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.
…………
Andra bloggar om: piratpartiet, eu, politik, informationspolitik, telekompaketet
Christian Engström, former Member of the European Parliament 2009-2014 for Piratpartiet, Sweden
Christian Engström, Pirat 
It is good that the entire parliamentary delegation is behind the text. That is a strong stance from the side of the parliament.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:03
How the heck did you pull that off?
I was under the distinct impression that the rest of the MEPs had started to wear off…
Well done! Top marks from here! Keep it up.
With the utmost and best regards,
Mollemanden
Kommentar av Mollemand van der Verbodenstrühm — 4 november 2009 @ 22:18
I must say that I am happy about this news. It feels like the first good news in quite some time now. Hope that the parliament will stand strong in the negotiation!
Kommentar av Mårten Palm — 4 november 2009 @ 22:18
due process sounds all right but judicial review – what exactly does it mean?
Kommentar av komigenuva — 4 november 2009 @ 22:19
”Judicial review” means that any decision made by a government authority or agency shall be possible to appeal to a court (or tribunal).
Kommentar av Johan Tjäder — 4 november 2009 @ 22:22
Why don’t you demand that Amendment 138 be respected? It was a majority decision – and the Council didn’t give anything in the conciliation process at all, so far. So why compromise? Why don’t you demand 138, 166 and CRA – maybe you get something.
After all – its a market.
Kommentar av komigenuva — 4 november 2009 @ 22:23
”A prior fair and impartial procedure including the right to be heard” does not imply a process in court before a shutdown, but it implies a proceeding including the right to be heard. That still means a HADOPI-like agency can shut you down, but they have to get your opinion first, and you have a right to appeal and to a timely judicial review. Timely is important because then they can’t hold you away for as long as they like.
”effective judicial protection” may be interpreted as right to publicly financed attorneys
I think this is really good. It’s probably as good as you’re going to get.
And once again, it’s very good that you are united. That way it makes it that much harder for the Council to refuse without explaining itself.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:29
@komigenuva
I, for one, was not particularly happy about this principle being introduced as proposed in amendment 138. It was set in a peculiar context, this is better now as it will be a separate Article 3a.
Also, according to the Swedish department of Enterprise, it also affected civil law contracts, which the member states wouldn’t allow. I for one should that be discussed, but that’s not the key issue here. That’s a fight we should take to the national parliaments.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:33
Johan Tjäder – then any individual is bound to lose! Who would START a battle in court with an ISP or a rightsholders company. That would be suicidal. If you lose you will have to pay court proceedings as well – huge sums, huge.
You have to stick to Amendment 138, and add 166 and CRA as well. This is a question of free speech. Amnesty says ”People have the right to seek and receive information and to express their peaceful beliefs online without fear or interference.” These rules – if implemented – will spread fear and timid people from expressing themselves freely and also from seeking information. Criminal offences should be dealt with in accordance with the penal law. Disconnection from the Internet as a punishment – furthermore without a court rule in a criminal case – is unlawful in my book.
Kommentar av komigenuva — 4 november 2009 @ 22:35
Do you want to agree to regulations that would exclude everone but millionaires from justice?
Kommentar av komigenuva — 4 november 2009 @ 22:39
Christian, I’ve been thinking back and forth quite a bit lately, and I think this issue is more important than it seems. If we allow anything through that is not HADOPI proof, then it will be an effective ban on all private use of encryption!
Why? Because in the future, most file sharing will be encrypted, for example by the use of OneSwarm, so if an ISP sees encrypted traffic through their cables, they will be pressured to assume it is file sharing, and give you a warning. After three such warnings you are kicked off the net. And this even if your encrypted traffic has nothing to do with file sharing at all, just your wish to keep your private conversations private.
The reason they will never accept a prior decision in a court is because it will be prohibitively expensive. Proving that some encrypted traffic is indeed sharing of files, will cost expertise and possibly forensic dissection of a computer, or handing over private encryption keys by court order (or face hard penalties). Such a machinery will never be cost effective, and would drag our judicial system to its knees, for petty crimes like file sharing. Politicians, as well as the film and music industry, will never accept that!
So, I really hope all goes well tonight. I have a bad feeling it will not.
Kommentar av Mats Henricson — 4 november 2009 @ 22:40
And please – make sure that they don’t touch hyperlinking of news and articles etc. Then it is really good night.
Kommentar av komigenuva — 4 november 2009 @ 22:41
And btw Johan Tjäder – where did government authority come from – are we speaking of an upfront dictature already?
Kommentar av Nemokrati — 4 november 2009 @ 22:44
sorry dictatorship is the proper word – I think – after all I am Swedish.
Kommentar av Nemokrati — 4 november 2009 @ 22:44
@komigenuva:
Actually, if operators were required to sue you in order to get rid of you, there would be many lost battles for no use. Most cases of terminated contracts today, I’m prepared to guess, is valid terminations.
That’s why there is a simplified debt collection process handled by an Enforcement agency (Kronofogden) which does not require court proceedings.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:47
@Nemokrati: I Sverige säger vi kort och gott myndighet, men det engelska språket har ju lite mer synonymer. ”Judicial review” betyder helt enkelt granskning av domstol.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:49
OK, to be more precise, it HAS to be a court of law, i.e. a place where you are innocent until proven guilty. So, if an ISP sees encrypted traffic in their cables, they can say ”We believe this is file sharing. What do you have to say to your defense”. In a court of law, you can say ”Well, my private traffic is my private traffic, why don’t you prove it is file sharing”, which they can’t. It is encrypted.
But, a ”fair and impartial procedure” sounds like ”Prove those encrypted bits aren’t file sharing, or we’ll kick you off the net”.
Kommentar av Mats Henricson — 4 november 2009 @ 22:49
@Mats Henricson:
I think that’s far reaching. Everything sent over HTTPS is encrypted, and VPN:s are encrypted. I guess it would be hard to make the case.
However, it’s interesting that in Great Britain they can require you to give up your private keys. I for once has forgotten a password or two in my life.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:52
@Mats Henricsson:
That’s not even true if you talk ordinary criminal law (which this is all about actually). You can be jailed without being proven guilty pending further investigation. That’s a decision made by courts.
However, in the end the prosecution must make its case, unless you are a world leading bit torrent service operator.
Kommentar av Johan Tjäder — 4 november 2009 @ 22:55
@Johan Tjäder
They don’t need to make the case, they just have to assume and give you a warning. The policy from ACTA will be: Encrypted traffic between private citizens is assumed to be file sharing. Are you willing to hand over private keys to prove your innocence?
Kommentar av Mats Henricson — 4 november 2009 @ 22:58
What does it mean to remove that last paragraph? I understand that it doesn’t really add anything (it just says that member states can give citizens _better_ protection than the minimum required, which should be obivous anyway), so removing it makes the text shorter and clearer. Is that all, or is there some other hidden meaning in that paragraph?
Kommentar av Lars — 4 november 2009 @ 23:06
Ok, Johan Tjäder judicial review means bestrida within 3 weeks etc – normal procedure. But what I oppose is the ISP:s right to disconnect someone from the Internet as a consequence – of what? It is definitely not normal procedure, why it would be a violation of free speech to do so. You do not disentitle someone from accessing the Internet for file-sharing, even if it is a legal offence or crime. If you commit a crime you are tried in a court of law under the penal law.
Kommentar av Nemokrati — 4 november 2009 @ 23:10
Also, Christian, thanks for writing blog posts like this one. It’s really great to get inside information from the EU legislation machine, virtually in real time, from you and HAX. Keep it up!
Kommentar av Lars — 4 november 2009 @ 23:10
But I mean there were more strange wordings in the proposals from the Council – I wrote about it, a quote can’t exactly remember – it was a catalogue of offences that could lead to disconnection, it was very strange, but I can’t find the quote, and I don’t really remember the words – the sum of it was that it opened up for disconnection for other reasons than file sharing.
Kommentar av Nemokrati — 4 november 2009 @ 23:30
Fight tonight – for net neutrality above all. God speed.
Kommentar av Nemokrati — 4 november 2009 @ 23:32
How would one fight botnets/DDOS attackers with this type of legal safeguards in place.
A internet ban is not the solution either, since the poor sucker with a hacked machine is not guilty of the DDOS attack.
Not taking sides, just pointing out issues to be thought about.
/Werner
Kommentar av Werner — 4 november 2009 @ 23:38
>How would one fight botnets/DDOS attackers with this type of legal safeguards in place.
By going after the induviduals responsible for the botnet and using the court of law to convict these individuals. There is nothing in this proposal that means that any one commiting crimes is protected. It simply means that you cannot be disconencted just because someone claims that you are commiting a copyright violation.
Kommentar av Henrik Holst — 4 november 2009 @ 23:57
[…] har EU parlamentets representanter kommit överens om en ny ordalydelsen på tillägg 138 enligt Christian Engströms blogg. Det ser bra ut i min mening och borde kunna få diskussionerna […]
Pingback av Anders S Lindbäck om kunskapssamhället · Avgörande i telekompaketet eller ej ? — 5 november 2009 @ 0:01
Henrik Holst,
so attacking zombie machines are left untouched for months until a court can decide to temporarily stop the DDOS attack?
What I am saying is that a *temporary* suspension might not be unreasonable in some, urgent, circumstances. Which also happens to be on the slippery slope.
/Werner
Kommentar av Werner — 5 november 2009 @ 0:28
[…] here to see the original: Telecom conciliation: Parliament's new proposal « Christian … By admin | category: av online | tags: amendment, express-their, hishtadlus, […]
Pingback av Telecom conciliation: Parliament's new proposal « Christian … AV hongkong 香港 — 5 november 2009 @ 0:32
[…] A reunião da delegação de 27 eurodeputados que participam no Comité de Conciliação entre o Parlamento Europeu e o Conselho da União Europeia com vista à aprovação definitiva do Pacote Telecom terminou há poucas horas e o resultado foi bem melhor do que se previa, a avaliar pelo que Chritian Engström do Partido Pirata da Suécia acaba de divulgar no seu blog. […]
Pingback av Eurodeputados não aceitam suspensão da Net sem decisão prévia de um tribunal | Remixtures — 5 november 2009 @ 0:38
According to ”Europaportalen” this is the final text from the negotiators:
http://www.europaportalen.se/index.php?newsID=46105&page=301&more=1&1stpage=1
”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-users’ access to or use of service 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 of persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convetion for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.”
The only difference from the parliament’s latest text is this:
”, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convetion for the Protection of Human Rights and Fundamental Freedoms”.
What does that mean, exactly? What cases could be considered to be so urgent that the conditions for limiting access can be relaxed? Would it have to be exceptional, or could it be systematic (e.g. if you are Sarkozy and want to shut out 50000 people from the internet really quickly) ?
Kommentar av Lars — 5 november 2009 @ 0:43
This is great news! 🙂
Kommentar av apisms — 5 november 2009 @ 0:47
Very Good !!!! The Parliament is the real popular voice!!! NO Hadopi, Yes Basic Rights of Person !!!
Thanks Christian !!!
Kommentar av Luke — 5 november 2009 @ 0:54
[…] según cuenta Christian Engstrom el eurodiputao del Partido Pirata en Telecom conciliation: Parliament’s new proposal, la cosa no ha salido tan […]
Pingback av Paquete de Telecomunicaciones, buenas noticias desde Europa : Blogografia — 5 november 2009 @ 1:01
@Werner: It’s my understanding that if ISP staff detects one or more computers on their network being engaged in a DDoS attack or similar, they are authorized to temporarily block the offending traffic (say, by rejecting packets destined for the target IP address, or packets selected by any other criteria that are unlikely to hamper legit traffic). In some cases, when one of their own customers appears to be spewing data in all possible directions, I imagine that they may have to block all traffic from that customer, but it’s still only a temporary measure pending further investigation and resolution.
The directive text under debate here is not about such emergency measures, but about administrative decisions concerning the subscription of the customer. As long as the customer can’t be shown to have deliberately participated in the DDoS attack, there are no grounds for terminating his subscription.
Exactly how an ISP is allowed to respond to an emergency situation may be further detailed in the contract with the customer. A corporate customer such as Microsoft or Ericsson may have deals with their respective network providers that go far beyond what is appropriate for residential broadband customers in terms of uninterrupted connectivity and liability for network failures. It’s impossible to regulate every potential situation in law itself; this is what we have private contracts for.
As for myself, I would want my ISP to disconnect my computer and notify me whenever they detect abusive network activity from my IP address, because if my computer is compromised and used for spamming or other malice, I risk losing a lot more friends by letting the abuse continue than by failing to send e-mail for a few days.
If you rent an apartment, your landlord cannot arbitrarily cut your water supply as a penalty for playing loud music at night, and there may even be regulations in place concerning your right to running water. However, if your dishwasher begins to leak while you are away and your neighbour below finds out, your landlord would be a fool if he didn’t dare turn off your main water supply because the regulations don’t explicitely consider and allow that action.
Problems arise when we begin to confuse technical safety measures with administrative decisions. ”Cutting off” means entirely different things in different contexts.
Kommentar av Anders Andersson — 5 november 2009 @ 1:03
Tack!
För första gången i mitt 37-åriga liv är jag stolt över min röst.
Kommentar av Rille — 5 november 2009 @ 1:04
Bra där! Jag kryssar Christian i nästa val med!
Var det kanske en viss infrastrukturminister som ville hem ikväll? De som kämpar för lobbyister kämpar aldrig lika hårt som de som kämpar för vad som är rätt. Förlägg nästa förhandling till sent på julafton så ska nog allt gå bra!
Kommentar av Mumfi — 5 november 2009 @ 1:23
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Pingback av Paquete de Telecomunicaciones, buenas noticias desde Europa « 1plisplas — 5 november 2009 @ 10:43
@Anders Andersson:
I agree.
It is perfectly possible to imagine that the network operators will implement automatical systems to block DDOS attacks and other nasty stuff. It may not need a human desicion. Such automatic preventive measures I think is still perfectly legal.
For example, the telephone exchanges are able to deny call setups if the system is overloaded. That is apparent in televoting operations, which are essentially a DDOS attack.
This is not termination of a contract, but a temporary denial of service, which I think will be a part of all kinds of Internet subscription terms in the future.
Kommentar av Johan Tjäder — 5 november 2009 @ 12:34
[…] según cuenta Christian Engström el eurodiputao del Partido Pirata en Telecom conciliation: Parliament’s new proposal, la cosa no ha salido tan […]
Pingback av Paquete de Telecomunicaciones, buenas noticias desde Europa « RSS2Blogs — 5 november 2009 @ 12:42
As a French end-user, I thank you for fighting for our rights. Great Job.
Kommentar av SmS — 5 november 2009 @ 14:09
I feel quite happy too with the parliament so far. Very good job.. =)
Kommentar av sweetpaseo — 6 november 2009 @ 10:40
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