ACTA demands three-strikes

ACTA - three strikes and you're out

Documents from the secret ACTA negotiations have been leaked and are available on Wikileaks (direct link the PDF).

Mikael Nilsson from the Swedish Pirate Party reports about the document (in Swedish). Mikael is a candidate for Swedish parliament in the upcoming 2010 election.

Here is a translation and slight adaptation of the most relevant parts of his post.

The document is a summary of the ”Internet Chapter” in ACTA, which is being drafted by the US negotiatiors. It confirms all our worst fears and then some.

The leaked document shows that the ACTA agreement contains very strong language about the Internet, in conflict with both national and European legislation, including the Telecoms Package text that was adopted in conciliation last week.

This is not acceptable. ACTA needs to be stopped. Now!

The most alarming provision openly states:

ACTA members have to provide for third-party liability.

This means that third parties, i.e.: the Internet Service Providers, must be held accountable for whatever is sent through their networks. This is clarified in the following way:

to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response).

So, in order to get the safe harbour protection ISPs have enjoyed until now, they have to implement policies to shut people off from the internet after two warnings. Three strikes and you’re out!

This is the opposite of how it is today, both in Sweden and in the EU in general, thanks to the provisions in the e-commerce directive protecting third party service providers.

If an internet provider does not implement three-strikes, they will be held accountable for what their customers do on the net. This would expose them to both enormous liability claims and prison sentences, as we have seen.

What will be the effect? The Internet Service Providers will have to start monitoring their own customers in the hunt for file sharers. Encrypted communication may be seen with suspicion, since the ISPs cannot guarantee that it is not used for file sharing.

There seems to be some disagreement among the Americans, however. This is described like this:

USTR indicated that these internal discussions were sensitive due to different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet ”freedom” on the other)

The sneer quotes around ”freedom” are part of the text.

Swedish net activist Oscar Swartz reminds us that under the new Lisbon Treaty, legislators in both the European and national parliaments may be presented with a fait accompli, in the form of a binding agreement that they cannot change.

ACTA must be stopped now.

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Ek vs. Torstensson

Liberal och långsint har en så underbar bild att jag kan inte låta bli att sprida den.

EU-parlamentariker Lena Ek (C) vs. infrastrukturminister Åsa Torstensson (C)

Hax förklarar bakgrunden.

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Telecoms Package conciliation – free pictures

Telecoms Package conciliation, pictures

Some pictures from the recently concluded Telecoms Package conciliation process between the European Parliament and the Council of Ministers.

All the pictures are free for puclication, cc0.

By Christian Engström, but you don’t have to mention that unless you feel like it.

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Landmarks in the Telecoms text

EP delegaton meeting

Article 1.3a in the Telecoms Package was the battlefield in the struggle between the European Parliament and the Council of Ministers.

The Parliament wanted the article to be as ”Hadopi proof” as possible. That means it should prevent Member States from introducing laws to shut people off from the Internet without even a decision by a court.

The Council resisted, but the Parliament won in the end. The text that was adopted as article 1.3a in Wednesday evening’s conciliation meeting is a good step in the direction of a free and open Internet.

I will go through the text of the article, to point out important features of the battlefield landscape. Here is the full text for reference, with certains words highlighed to act as landmarks:

Article 1.3a:

3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-user’s access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.

I will comment on the landmarks in the text in the order they appear.

1. Member States

The first paragraph essentially says:

3a. Measures taken by Member States regarding end-users’ access … shall respect the fundamental rights

Because of the phrase ”by Member States” in the beginning of the first paragraph, that paragraph only limits what the member states themselves can do. This weakens that paragraph, so that it no longer says that private companies, like for instance Internet Service Providers, have to respect the fundamental rights, like for instance the right to a proper trial or the right to information freedom.

This is unfortunate, but the parliament delegation was very aware of this problem. It was discussed quite a lot in the context of the second paragraph. It would obviously be no use if Member States that want to legislate to shut people off from the Internet could circumvent all the protections in the article simply by forcing the Internet Service Providers to do the dirty work for them.

2. these measures

The easiest and best solution would have been to simply remove the phrase ”by Member States” from the first paragraph, but this did not happen (because it was assumed that the Council would oppose that).

Instead, the second paragraph was amended in two ways, to close this loophole. First, the second paragraph starts with the rather clumsy wording

Any of these measures regarding end-user’s access to or use of services and applications through electronic communications networks…

instead of

Any of the above measures…

which the Council wanted. The purpose of the clumsier wording is to include measures taken by other parties than the Member States as such.

3. their implementation

As an extra safeguard, the words ”their implementation” were inserted a little later in the same sentence, to yield

…and their implementation shall be subject to adequate procedural safeguards…

This means that even if Member States wamt tp implement measures by forcing the ISPs to shut people off from the net, they cannot becaue of this clause.

4. presumption of innocence

The next sentence in the second paragraph starts with

Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence…

The presumption of innocence phrase is a quite central part of the Hadopi protection. Instead of being punished by being shut off from the net just because some big company came along with an accusation, users must be presumed innocent until they have been proven guilty.

Although the word ”court” is not used, the wording very strongly suggests that some sort of court should be involved.

5. right to privacy

…and the right to privacy.

To bring in the right to privacy in this context is perhaps somewhat surprising, but it is actually quite clever.

The corporations that are pressing for Hadopi style laws in various countries do this with a strategy in mind. They want to be able to set up procedures to send out threatening letters and demands for money to a large number of people, in a manner that is as convenient as possible (for them).

Since we may be talking about tens of thousands of letters per month to get the deterrent effect that they want (or the money they want to collect), they want to automate it.

But this of course means that they would be infringing people’s right to privacy. By explicitly saying that this is not allowed, this provides an extra safeguard for net users.

6. prior

A prior fair and impartial procedure…

This is the very core of the whole article. ”Prior”. The tiny little word that the Council of Ministers has spent six months trying to get rid of. But there it is, in what is now the final text. This is a victory.

It would, of course, have been better if it had said ”a prior ruling by an independent and impartial tribunal established by law”. That would have been a direct quote from Article 6 of the  European Convention on Human Rights, which all member states are already signatories to anyway.

But wishing is one thing. To get it, turned out to be another. A ”prior fair and impartial procedure” was as close as we got. And together with the other key phrases in the text, I think there is little difference in practice. It is just messier language.

7. guaranteed

…shall be guaranteed,

This was another bone of contention. The Council preferred the word ”respected”, which would have been weaker, but in the final text is says ”guaranteed”. Good.

8. right to be heard

including the right to be heard

This is an important requirement. It means that it is not enough to institute some special court that just rubber stamps summary judgments without giving the accused a chance to defend himself.

This is a big obstacle to the film and record companies that want such laws, and to the politicians that want to do their bidding.

9. urgency

The last landmark is a limitation on the guarantees that the article gives Internet users. It says that the guarantees only apply…

… subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms.

- Is this a potentially dangerous loophole? Will it allow record companies to claim that there is an urgency because they are not making as much money as the would like to, and that all the guarantees therefore have to be abandoned?

No. It is perfectly reasonable (and indeed quite necessary) to be pretty paranoid when trying to decipher texts like these, but this provision should be quite safe. This is because it is explicitly tied to the the  European Convention.

The only article in the Convention that provides an exception is Article 15, which deals with national emergencies like war or natural disasters:

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

Not even terrorism or other serious crimes qualify as grounds for using this provision, and most certainly not file sharing. This exception is harmless.

10. Conclusion

This is not a perfect text. It is not what I would have proposed if could write it myself, free from any political constraints. But it is good enough to be a step in the right direction.

The biggest problem with Article 1.3a is its limited scope. Proper judicial procedures is one thing. That should have gone without saying.

But we want all our rights respected on the Internet, just like in the rest of our lives. We want the freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers. We want  respect for our private and family life and our correspondence, in the electronic world as well as elsewhere.

We have a lot of battles to fight before we can say that we have secured a free and open net, where our civil liberties are respected.

But, now, I’m looking forward to those battles.

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Telecom package: Final agreed text

Philippe Lamberts (Green) and Christian Engström (Pirate)

The European Parliament and the Council of Ministers reached agreement on a text tonight. The conciliation process is now over. The acceptance of the text was unanimous by the parliament’s delegation, i.e.: including us Pirates and Greens.
This is the final text (compared to the parliament’s last proposal):

3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-user’s access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. and shall guarantee a A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. and tThe right to an effective and timely judicial review shall be guaranteed.

To be honest, I never thought this would happen. It is not everything that we would have wanted in the best of worlds, and this is not the end of the fight for a free and open internet. But it is a much bigger step in the right direction than I would have dared to hope for.

We would never have been able to achieve this without all the work that the community of net activists has put in. We have shown that ordinary citizens working together can make a difference. And this is only the beginning.

The internet community has begun to flex its muscles.

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Update: Further analysis of the text: Landmarks in the Telecoms text

Press release from the Pirate Party in English and in Swedish

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Telecom conciliation: Parliament’s new proposal

Reul, staff member from the secretariat, Trautmann and Vidal-Quadras

The meeting of the European Parliament’s delegation in the ongoing Telecoms Package conciliation produced the following text to be presented to the Council (compared to the Council’s last proposal):

3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these the above measures regarding end-user’s access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may therefore only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy and shall guarantee shall respect the requirements of a prior fair and impartial procedure including the right to be heard of the person or persons concerned and the right to an effective and timely judicial review.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish, inter alia, a requirement of a judicial decision authorising the measures to be taken.

I feel quite happy with the parliament so far. Every group supported the ”prior”, and wanted to get rid of the last paragraph. This is good.

The next step is that we will get to hear how the Council responds. We are far from ready, but right now it feels far more encouraging than I would have dared to expect.

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Lissabon är ett steg närmare superstaten, tyvärr

Staffan Danielsson (C) skriver om Lissabonfördraget idag på sin blogg, med anledning av att Hax har bloggat om EU som superstat.

Danielsson hävdar att jag skulle ha duckat att ta debatt med honom i augusti i år, vilket förvånar mig. Jag svarade honom redan dagen därpå på Politikerbloggen under rubriken Makten utövas bakom stängda dörrar.

Jag har försökt förklara varför Lissabonfördraget är ett stort steg på vägen mot EU som en (ännu mer) icke-demokratisk superstat i ett antal inlägg. De ligger i en egen kategori här på min blogg: Demokrati i EU.

Den som vill kan gå igenom den kategorin och följa den mycket livaktiga debatt som följde på Staffan Danielssons inlägg i augusti, där även Danielsson själv deltog.

Nu är Lissabon ett faktum, och vi får göra det bästa av den situation som råder. Men att EU måste bli mer öppet och demokratiskt står jag fast vid. Så som det ser ut idag kan det bara inte fortsätta.

Den som vill ha närliggande exempel kan ju titta på hur infrastrukturminister Åsa Torstensson (C) konsekvent vägrar att delta i debatten om telekompaketet, trots att hon just nu leder ministerrådets ansträngningar att avveckla rättssäkerheten och friheten på internet.

Jag är alldeles övertygad om att de allra flesta av Centerns medlemmar och sympatisörer skulle vilja se både mer öppenhet inom EU och mer demokratiska strukturer. Det är tråkigt att Centerns ledande företrädare i riksdag och regering inte kan svara upp mot det, vare sig i ord eller handling.

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Comments on the Telecom test balloon

Nope.

Thank you for all the very useful comments on the test balloon on the telecoms package that I published yesterday. I have found them very helpful, not least in identifying problems with the Council’s position, which was the basis of the test balloon text.

Executive summary: This would not fly.

This is, of course, not very surprising. There is, after all, an underlying substantial difference between what we want to achieve, and what the Council (apparently) wants.

We want the text to pass our Hadopi test, which would mean that citizens cannot be shut off from the net in an arbitrary way.

The Council (apparently) has the exact opposite Hadopi test. Reports suggest that this is not only because the UK government wants it, but also because the US government wants it as part of the ACTA negotiations.

If these reports are true, this is not a problem that can be solved by haggling over more or less subtle changes in the wording of the text. What is needed then is a proper up front discussion about the underlying political difference of opinion.

Whether the meetings this evening will provide opportunity for such a discussion remains to be seen.

The Concilliation Committee, with minister Torstensson and commissioner Reding, will hold a press conference in the European Parliament tomorrow Thursday at 09.00, to give their report of the evening’s meeting. It will be followed by press conference by The Pirate Party and the Green group Thursday morning at 10.00 in room PHS 0A50.

Press release from The Pirate Party in English (and in Swedish)

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Telecom test balloon 1.0

Test balloon

I am not a lawyer, but I of course want to play as constructive a role as possible in the ongoing haggling over the text of the Telecom Package. So here is an idea more or less from the top of my head, that I submit for comments.

Suppose that we take the text proposed by the Council, and add the words shown in bold here:

3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, such as the right to a prior ruling by an independent and impartial tribunal established by law.

Any of the above measures liable to restrict those fundamental rights or freedoms may therefore only be imposed if they are appropriate, proportionate and necessary within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and shall respect the requirements of a fair and impartial procedure including the right to be heard of the person or persons concerned and the right to an effective and timely judicial review.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish, inter alia, a requirement of a judicial decision authorising the measures to be taken.

The question I have is:

Would this text pass the Hadopi test? In other words, would it make it clear to Member States (such as, inter alia, the UK and France), that it is not acceptable to introduce legislation to shut people off from the internet without even giving them a proper trial by a proper court before they are punished?

If the answer to this question would be yes, it would appear to me that neither the Council nor anybody else can make the argument that the text thus amended would go outside the legal scope of the directive.

I cannot see how anybody could argue against the fact that the principle of trial before punishment is one of the general principles of Community Law, so adding this clarification to what the Council itself has proposed could not possibly be a legal problem. If the Council’s text is within the legal limits, so should this text be.

But again, I am not a lawyer, and amending legal texts like this is a really tricky business. I look forward to any comments.

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Council proposal for Telecom text

The Council of Ministers has now presented a formal proposal for a text to be inserted in Article 1(3)a, instead of the famous Amendment 138 to the Telecom Package.

The new text is very similar to the preliminary proposal that they presented informally on October 22, and which I then called ”an insult to the Parliament”.

Here is the new text, with additions (compared to the preliminary text) in bold, and deletions marked with overstrike:

3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of the above measures liable to restrict those fundamental rights or freedoms may therefore only be imposed if they are appropriate, proportionate and necessary within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, tThese measures may only be taken with due respect for the principle of presumption of innocence and shall respect the requirements of a fair and impartial procedure including the right to be heard of the person or persons concerned and the right to an effective and timely judicial review.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, inter alia, to establish, inter alia, a requirement of a judicial decision authorising the measures to be taken and to adopt urgent measures in order to assure national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences.

Although this is a slight improvement over the preliminary proposal from the Council, I still cannot see that it would pass the Hadopi test.

The word ”prior” is still conspicuously absent. If the text allows for people being shut off from the internet without even a prior ruling by a judicial authority, it is of little help to ordinary people if they have a more or less theoretical possibility of appealing the verdict after the punishment has already been meted out.

Now is the time for the European Parliament to stand up for the rights of citizens on the internet. I hope it will in Wednesday’s conciliation meeting. At least the Pirate Party will do everything we can to that effect.

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