EDRI-gram Newsletter - Number 2.3, 11 February 2004
EDRI-gram newsletter
edrigram at edri.org
Wed Feb 11 23:07:20 CET 2004
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EDRI-gram
bi-weekly newsletter about digital civil rights in Europe
Number 2.3, 11 February 2004
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CONTENTS
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1. EU Commission heads for global travel surveillance system
2. Results OECD workshop on spam
3. Big Brother Awards presented in Paris
4. IFPI sues Belgian ISP over Usenet
5. European Court underlines public access rights
6. Spy-chips discovered in German loyalty cards
7. More delay for IPR Enforcement and SoftPat Directives
8. Hungary signs cybercrime treaty
9. Dutch police arrests 52 'Nigerian' spammers
10. Recommended reading: laws in Europe against computer
misuse
11. Agenda
12. About
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1. EU COMMISSION HEADS FOR GLOBAL TRAVEL SURVEILLANCE SYSTEM
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The UK civil liberties group Privacy International, in co-
operation with
European Digital Rights, the Foundation for Information
Policy Research
and Statewatch, has published an analysis of the EU-US
negotiations on the
transfer on passenger information (PNR). The report titled
'Transferring
Privacy' describes how the European Commission leaves
European privacy
rights at the mercy of the U.S. Department of Homeland
Security.
According to the report the European Commission has 'not
assured adequate
protection requirements, clear purpose limitation, non-
excessive data
collection, limited data retention time, and insurance
against further
transfers beyond the Department of Homeland Security'. The
report also
points to the insufficiently independent privacy officers on
the US side
that will process complaints from EU passengers and a
retention period of
3.5 years.
Privacy International is concerned that other countries under
pressure
from the U.S. to weaken their privacy regimes will have lost
an ally in
Europe, and will be forced to transfer data under similar, if
not worse,
conditions. "The result will be to a race to the bottom for
global privacy
protection."
In an included commentary the American Civil Liberties Union
worries about
the developments in Europe: "When it comes to privacy
protections, we want
to join Europe, not have them join us."
The report describes in detail how the Commission under the
leadership of
Bolkestein has agreed in secret that the US may use the PNR
data in the
Computer Assisted Passenger Pre-Screening System (CAPPS-II).
This system
will profile all passengers using various sources of
information including
private sector databases and intelligence information.
The report shows that the conflict over PNR transfer has
supporters and
opponents on both sides of the Atlantic: "we are not
witnessing a battle
between Europeans and Americans, but a battle between those
in Europe and
America who would like to construct an infrastructure for the
global
tracking and surveillance of individuals' movements, and
those in Europe
and America who believe that such a course is dangerous to
freedom and an
unpromising means of stopping terrorists."
The European Data Protection Authorities have published an
opinion on the
latest agreements between the EU and the US. The so-called
Article 29 Data
Protection Working Party calls the agreement inadequate. Any
future and
final agreement should at least limit the use of PNR to
fighting acts of
terrorism, the retention period should be shorter and
passengers' data
should not be used for implementing and/or testing CAPPS II
or similar
systems. The Working Party also calls for a 'truly
independent redress
mechanism' instead of the current Privacy Officer at the
Department of
Homeland Security.
Transferring Privacy: The Transfer of Passenger Records and
the Abdication
of Privacy Protection (02.2004)
http://www.privacyinternational.org/issues/terrorism/rpt/tran
sferringprivacy.pdf
Article 29 Data Protection Working Party: Opinion 2/2004
(29.01.2004)
http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs
/2004/wp87_en.pdf
Commission Staff Working Paper on PNR (21.01.2004)
http://www.statewatch.org/news/2004/feb/comm-capps-
5589.en04.pdf
Draft undertakings of the Department of Homeland Security
Bureau of
Customs and Border Protection (12.01.2004)
http://www.statewatch.org/news/2004/jan/EUUSAG2.pdf
Documents and analysis: Statewatch observatory on the
exchange of data on
passengers (PNR) with USA
http://www.statewatch.org/pnrobservatory.htm
News and analysis on PNR and CAPPS-II from the US: Edward
Hasbrouck's blog
http://hasbrouck.org/blog/archives/cat_privacy_and_travel.htm
l
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2. RESULTS OECD WORKSHOP ON SPAM
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During the OECD workshop on spam, held in Brussels on 2 and 3
February,
the consumer unions of Europe and the USA (united in the
Trans Atlantic
Consumer Dialogue) presented the results of a survey amongst
21.102
consumers on both sides of the Atlantic Ocean. 96 percent of
the people
said that either they hated spam or that it annoyed them. 82%
of the
respondents said that governments should only allow
commercial e-mails to
be sent if the recipient has agreed in advance to receive
them (opt-in).
In spite of this apparent massive wish for opt-in,
representatives from
the US Federal Trade Commission defended the new opt-out
legislation in
the United States. This invoked polite criticism from
Commissioner
Liikanen and less politely worded responses from
representatives from ISPs
and consumer associations.
The different approach taken on either side of the Atlantic
"doesn't help"
in developing an international approach to combat spam, said
Erkki
Liikanen, the European Commissioner for the information
society. According
to another spokesperson from the Commission, 80% of all the
countries
united in the OECD already have an opt-regime or are busy
implementing it,
making the US the big exception.
George Mills from Eurocauce calculated that with
approximately 23 million
companies in the United States, even if only 1% of these
companies would
spam, he would have a full time job in sending opt-out
requests, even with
his high average speed of 2 opt-outs per minute.
According to statistics presented by the CEO of the company
Brightmail 60%
of all e-mail in the world is spam. This level will reach its
top later
this year at 65%. Brightmail uses millions of decoy addresses
to detect
and analyse spam. According to these inboxes, 90% of all spam
mails
contains some kind of fraudulous or deceptive sender or
routing
information.
These statistics supported the claim from the FTC that
independent of the
opt-in / opt-out debate, the Can-Spam act is effective. Hugh
Stevenson
from the FTC explained they had already dealed with 55 cases,
mostly
scams. 'Follow the money', was the best advice he could give
to his
audience, even if it takes an average of 10 to 15 subpoena's
to trace an
average spammer through different providers and network
parties. The new
criminal sanctions on spoofing, false headers and misleading
routing
information enabled the FTC to deal with spam-cases that were
otherwise
difficult to prosecute.
More than a 100 experts from Europe, the US, Australia, Korea
and Japan
attended the workshop, mostly focussed on statistics and
practical
solutions for cross-border enforcement. One of the more
hilarious verbal
battles took place between Charles Prescott from the Direct
Marketing
Association and Marc Rotenberg from the USA based civil
liberty group
EPIC. They presented completely different conclusions about
research on
spam in the Pew Internet Project.
Though both agreed that 70% of the interviewed users in the
USA said that
spam made being online unpleasant or annoying, Prescott
concluded that
people that complain about spam complain about everything.
According to
him, all these people also complain about the noise of lawn
blowers. Most
attendees of the workshop fell completely silent after this
insult, but
burst out in cheerful laughter when Marc Rotenberg compared
spammers to
factories that pollute the environment, with governments
advising citizens
to carefully wash their hands, and if necessary, wear gas
masks inside.
The workshop did not produce any clear conclusions, other
than a
confirmation of the recommendations of the European
Commission to combat
spam in many different ways; both with legal and technical
means, as well
as socially and commercially, in educating all internet users
about the
need to secure networks.
TACD survey on spam (02.02.2004)
http://www.tacd.org/docs/?id=225
Annotated program of the workshop (with links to
presentations by speakers)
http://www.oecd.org/document/47/0,2340,en_2649_37441_26514927
_1_1_1_37441,00.html
Pew Internet report on spam (22.10.2003)
http://www.pewinternet.org/reports/toc.asp?Report=102
===================================================
3. BIG BROTHER AWARDS PRESENTED IN PARIS
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On 4 February 2004 the French Big Brother Awards were
presented in a movie
theatre in Paris. In the category 'Government' a double award
was given to
the Ministers of Justice and Internal Affairs, Dominique
Perben and
Nicolas Sarkozy, for their joined efforts in changing the law
on organised
crime. The new adaptation (Perben II) introduces a form of
plea-bargaining
to the French legal system. The law also stretches the
interception and
remote monitoring powers of law enforcement agencies,
allowing them to
secretly place microphones and camera's in cars and private
homes.
According to the jury, the new powers are not limited to the
investigation
of networks of organised crime, but can also be used on small
delinquents
and groups like 'young people in cities', 'immigrants' and
'travellers'.
The law thus seriously erodes civil liberties and fundamental
human
rights.
In the private sector the negative award was presented to the
French
Federation of Insurance Companies (FFSA), for their long-time
lobby to
broaden the access to medical records, stop anonymising such
data and
stimulate a close 'partnership' between patients and
insurance companies.
Two catholic schools in the city of Angers were given a Big
Brother Award
for their use of biometrics to control children. They
installed
fingerprint readers in the school canteens in order to be
able to charge
every parent for every meal, thus excluding children on
financial grounds.
A 4th Big Brother Award was given to the technology of RFID-
tags, mini
spy-chips that can be hidden in all kinds of consumer
products. The
company 'Societe Inside Contactless', based in Aix en
Provence, was named
for selling special long-range RFIDs to China, officially to
counter fraud
in public transport, but ultimately ending up inside students
cards.
Related to similar objectionable trade with China was the
Lifetime Menace
Award presented to the French conglomerate Thales (previously
Thomson
CSF). In 2002 they were already nominated for a contract with
the Chinese
government to deliver smart cards for the next generation IDs
in China.
Thales now earned the special grand menace award for
specialising in
internet surveillance schemes, smart video systems, biometric
devices, and
for its last 'SHIELD' concept - a homeland security
'package', unveiled at
the last MILIPOL trade show in Paris. Furthermore, Thales was
very proud
on having been elected to implement the cyber police network
of Brazilian
city Porto Alegre, where anti-liberal contestants met last
year, in
January 2003.
According to the French privacy-watchers, of all European
institutions,
the Council of Justice and Home Affairs was the most damaging
to
privacy-rights. A European Orwell will be presented soon to
the present
President of the Council, the Irish Minister for Justice,
Equality and Law
Reform, Michael McDowell.
Overview of nominees and winners (in French)
http://nomines.bigbrotherawards.eu.org/index.php?gng=1
Overview of all international big brother awards
http://www.bigbrotherawards.org/
===================================================
4. IFPI SUES BELGIAN ISP OVER USENET
===================================================
The IFPI, the international representative of the recording
industry, has
instigated legal proceedings against the Belgian ISP Telenet
for the
unauthorised distribution of music via Usenet (newsgroups).
Telenet
refuses to block the access to certain newsgroups in its
newsservice
'Bommanews'. The ISP argues that providing Usenet services is
a 'mere
conduit' activity, and under the E-Commerce Directive
(2002/58/EC) a
provider cannot be held liable for just passing bits. The ISP
states:
"Telenet does not control the content of data that are being
transported
over the network by its customers. Telenet acknowledges the
right to
privacy and the freedom of speech of its customers."
It is the first time that the recording industry attacks an
internet
provider for offering usenet services, testing the strict
non-liability
guarantees in the E-Commerce Directive. In a press release
about the case,
the Belgian ISPA supports Telenet. "As ISPs we don?t initiate
the
transmission, we don?t select the recipients, and we also
don?t select or
modify the newsgroup content which is being transmitted." But
the ISPA
also suggests that it is possible to reach an agreement
outside the court.
It proposes to set up a joint meeting with IFPI and the FCCU
(and/or
representatives of the Ministry of Justice). "The outcome of
this debate
could be a Protocol that describes how the IFPI, FCCU/ the
Ministry of
Justice and ISPA will handle future manifestations of illegal
content in
newsgroups."
Press release Telenet (Dutch) and ISPA (English) (09.01.2004)
http://www.telenet.be/overtelenet/persberichten/telenet_wil_k
lare_taal_over_vermeende_muziekpiraten.php
===================================================
5. EUROPEAN COURT UNDERLINES PUBLIC ACCESS RIGHTS
===================================================
The European Court of Justice in a recent judgement has
underlined the
rights to freedom of information. If a governmental document
cannot be
disclosed in full for reasons of public security or
institutional
confidentiality, it should at least be made available in
part.
To promote freedom of information and grant 'the widest
possible access'
to relevant governmental documents, the European Council and
Commission
adopted a Code of Conduct in December 1993, later both
translating that
Code into (legally binding) Decisions. According to those
Decisions,
access can only be refused if disclosure could undermine "the
protection
of the public interest (public security, international
relations, monetary
stability, court proceedings, inspections and investigations)
or to
protect the institution's interest in the confidentiality of
its
proceedings."
In a case that started in March 1999, the Fin Olli Mattila
demanded access
to a number of documents relating to negotiations about co-
operation
between the EU and Russia. Both the Council and the
Commission's
Directorate-General for External Relations refused to give Mr
Mattila the
requested documents, invoking the public interest exception
in the Code of
Conduct and referring to the need to keep discussions between
the European
Union and non-member countries confidential.
In September 1999 the Court of First Instance dismissed all
of Mattila's
access requests (for different reasons). Partial access would
have been a
breach of the principle of proportionality according to this
first
judgement, because examination of the documents in question
shows that
partial access would be meaningless because the parts of the
documents
that could be disclosed would be of no use to the applicant.
Appealing this decision, Mattila demanded at least partial
access, "after
cancelling or editing the sections which may justifiably
qualify as liable
to prejudice the international relations of the European
Community."
Mattilla argued that "it is for the person requesting access
to decide
whether the information in a document has any relevance for
him and not
for the Court of First Instance to decide this solely on the
basis of the
assertions of the institution in whose possession the
document is." The
Council replied that it would be absurd and contrary to the
principles of
sound administration and proportionality to disclose edited
versions of
the documents consisting almost entirely of blank pages.
The Court does not except this line of reasoning and rules
that
"institutions are obliged, under Decisions 93/731 and 94/90
respectively,
and in accordance with the principle of proportionality, to
examine
whether partial access should be granted to the information
not covered by
the exceptions, in the absence of which a decision refusing
access to a
document must be annulled as being vitiated by an error of
law."
Press release Court of Justice (22.01.2004)
http://www.curia.eu.int/en/actu/communiques/cp04/aff/cp040010
en.htm
Judgement in case C-353/01 (available in 11 languages)
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!
prod!CELEXnumdoc&lg=en&numdoc=62001J0353
Statewatch observatory on EU public access cases
http://www.statewatch.org/caselawobs.htm
===================================================
6. SPY-CHIPS DISCOVERED IN GERMAN LOYALTY CARDS
===================================================
After a tour in the Future Store of the German Metro concern,
privacy
advocate Katherine Albrecht discovered spy-chips with unique
numbers in
the customer loyalty cards. She also found RFID tags on
products sold in
the store that were not completely de-activated after the
purchase.
Albrecht, founder of CASPIAN (Consumers Against Supermarket
Privacy
Invasion and Numbering) was invited by the German civil
liberty group
Foebud to lecture about RFIDs and visit the Future Store,
that was opened
last year to test experimental RFID applications on live
shoppers. "We
were shocked to find RFID tags in Metro's 'Payback' loyalty
card," said
Albrecht. "The card application form, brochures, and signage
at the store
made no mention of the embedded technology and Metro
executives spent
several hours showing us the store without telling us about
it."
In addition to the tags in the loyalty cards, Albrecht
discovered that
Metro cannot deactivate the unique identification number
contained in RFID
tags in products it sells. The use of unique, item-level ID
numbers is
one of the key privacy concerns surrounding the use of RFID
tags on
consumer goods.
"Customers are misled into believing that the tags can be
killed at a
special deactivation kiosk, but the kiosk only rewrites a
portion of the
tag, while leaving the unique ID number intact," she said.
Foebud detailed analysis of the Metro RFIDs
http://www.foebud.org/rfid/
Website CASPIAN dedicated to RFIDs
http://www.spychips.com
========================================================
7. MORE DELAY FOR IPRE AND SOFTPAT DIRECTIVES
========================================================
The final vote on two of the most controversial information
society
Directives, the Directive on Software Patents and the
Directive on the
Enforcement of Intellectual Property Rights has been delayed
once more.
The IPRE directive was withdrawn last minute from the 9
February plenary
agenda of the European Parliament. On 6 February the Council
presented a
compromise.
The IPRE directive was designed to prevent piracy and
counterfeiting in
the EU, but the scope and criminal sanctions were extended to
infringement
of any IP right, for example to peer-to-peer file exchangers.
The new
scope was strongly criticised by consumer organisations,
telecoms
operators and internet service providers. They claimed it
would force them
into endless legal proceedings with representatives from the
music and
film industry. They demanded more consumer safeguards to
ensure that a
court case has actually been filed and a judge has weighed
evidence before
personal information should be disclosed about an alleged
infringer.
In order to buy the Irish Presidency more time to secure a
majority,
Parliament decided to withdraw the intellectual property
directive from
its 9 February plenary agenda. The pressure is high to agree
in so-called
First Reading by the European Parliament, before new Member
States join
the European Union in June.
The Council now proposes to limit the scope of the Directive,
leaving it
up to the Member States to decide about possible criminal
sanctions and
deleting Article 21 and its ban on technical devices. The
Commission (and
Parliament rapporteur Mme Fourtou) originally proposed broad
DMCA-like
"anti-circumvention" measures to apply to devices protecting
any type of
intellectual property right.
The Competitiveness Council of Ministers was supposed to have
voted on the
Software Patent Directive on 27 November, 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 stakeholders) called
for the Council
vote to be postponed. The Council Common Position is now
expected on 17
May 2004. The vote in plenary already took place on 24
September 2003.
Parliament adopted a large number of amendments that limited
the
possibility of patenting computer-implemented inventions (See
EDRI-gram nr
18, 25.09.2003).
EU Council Proposal on IPRE Directive (06.02.2004)
http://www.ipjustice.org/CODE/020604EUIPED.html
IP Justice comparison of the different proposals (05.02.2004)
http://www.ffii.org.uk/ip_enforce/IPJ_analysis.html
Consolidated version of the SoftPat vote (24.09.2003)
http://swpat.ffii.org/papers/eubsa-
swpat0202/plen0309/resu/index.en.html
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8. HUNGARY SIGNS CYBERCRIME TREATY
===================================================
On 4 December 2003, Hungary became the fourth country (along
with Albania,
Croatia and Estonia) to ratify the Cybercrime Convention.
Lithuania is the
latest country to have signed the Convention (26 June 2003).
All 15 EU
states have already signed it.
Hungary made an explicit reservation, reserving the right not
to apply
Article 9, paragraph 2, sub-paragraph b. This means they
won't consider a photo to be child pornography if the person
depicted only
appears to be under 18, but is in fact older.
To enter into force, the Cybercrime Treaty only needs 1 more
ratification
from a CoE country.
COE overview signatures treaties
http://www.coe.int/T/e/Com/Press/Convention/default.asp
===================================================
9. DUTCH POLICE ARREST 52 'NIGERIAN' SPAMMERS
===================================================
In January, Dutch police have arrested 52 people suspected of
large scale
internet fraud with the infamous 'Nigerian e-mail' scam.
The scammers sent spam e-mails asking for help in
transferring a large sum
of money out of their country (usually Nigeria), in exchange
for a
generous percentage. According to an AP news report, the gang
had reaped
millions of Euros. A task force of 80 officers raided 23
apartments,
seizing computers, fake passports and 50.000 Euro in cash.
Jan Willem Broekema, board member of the Dutch Data
Protection Authority
explained during the OECD workshop on spam that he expected
hundreds more
to be arrested in the nearby future, presumably putting a
worldwide stop
to the Nigerian scam.
Arrests have been made in several countries in recent years,
including
Australia, Canada, and the United States, but the brunt
seemed based in
Amsterdam, in a remote high-rise area locally known as
'Bijlmer'. Six
people, three from Nigeria and three from Benin, were
convicted in a
similar case in Amsterdam in May, receiving sentences of up
to 4 1/2
years. They had robbed their victims for at least 4 million
euros. The
most spectacular victim of the gang, a Swiss professor,
transferred almost
half a million euro. The money was necessary to buy chemicals
to clean
banknotes with a total value of 36 million US Dollars, the
gang told the
gullible professor. He was promised 25% of that amount.
AP - Dutch police arrest 52 in e-mail scam (30.01.2004)
http://www.salon.com/tech/wire/2004/01/30/scam/
===================================================
10.RECOMMENDED READING
===================================================
Handbook of Legislative Procedures of Computer and Network
Misuse in EU
Countries - Study for the European Commission, Directorate-
General
Information Society, by Rand Europe.
The Handbook is designed to help European Computer Security
Incident
Response Teams (CSIRT) deal with incidents and operate in a
European
environment with divergent legal codes dealing with computer
crime and
misuse. Particular attention is devoted to the examination of
the content
of the Council of Europe's Cybercrime Convention and the
proposed European
Framework Decision on Attacks Against Information Systems.
The publication contains an analysis of legislation in each
EU member
state in the area of computer crime. A summary table is also
provided
together with the law enforcement points of contacts and
reporting
mechanisms.
http://europa.eu.int/information_society/eeurope/2005/doc/all
_about/csirt_handbook_v1.pdf
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11. AGENDA
=============================================================
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11 February 2004 - Start of nominations for Big Brother Award
Bulgaria
The Bulgarian Internet Society has joined forces with the
Access to
Information Program and the Global Internet Policy Initiative
to organise
the Bulgarian Big Brother Awards. Nominations can be send to
bba at isoc.bg
29 February 2004 - Deadline Call for Papers
The Programme Committee of the conference eChallenges 2004 is
looking for
papers or workshop proposals
The conference and exhibition take place in Vienna, Austria
from 27 - 29
October. This will be the fourteenth in a series of annual
conferences
supported by the European Commission,
This year's conference themes include eBusiness, eGovernment,
eWork,
eEurope 2005 and ICT Take-up by SMEs, and International
Collaboration.
http://www.echallenges.org/2004/default.asp?page=call-papers
25 March 2004 - Deadline Call for Papers
The European Black Hat conference 2004 will take place in the
Krasnapolsky
Hotel in Amsterdam, the Netherlands, from 17 to 20 May 2004.
Papers are
invited especially about the European perspective on privacy,
anonymity
and DRM.
http://www.blackhat.com/html/bh-europe-04/bh-europe-04-
cfp.html
26-27 March 2004, Warsaw, Poland
Pan-European Forum on safer internet-issues, organised by the
Media
division of the Council of Europe Human Rights Directorate.
Deadline for
funding applications is 20 February 2004.
http://www.safer-internet.net/pconference.asp
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
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12. ABOUT
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