one of the leading concepts behind
the license.

"I hear quite often that my license has not been tested in court. This
puzzles me. It is, because of the structure of my license, the defendant's
obligation affirmatively to plead it, if she wants to. After all, if she
is distributing, it is either without license, in which case my license
doesn't get tested - there's an unlicensed distribution going on and it's
enjoinable - or the license is pled by the other side... how interesting.
There, if I may put it to you briefly, is the trick. That's how it was
done. That's how an enormous commons came into existence throughout the
world, not just with zero cost of goods and movement and sales, but with
near zero cost of enforcement."

Netfilter/iptables project
http://www.netfilter.org/

Speech Eben Moglen (29.06.2003)
http://emoglen.law.columbia.edu/publications/maine-speech.pdf


==================================================================
11. IPR DIRECTIVE SOON TO BE LAW
==================================================================

Adoption of the Directive on Measures and Procedures to Enforce
Intellectual Property Rights - the infamous Fourtou Report - is a mere
formality. The General Secretariat of the European Council has invited the
Council's Committee of Permanent Representatives (COREPER) to suggest to
the Council, at one of its forthcoming meetings, to adopt the Directive as
an 'A'-item.

The Council is fully satisfied with the final version, as amended by
Parliament on 9 March 2004. The vote was the result of a deal between the
Rapporteur - French Conservative Janelly Fourtou - with the Council in
order to allow for the Directive to be adopted in First Reading.

After adoption by the Council, the next step will be publication of the
Directive in the EU's Official Journal. Member States then have to
transpose it within 24 months.

Council Secretariat, 'I/A Item' note (07.04.2004)
http://register.consilium.eu.int/pdf/en/04/st08/st08285.en04.pdf

Provisional version of the Directive
http://www3.europarl.eu.int/omk/omnsapir.so/pv2?PRG=CALDOC&FILE=20040309
&LANGUE=EN&TPV=PROV&LASTCHAP=33&SDOCTA=25&TXTLST=1&Type_Doc=FIRST&POS=1

Final version may be approximated by applying amendments on the right-hand
column to initial Commission proposal at
http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0046en01.pdf

(Contribution by Andreas Dietl, EDRI EU affairs director)


==================================================================
12. RECOMMENDED READING: RFID RESEARCH
==================================================================

LogicaCMG has published a study on the adoption of RFID in six European
countries. The report gives an outline of the technology and issues behind
RFID such as costs, standardisation and software integration. The focus of
the study is returnable transport items, such as pallets, crates and roll
containers.

The number of RFID pilots has increases significantly in 2004. Out of the
companies interviewed, almost 50 % will gain experience with RFID in a
pilot project in 2004. The UK is ahead of the rest of Europe.

The report does not cover the use of RFID in consumer products. And
although consumer privacy is not directly an issue with RFID on returnable
transport items the report advises companies to develop a privacy policy
and communicate this to their consumers.

Making Waves: RFID Adoption in Returnable Packaging
http://www.logicacmg.com/pdf/RFID.pdf


==================================================================
13. AGENDA
==================================================================

15 May 2004 - Call for privacy-papers
The Data Protection Authorities support a new award for privacy-papers,
named in honour of the US privacy expert Barbara Wellbery (1948-2003). The
award is granted annually by the Morrison & Foerster Foundation. The
winning paper will receive a $3.000 cash award. In addition, the winner is
invited to present his or her paper in Poland at the 26th International
Conference of Data Protection and Privacy Commissioners (14-16 September
2004).
http://www.cbpweb.nl/downloads_overig/med_barbara_wellberry_2.pdf

3-4 June 2004, Vienna, Austria - Free Bitflows conference
Conference and workshops about cultures of access and politics of
dissemination, organised by Public Netbase (AT), in collaboration with
Hull Time Based Arts (Hull, UK); V2_ (Rotterdam, NL); Bootlab (Berlin,
DE); interSpace Media Art Center (Sofia, BG).
http://freebitflows.t0.or.at


10-12 June 2004, Berlin, Germany - Wizards of Os
http://wizards-of-os.org/

13 June 2004, Berlin, Germany - WSIS panel
Details to be announced at the wizards of os conference
http://waste.informatik.hu-berlin.de/Grassmuck/wos3-schedule.html

15-17 September 2004, Strasbourg, France
The Council of Europe is planning a major international conference on "The
Challenge of Cybercrime", which will bring together senior politicians,
computer industry leaders and experts from around the world. No online
information yet.


==================================================================
14. ABOUT
==================================================================

EDRI-gram is a bi-weekly newsletter about digital rights in Europe.
Currently EDRI has 14 members from 11 European countries. EDRI takes an
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