EDRI-gram Newsletter - Number 2.1, 15 January 2004

EDRI-gram newsletter edrigram at edri.org
Thu Jan 15 20:03:05 CET 2004


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                            EDRI-gram

    bi-weekly newsletter about digital civil rights in Europe

                    Number 2.1, 15 January 2004

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CONTENTS
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1.  PNR: Bolkestein misleads European Parliament
2.  Draft position EU Council on IPR Enforcement
3.  Modified Sony PlayStations allowed in Italy
4.  French draft law obliges providers to monitor content
5.  Belgian consumer group sues music industry
6.  Launch of Irish Free Software Organisation
7.  UK: 4 million surveillance cameras
8.  Romanian journalist fired for internet posting
9.  Schengen information system goes biometric
10. No more court cases for DVD-Jon
11. French Big Brother Awards 4 February
12. Recommended reading: handbook on cybercrime
13. Agenda
14. About

===================================================
1.  PNR: BOLKESTEIN MISLEADS EUROPEAN PARLIAMENT
===================================================

Commissioner Frits Bolkestein concealed important details on the draft
agreement reached with the USA on the transfer of Passenger Name Record
Data (PNR) to the U.S. Bureau of Customs and Border Protection when
reporting to two Committees of the European Parliament four weeks ago.
This is what Bolkestein's spokesman Jonathan Todd has admitted in an
interview with German public television station WDR.

On 16 December 2003, speaking to a joint session of the EU Parliament's
Legal Affairs and Interior Affairs Committees, Bolkestein claimed that the
use of EU citizen?s personal data in the CAPPS-II system was explicitly
exempted from the agreement the negotiation group he heading had just
reached with U.S. authorities. He made the point that this exclusion was
part of 'important concessions' of the U.S. side, prerequisite to the
Commission's agreement to the transfer of PNR data to the U.S.: "The
arrangement will not cover the US Computer Assisted Passenger
Pre-Screening System (CAPPS II)." And: "In concluding my last round of
discussions with Mr Ridge, I informed him that in the light of the
narrower uses for PNR, the exclusion for now of CAPPS II and all the other
improvements they had made, I was prepared to propose that the Commission
make a finding of adequate protection with regard to transfers of PNR to
the US Bureau of Customs and Border Protection."

"We have", Mr. Todd said on 13 January, "agreed that the TSA may use data
for testing purposes. But that includes an obligation not to use the data
operationally, to delete them after the test phase and not to pass them on
to third parties." It is entirely unclear, however, how the Commission
wants to make sure that the deletion will happen and the data is indeed
merely used for testing purposes.

The Commission's confession comes one week after EDRI revealed that the
U.S. side saw the agreement as covering the use of EU citizen's data "to
test - and only to test - CAPPS II". In an e-mail to "Practical Nomad"
editor Edward Hasbrouck, Nuala O'Connor Kelly, the 'Chief Privacy Officer'
of the U.S. Department of Homeland Security, said that was what "the
language of the agreement contemplates".

Mrs. O'Connor Kelly futher more announced: "We also stated publicly that
we will immediately begin follow-on discussions with the EU in order to
establish a framework for the transfer of PNR data for use by CAPPS II
operations once the system has been fully developed and deployed." Mr.
Todd now admits this statement correctly reflects the concessions made by
Commissioner Bolkestein to the U.S. side: "We are already talking with the
Americans about which security measures must be met if PNR data are to be
used in CAPPS-II. We hope to reach an agreement as soon as possible once
the U.S. Congress has approved CAPPS-II."

According to Article 25 of the EU Data Protection Directive, personal data
of EU citizens may be transferred to foreign countries only if these have
an adequate level of Data Protection. In particular, the EU Commission has
to test whether the data will be fairly, lawfully and securely processed,
for limited purposes and in accordance with the data subject?s rights
only, whether the transfer is adequate, relevant and not excessive, the
data transferred are accurate and will not be kept longer than necessary.
The CAPPS-II system, which constitutes an immense Computer network for
surveillance purposes, would, according to almost all privacy experts, not
meet this criteria. What's more, the U.S. administration plans to
interlink CAPPS-II with the even more extensive US-VISIT database system,
to which the U.S. 'Intelligence Community' would have direct access, and
where the data would be kept 100 years.

EDRi EU Affairs Director Andreas Dietl declared in a public statement on
14 January: "It is a shame that Commissioner Bolkestein has tried to
mislead the European Parliament on the nature of the draft agreement dealt
out with the U.S. Department of Homeland Security. The Commission has
agreed to the abuse of EU citizen?s personal data to test a surveillance
system that in its very nature is against the principles of EU data
protection legislation. The claim by the U.S. that the data used for
testing purposes will be deleted thereafter is merely a joke: the data
will still be available in the Computerised Reservation System (CRS),
where it can be accessed by government agencies at any time."

Commissioner Bolkestein's speech to the European Parliament (16.12.2003)
http://europa.eu.int/rapid/start/cgi/guestfr.ksh?
p_action.gettxt=gt&doc=SPEECH/03/613%7C0%7CRAPID&lg=EN&display=

Press release EDRI (14.01.2004)
http://www.edri.org/cgi-bin/index?funktion=view&id=000100000123

Previous press release EDRI in English (06.01.2004)
http://www.edri.org/cgi-bin/index?funktion=view&id=000100000121

in French
http://www.iris.sgdg.org/actions/pnr/comm-edri0104.html

in German
http://www.quintessenz.org/cgi-bin/index?funktion=view&id=000100002802

Edward Hasbrouck's "Practical Nomad" website
http://www.hasbrouck.org/index.html


===================================================
2. DRAFT POSITION EU COUNCIL ON IPR ENFORCEMENT
===================================================

The Irish Presidency of Council of the European Union has published a
Draft Common position on the planned Directive on the Enforcement of
Intellectual Property Rights. On 13 January  the Document was discussed in
Strasbourg with interested Members of the European Parliament and with the
Commission officials who had drafted the initial proposal for the
Directive. The Council paper unites many of the worst proposals on this
Directive so far, while carefully working around most of the good ones. It
has an extremely wide scope, like the Commission proposal, and includes
patents, which were deleted from the scope by the Parliament's Legal
Affairs Committee.

Unlike the version adopted by the Parliament, it calls for penal sanctions
to be imposed on all kinds of Intellectual Property Rights Infringements.
The text proposed by the Council on this issue is similar to an amendment
suggested by the Phonographic Industry Association, IFPI, and initially
tabled erroneously by Austrian Green MEP Mercedes Echerer. The Committee
ended up, however, adopting another amendment by Mrs. Echerer calling
merely for "appropriate sanctions". While it adopted the reference to
limitations in the E-Commerce and Copyright Directives, the Parliament
deleted a reference to the regulations on reverse engineering for
compatibility in the EU Software Directive.

Council as well as Parliament representatives have made it clear that the
current draft of the Council position is still in a fairly early stage of
preparation and that it will most probably take more meetings to find an
agreement. This will be of importance for all the actors involved, because
they want to see the Directive adopted before the enlargement of the
European Union, in order not to give accession states, presumed to be the
realm of piracy, a say in the drafting. If the Parliament should adopt a
position the Council considers unacceptable, there will not remain enough
time to go into a second reading before the dissolution of the Parliament
in the first week of May. This puts pressure on the Council, but also on
the Rapporteur, French Conservative Janelly Fourtou, who shares the
Council's wish to adopt the Directive before the end of the term, to go
ahead with negotiations and to find compromises. The next trilogue meeting
will already take place next Tuesday 20 January in Brussels. It is almost
certain now that the vote in the Parliament's Plenary will be delayed at
least until the session in early March and maybe even to the one at the
end of that month.

'Partially accessible' version (with all footnotes deleted) of the Draft
Council Common Position (19.12.2003)
http://www.ffii.org.uk/ip_enforce/st16289.en03.PA.pdf

(Contribution by Andreas Dietl, EDRI EU affairs director)


===================================================
3. MODIFIED SONY PLAYSTATIONS ALLOWED IN ITALY
===================================================

In an important victory for Italian consumer rights, an Italian court has
rejected the seizure of Sony PlayStation game consoles that use modified
chips to permit unauthorised uses of the game systems. The case is one of
the first to be brought in Italy under the new European Union Copyright
Directive (EUCD).

In December 2003, the Public Prosecutor of Bolzano issued a search and
seizure warrant against companies that purchased modified consoles from
another company previously investigated by the Public Prosecutor of
Bassano del Grappa. On 13 December this warrant lead to the seizing of a
PlayStation and some modified chips from a company in Rimini.


This company took the case to the (civil) court to decide whether the
producer of a device or computer, such as the Sony PlayStation Console,
"to which extent a machine seller can forbid the modifications allowing a
use different than the ones he likes." According to this court?s decision
under Italian civil law, the answer is no.

The case was brought under article 171-ter of the Italian copyright law,
which implements the EUCD in Italy and was passed in April of 2003.

"The Bolzano Court ruled that the new law does not apply because the
modified chips are not primarily intended to circumvent copyright
protection measures," explained University of Milano Law Professor
Giovanni Ziccardi. "The court held that the aim of the modified chips is
not to create infringing copies, but rather to fight Sony?s monopolistic
business practices and to allow consumers to exercise a fuller range of
their rights such as reading imported discs, back-up copies of games, and
other lawful but unauthorised discs," said Ziccardi, IP Justice Board
Member in Italy.

Verdict Bolzano Court in English (31.12.2003)
http://www.alcei.it/english/actions/psmodchip.htm

Press release by IP Justice - USA (12.01.2004)
http://ipjustice.org/media/release20040112_en.shtml


===================================================
4. FRENCH DRAFT LAW OBLIGES PROVIDERS TO MONITOR CONTENT
===================================================

On 8 January 2004 the second reading by the French National Assembly of
the draft law on Digital Economy (Loi sur la confiance dans l'economie
numerique or LEN) stirred up public controversy. The law aims at
transposing the E-Commerce Directive (2000/31/EC) and part of the
Directive on Privacy and Electronic Communications (2002/58/EC).

The National Assembly not only confirmed its willingness to allow for
private justice in France with the notice and take down procedure, but it
also adopted a general obligation on hosting providers to monitor the
content of their customers, a measure explicitly forbidden by the
E-Commerce Directive. In addition, access and hosting providers would have
the obligation to filter some contents upon judicial request, a measure
which obviously applies to content hosted on foreign websites. Another
amendment from the right-wing UDF party obliges internet providers to warn
against possible infringements of copyrights in all their advertisements
with the mandatory line: 'piracy harms artistic creation'.

Moreover, the National Assembly adopted a new definition of e-mail, which
is no longer qualified as "private correspondence". While this incredible
provision could be seen as the French effort to commemorate the 20th
anniversary of 1984, it is simply the result of a deal made by the French
government and the right-wing majority with the audio-visual industry.
With the new provisions they want to fight the exchange of music files and
P2P activities.

Civil liberties organisations, trade-unions, and associations of Internet
users have opposed the project since the beginning of the transposition
process in February 2003. They are all against what they call
"privatisation of justice", which would be the result of the introduction
of a notice and take down procedure in French legislation. Currently,
hosting providers can only be held liable for illegal content they host if
they don't comply with a judicial injunction to remove the content.

Many actions have already been undertaken by LEN opponents: EDRI-member
IRIS has launched a petition against this provision in the draft law,
together with the French Human Rights League, the G10-solidaires
association of trade-unions, and two non commercial providers which has
recently faced lawsuits (see EDRI-gram issue 23). The petition has been
signed by more than 8.000 individuals and 170 organisations. Other actions
have been undertaken by Odebi, an association of Internet users, and by
Reporters without Borders (RSF).

After the second reading, the campaign of civil liberties associations was
joined by the French ISP association (AFA). In a press conference held on
13 January under the header  "LEN: 10 millions of presumed guilty", they
announced their decision to simply stop hosting the whole set of services
(chats, web fora, personal web pages, ...), if the draft law is not
modified. While the French ISPs can accept the notice and take down
procedure, they completely refuse the general surveillance obligation, the
content filtering provision, and the new definition of e-mail. For the
first time ever, they have launched themselves a petition sent to all
their subscribers. In a single day, French ISPs have received 11,000
individual signatures.

The draft law must now undergo second reading by the French Senate,
scheduled for mid-February. After that, a commission should be set up to
approximate the text resulting from both Chambers. In case of final
disagreement, the National Assembly has the 'last word'. The parliamentary
opposition (left-wing) has already been called upon by IRIS and RSF to
submit the final text to the French Constitutional Council. In addition
IRIS has committed to file a case against the French government for
violation of the European legislation, in case the opposition fails.

IRIS comprehensive dossier on the LEN
http://www.iris.sgdg.org/actions/len/

IRIS petition
http://www.iris.sgdg.org/actions/len/petition.html

AFA, French ISP Association
http://www.afa-france.com

RSF press release (09.01.2004)
http://www.rsf.org/article.php3?id_article=9011 (French)
http://www.rsf.org/article.php3?id_article=9014 (English)

Odebi, Internet users association:
http://www.odebi.org

(Contribution by Meryem Marzouki, IRIS)


===================================================
5. BELGIAN CONSUMER GROUP SUES MUSIC INDUSTRY
===================================================

The Belgian consumer group Test Aankoop (in French: Test Achats) is
starting a court case against 4 leading companies in the music industry.
Test Aankoop, member of the European Consumer association BEUC, is suing
Sony, EMI, BMG and Universal Music at a Brussels court for using technical
protection measures on their music CDs that make it impossible for
consumers to make private copies.

Test Aankoop says it has received many complaints from consumers that the
music CD's they have bought can not be played on computers and that it is
impossible to make a private copy as allowed by the Belgian Copyright Act
of 1994. The consumer group has gathered hundreds of consumer testimonials
about specific music CD titles such as 'My tribute to the King' by Helmut
Lotty (EMI); 'Laundry Service' by Shakira (Sony); '1 Giant Leap' by
Faithless (BMG) and 'Greatest Hits' by Björk (Universal).

In the law suit Test Aankoop argues that consumers are granted the right
to make private copies under Belgian law and that the music industry is
compensated with a levy on blank recording media such as CD-R's. Test
Aankoop is asking the court in Brussels to order the music industry to
stop selling music CD's with technical protections.

Belgium has not yet implemented the EU Copyright Directive (2001/29/EC).
It is not clear yet how the draft implementation, currently discussed in
the Belgian Senate, will protect the right to make private copies.

In May 2003, 2 French consumer groups also started legal procedures
against several major record companies in order to fight copy protection
on CDs. EMI Music France was condemned for deception and ordered to print
the following warning on copy protected CD's: 'Attention, this CD cannot
be read by all players or car-radio's.' (see EDRI-gram issue 13, 16 July
2003).

Press release Test Aankoop in Dutch (01.01.2004)
http://www.test-aankoop.be/engine.asp?ref_id=5-1.1-1.1-1&press_id=293021

Press release in French (01.01.2004)
http://www.test-achats.be/engine.asp?ref_id=5-1.1-1.1-1&press_id=293031


===================================================
6. LAUNCH OF IRISH FREE SOFTWARE FOUNDATION
===================================================

On 5 January 2004 the Irish Free Software Organisation (IFSO) was
launched. Since June 2003, members of a European free software mailing
list have been collaborating on issues such as software patents, and the
European Copyright Directive. One of the founders, Ciaran O'Riordan,
comments: "With Ireland holding the presidency of the EU for the next six
months, political lobbying in Ireland will be of increased importance. The
fate of the software patentability directive is still undecided, and we
now also have the Intellectual Property Rights Enforcement Directive to
deal with. In the coming months, we also hope to work on spreading
education and adoption of Free Software in Ireland."

Irish Free Software Organisation
http://ifso.info/

Ciaran O'Riordan
http://www.compsoc.com/~coriordan/


===================================================
7. UK: 4 MILLION SURVEILLANCE CAMERAS
===================================================

With four million CCTV cameras watching the public, the UK now has the
highest level of surveillance in the world. The number of closed circuit
television (CCTV) cameras has quadrupled in the past three years, and
there is now one camera for every 14 people in the UK. According to an
article in the newspaper The Independent, residents of a city such as
London can each expect to be captured on CCTV cameras up to 300 times a
day.

The Information Commissioner Richard Thomas, appointed to supervise data
protection, responded on 13 January with an instruction to the operators
of the cameras to destroy images of people caught on film as soon as
possible.

The next day Thomas announced more measures to help organisations and
businesses interprete the Data Protection Act of 1998. These measures
include strengthening the Data Protection Helpline, developing more
practical and user friendly guidance for organisations and a renewed call
for responses to a consultation announced in the summer of 2003 on 'making
data protection simpler'.

The Information Commissioner explained: "Data protection law stands in the
way of a surveillance society where government and commercial bodies know
everything about everybody. It helps to prevent the growing problems of
identity theft and the buying and selling of personal information. The
data protection principles are largely matters of common sense and
fairness but data protection can never be a set of detailed Do's and
Don'ts.

Statement from the Information Commissioner (in MS Word, 12.01.2004)
http://www.informationcommissioner.gov.uk/cms/DocumentUploads/Data%20pro
tection%20-%20Helping%20organisations%20to%20get%20it%20right.doc

Big Brother Britain, 2004 (12.01.2004)
http://news.independent.co.uk/uk/this_britain/story.jsp?story=480364

Privacy International CCTV Dossier
http://www.privacyinternational.org/issues/cctv/index.html


===================================================
8. ROMANIAN JOURNALIST FIRED FOR INTERNET POSTING
===================================================

Ms Brindusa Armanca, a journalist from the Public Romanian Television, was
fired recently for an internet posting. She was accused of spreading
negative opinions about the public broadcaster via a discussion list on
the internet. The discussion list is FreeEx, a public online forum
dedicated to journalists hosted by Yahoo. The list is part of a  Freedom
of Expression Project Romania, an initiative started in 1999 to defend
freedom of speech in Romania, make government officials recognise the
journalist status and generally raise awareness on the importance of
freedom of speech and the frequent cases of its violation in Romania. In
2003 the program was financially supported by the Open Society Institute,
the Konrad Adenauer Foundation and the International Federation of
Journalists.

Ms Armanca announced she will appeal the decision in court.

Report in the Rumanian newspaper Evenimentul Zilei (14.01.2003)
http://www.evenimentulzilei.ro/investigatii/?news_id=142770

Freedom of Expression Project
http://www.freeex.org/en/index_en.html

(Contribution by Bogdan Manolea, Romanian legal expert)


===================================================
9. SCHENGEN INFORMATION SYSTEM GOES BIOMETRIC
===================================================

With the planned inclusion of two biometric identifiers into EU Member
States' passports and ID Cards as well as Visa to the EU, it was only a
question of time when the first plans to store these identifiers in an
EU-wide database would be announced. The announcement came shortly before
Christmas: Biometric data will, according to a Communication from the EU
Commission, be included in the data sets referring to persons in the
next-generation Schengen Information System. While the update of the
present Schengen Information System (SIS) was initially justified by this
system's inability to deal with the 25 Member States the EU will have
after the enlargement (SIS can only deal with up to 18 national
databases), new features have been added continuously to SIS-II, making it
the hub of future EU surveillance networks. The present SIS contains, in
practice, personal information mostly on non-EU citizens who have been
denied access to the EU. SIS-II, which is to become operational in two
year's time, will, according to the Commission, be 'integrated in the same
architecture' as the future Visa Information System (VIS). Europol, the EU
police force, will have access to both.

Communication from the European Commission to the Council and the European
Parliament: Development of the Schengen Information System II and possible
synergies with a future Visa Information System (VIS) (11.12.2003)
http://europa.eu.int/eur-lex/en/com/cnc/2003/com2003_0771en01.pdf

EU Commission general information on SIS II
http://europa.eu.int/scadplus/leg/en/lvb/l33183.htm

Statewatch: Biometrics - the EU takes another step down the road to 1984
http://www.statewatch.org/news/2003/sep/19eubiometric.htm

(Contribution by Andreas Dietl, EDRI EU affairs director)


===================================================
10. NORWAY: NO MORE COURT CASES FOR DVD-JON
===================================================

The case against DVD-Jon (Jon Johansen) finally ended on 5 January 2004,
when the Norwegian Economic Crime Unit (Okokrim) confirmed it would not
appeal the upholding of his acquittal on copyright charges to the Supreme
Court of Norway. DVD-Jon won the first trial on the 6th of January 2003.
The Norwegian Okokrim appealed but Jon also won the new trial on 22
December 2003.

The case started in 1999 when the Norwegian teenager reverse-engineered
DVD-technology and wrote DeCSS software, in order to build an independent
DVD player for the Linux operating system (See EDRI-gram nr. 23).

Second acquittal by the Borgarting Appellate Court in English (22.12.2003)
http://efn.no/DVD-dom-20031222-en.html


===================================================
11. FRENCH BIG BROTHER AWARDS 4 FEBRUARY
===================================================

For the fourth consecutive year, French civil liberty activists will
present the French Big Brother Awards during an Orwell Party in Paris on
Wednesday 4 February 2004. Since Privacy International presented the first
Big Brother Awards in 1998 to government agencies, private companies and
individuals who have excelled in the violation of  privacy, an
international tradition has begun. In 2003, the awards were presented in
14 different countries.

Besides the usual 4 categories of products, institutions, governments and
companies and the special prize for persons (for a lifetime achievement),
the French have added a special Orwell Europe prize to the contest list.
The public is invited to nominate candidates that have excelled in
violating privacy and generally increasing surveillance. The deadline for
nominations is Friday 16 January. In order for the jury to evaluate the
facts, nominations must contain solid facts and sources. The jury will
publish both the complete list and the selected nominations on 24 January.

Nominations for the French Big Brother Awards
http://candidats.bigbrotherawards.eu.org/

General information about the Big Brother Awards
http://www.bigbrotherawards.org/


===================================================
12. RECOMMENDED READING
===================================================

On 14 January 2004 the Dutch scientist Bert Jaap Koops, working for the
information law department of the University of Tilburg, released an
update of his extensive Crypto Law Survey, a unique collection of
worldwide resources about cryptography and the law. The new version
contains updates about the legal situation of cryptography in 6 European
countries:

- Belgium (current state of Program Act)
- Israel (new license stats)
- Italy (radio-amateur law)
- Lithuania (export and import controls, no domestic law)
- Netherlands (no TTP law)
- Spain (new Telecommunications Act)
- Switzerland (radio-traffic law)

Crypto Law Survey, version 22.0 (14.01.2004)
http://rechten.uvt.nl/koops/cryptolaw/

Koops' thesis on 'The Crypto Controversy' is now also available online
full-text in PDF.
The Crypto Controversy gives an overview of the crypto problems for
law-enforcement and their 'solutions'.
http://law.uvt.nl/koops/thesis/thesis.htm


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

30-31 January 2004, Stockholm, Sweden - WHOLES
A Multiple View of Individual Privacy in a Networked World
An international workshop to explore interdisciplinary approaches to privacy.
http://www.sics.se/privacy/wholes2004/

4 February 2004, Paris, France - Orwell Party
Presentation of the French Big Brother Awards, in the Centre culturel La
Clef, 21 rue de la Clef 75005 Paris.
http://bigbrotherawards.eu.org/2003/

9 February 2004 - Deadline Call for Papers
Selected papers are to be presented at the Center for Intellectual
Property 2004 Annual Symposium, titled Colleges, Code and Copyright: the
impact of digital networks and technological controls on copyright and the
dissemination of information in higher education on 10 and 11 June 2004 in
Adelphi, Maryland (USA)
http://www.umuc.edu/odell/cip/symposium/cpapers.html

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


==================================================================
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
active interest in developments in the EU accession countries and wants to
share knowledge and awareness through the EDRI-grams. All contributions,
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