Christian Engström, Pirat

24 oktober 2009

The Hadopi test for the Telecoms Package

Filed under: English,informationspolitik,Telecoms Package — Christian Engström @ 9:08
Hadopi in the details

Hadopi in the details

The European Parliament‘s delegation to the Telecoms Package conciliation process had a stormy meeting last Tuesday. It then adopted a text to serve as the basis for the continued negotiations with the Council of Ministers.

On Thursday, the Council replied by proposing a modified version of that text. I called their proposal ”An insult to the Parliament”.

The Parliament’s text tries to stop Member States from creating laws and institutions to shut people off en masse from the Internet, without even a proper trial before it happens. The goal is to stop things like the French Hadopi law, or similar laws that are currently being prepared in the UK.

The Council of Ministers wants to leave the door open for Member States to introduce such laws.

To understand how, it is necessary to compare the two texts quite carefully. If you just read them through quickly, they both sound pretty good on the surface, and more or less similar. But they aren’t.

I will go through the beginning of the text and point out what the various changes that the Council insisted on actually mean, and why the difference between the two versions is the difference between a yes or a no to Hadopi laws.

The Council’s proposal looks like this, compared to the Parliament’s text:

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 taken in exceptional circumstances and 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. In particular, any These measures may only be adopted as a result of a prior, shall respect the requirements of a fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and including the right to be heard of the person or persons concerned be fully respected. Furthermore, and the right to an effective and timely judicial review shall be guaranteed.

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 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.

Let’s go through a few of the changes, to see what their hidden meaning is.

We’ll start at the very first line:

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

The phrase ”by Member States” was not highlighted as a difference above, because it’s in both the Parliament and Council versions. But it was discussed in the delegation meeting, when it was suggested (I think by Lambrinidis, who is the good guy here) that the words should be taken out.

They weren’t, but if they had, that would have made the Parliment’s text a stronger protection against Hadopi laws.

– Why?

Well, without the ”by Member States” phrase, the first sentence would have said that measures by anybody should respect the fundamental rights. But with the insertion, the restriction only applies to the Member States themselves. Then 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.

Because of the added ”by Member States”, you can no longer argue that the sentence prohibits a practice where people formally are shut out from the internet by their ISP. The sentence becomes less Hadopi-proof.

The very same issue comes to the surface in the first change that the Council made, in the first line of the second paragraph:

Any of the above measures liable to restrict those fundamental rights…

Here, the Council inserted ”of the above” into the text. That means that whatever (good) guarantees for net users may be listed in the rest of the sentence, those guarantees only apply to actions taken by the Member States as such. Private companies are not bound by whatever the rest of that sentence talks about, thanks to the addition of ”of the above”.

Exaktly this point was discussed in the delegation meeting, where Lambrinidis suggested, and got the chairman to agree, to remove the word ”such” from exactly the same position where the Council later reinserted the ”of the above”. In this context the two phrases produce the same meaning.

The next difference comes a little later in the same sentence. Talking about measures to restrict people’s access to the net, it says that they

…may therefore only be taken in exceptional circumstances and imposed if…

First, there is the ”therefore” that the Council added. It weakens the wording a bit by suggesting that the rest of the sentence doesn’t really add anything new, so you could just as well ignore it. This weakens the text, but I’m not qualified enough to say by how little or how much. Professional lawyers would probably disagree with each other as well (depending on which side they happened to be representing 😉 ).

The big one in this segment is that the Council took out the bit about these measures only being applied in ”exceptional circumstances”. This was an amendment suggested by Lambrinidis and accepted by the delegation. I was really pleased when it got inserted into the text. It came as no surprise at all when the Council got rid of it again.

I believe that the phrase ”exceptional circumstances” would have been a very effective Hadopi killer. Of course the Council wouldn’t let it stand.

The whole purpose of an Hadopi system is to be able to shut off a large number of suspected file shares with as little legal fuss as possible. The system is specifically designed to handle the large number of cases necessary to make getting caught a real risk for ordinary people.

Nobody can claim that something that millions of people do on a daily basis constitutes ”exceptional circumstances”. But the Council’s lawyers spotted this right away, of course, and removed the phrase in their proposal.

Then it goes on like this with the rest of the differences. What may seem like pretty innocent changes on the surface, turns out to have vast legal implications when you look at them more closely.

I won’t go through the rest of the differences here, but I hope this demonstrates the principle. You have to think really carefully before you can feel sure that you know what each modification of the text really means. The devil is in the details.

The only thing you can be really sure of, is that there is a purpose behind each of the Council’s changes in the text, and that their lawyers know exactly what they are doing. But this is for the rest of us to figure out.

I’ll end with a disclaimer. The above is what I believe that the differences mean. But reading texts like these is a really tricky business. It is quite possible that I have gotten some things wrong, and even more likely that I have completely missed certain implications of the various wordings.

But that’s what comment fields and swarm work are for. Please feel free to post comments on the analysis.

…………

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27 kommentarer

  1. Just a quiet wonder.

    (I’ll end with a disclaimer. The above is what I believe that the differences mean. But reading texts like these is a really tricky business. It is quite possible that I have gotten some things wrong, and even more likely that I have completely missed certain implications of the various wordings.
    But that’s what comment fields and swarm work are for. Please feel free to post comments on the analysis.)

    Excellent work – Christian, whole processed needs to be more transparent and we need more international support.
    Information politics must be a standard, giving everybody (regular people) an opportunity to help.

    Perhaps it is the decision ”you” took to start writing in English … [or all of you who work for the Pirate Party of the European Parliament] that does make you mentioned on Torrent Freak.

    Good job. Keep the pot warm.

    Here you can read the article on TorrentFreak:- [http://torrentfreak.com/3-strikes-makes-european-comeback-tour-091023/].
    Christian Engstrom, the Pirate Party’s MEP, commented on the amendment in his blog. He included the differences in text that have been made since Tuesday (bold denotes added text, strike-through indicates removed) in a meeting between three negotiators for the European Parliament and representatives for the Council of Ministers.

    JL.2009.10.24

    Kommentar av Jan — 24 oktober 2009 @ 11:25

  2. Thanks for some insight in the work at EU.

    Kommentar av Slasher — 24 oktober 2009 @ 11:39

  3. goddamn ministerial council >_<, arent they supposed to represent us too???!?!?!?!!?

    RESPECT OUR GODDAMN RIGHT FOR ONCE INSTEAD OF PISSING DOWN OUR THROATS!

    Kommentar av Manen — 24 oktober 2009 @ 13:05

  4. *RIGHTS it shoulda’ve been there yes

    Kommentar av Manen — 24 oktober 2009 @ 13:05

  5. […] post: The Hadopi test for the Telecoms Package « Christian Engström … VN:F [1.6.3_896]please wait…Rating: 0.0/10 (0 votes cast)VN:F [1.6.3_896]Rating: 0 (from 0 […]

    Pingback av The Hadopi test for the Telecoms Package « Christian Engström … | Simple Automated Mess — 24 oktober 2009 @ 13:24

  6. The blogger HAX and also assistant to you in the parliament wrote recently (translated): To summarize it all: If we give the state the right to cut off people from the internet, then the freedom of speech itself, the free and open debate and the free spoken work be endangered.

    It is a correct conclusion. If we say that a court of law must rule prior to cutting off someones access to the internet, then we have given the state exactly that right.

    But if we instead leave things as they are and some ISP cuts off a customer after pressure from some entity, then the state will not do anything if the customer goes to another ISP. This gives all ISPs an incentive to not bend under pressure, it’s bad for business. But if a court of law has made the ruling, then the decision is backed up by the state and absolute, the customer cannot go anywhere. Consequences will naturally follow this. For a decision like this to be effective, all forms of anonymous access must be forbidden. We must criminalize open wireless networks and also introduce mandatory identification on public access. It will also become necessary to forbid anyone to let someone else use their access.

    It is a very dark world we open up for if we say that courts are allowed sentence people out from the internet (without putting them in prison). I really hope that at least some of commissioners are against the 138 of this very reason.

    Kommentar av Noclaw — 24 oktober 2009 @ 14:07

  7. Wow! This is really insane:

    X cannot rule Y, but X can rule Y on prior ruling by X.

    Reality check someone?

    Kommentar av PeterP — 24 oktober 2009 @ 14:42

  8. But why did they strike out ”ensuring inter alia that the principle of presumption of innocence…” ? Is that what it looks like to me, a free pass for member states to create laws that cut people off from the net on mere suspicion or allegation, without bothering to even check if the allegation makes sense?

    Kommentar av Lars — 24 oktober 2009 @ 14:55

  9. Must watch TV! – The clip the EU doesn’t want you to see

    On the day before the EU constitution was signed in Lisbon the resistance in Strasbourg demands a referendum across Europe.

    Kommentar av Alert — 24 oktober 2009 @ 15:15

  10. I agree with Noclaw that indirectly accepting the idea of cutting off someones internet connection as a form of penalty is bad. If there is such strong support for the right to internet access, wouldn’t it be possible to declare this in some other context where it makes more sense?

    If that path is not the one chosen, wouldn’t it be easier to simply declare that cutting of someones internet connection is a form of penalty (or virtual imprisonement), since that would – I suppose – make it so that the European Convention on human rights kicks in anyway to protect the right to due process etc.

    Anyway, I guess this is a matter of the fine balance between staying true to your principles and being pragmatic enough to get anything done.

    Kommentar av Tor — 24 oktober 2009 @ 15:36

  11. I hope you stay in that parliament forever. This is a very great (not to say historic) thing you’re doing. Please keep it up.

    One question: who are these ‘council’ nasties? They don’t seem to be elected. How did they get in there and more importantly, how do we get rid of them?

    Kommentar av Rick — 24 oktober 2009 @ 16:14

  12. […] Read this article: The Hadopi test for the Telecoms Package « Christian Engström … […]

    Pingback av The Hadopi test for the Telecoms Package « Christian Engström … — 24 oktober 2009 @ 16:14

  13. […] The Hadopi test for the Telecoms Package « Christian Engström, Pirate MEP a few seconds ago from web […]

    Pingback av Jérémie Zimmermann (jzim) 's status on Saturday, 24-Oct-09 15:41:25 UTC - Identi.ca — 24 oktober 2009 @ 16:41

  14. Great post. The endless stream of reformulations risk confusing us all (including other memebers of the parliament’s delegation…) Your post promotes a good litmus test — ”does it at least block the hadopi law?” — for dividing formulations into somewhat acceptable and entirely unacceptable.

    Kommentar av Tino — 24 oktober 2009 @ 17:29

  15. @Rick:

    The council consists of all the member state governments, and different ministers handle different issues. The telecoms package is handled by the infrastructure and communications ministers from each country, or whatever the national equivalents are. Ministers are (usually) not elected, but appointed directly or indirectly by national parliaments. To get rid of them you need to elect national parliaments that appoint someone else to that position.

    At least that’s how it works formally. Informally the non-political bureaucrats are probably running much of the show together with their favourite lobbyists.

    Kommentar av Lars — 24 oktober 2009 @ 17:45

  16. Hello !

    This text is on Digg at:

    http://digg.com/politics/The_Hadopi_test_for_the_Telecoms_Package_Christian_Engstrom

    Kommentar av Urban Sundström — 24 oktober 2009 @ 17:53

  17. Varför skriver alla svenskar på engelska. alla som kommenterat här kan svenska alla skriver på engelska.

    Visst detta är internationellt, så att bloggposten är på engelska är okej, men i kommentarspåret blir det lite löjligt.

    Kommentar av Alert — 24 oktober 2009 @ 18:02

  18. @Alert: För att när själva inlägget är på engelska så drar det antagligen till sig utrikiska läsare, och då är det ju bra om de förstår kommentarerna också. Det blir rörigt om man diskuterar i flera språk samtidigt. Vi har inga simultantolkar som parlamentet har, och Google Translate är inte riktigt en fullgod ersättare.

    Kommentar av Lars — 24 oktober 2009 @ 18:11

  19. This is not only about file sharing. It’s the basic freedom of expression. Everyone with a computer and access to the net can reach a billion people with their thoughts, ideas, comments and views.

    This is disconcerting for a political leadership used to manage a few media outlets. But they can’t shut down internet altogether. That would be too obvious. But they can attempt to redefine what’s internet is all about, and above all keep it out of the human rights domain.

    File sharing, political extremists, religious extremists, and other things will be used to motivate a speedy and expedient shut down process without legal interference. If we go there bloggers and podcasters had better watch out, and soon everybody else which uses the net to something more than watch tv.

    The German Enabling act of 1933 comes to mind.

    Kommentar av Johan Tjäder — 24 oktober 2009 @ 20:08

  20. http://www.udonews.com/videos/671/welcome-to-u-do-news

    Kommentar av Get paid for news — 25 oktober 2009 @ 14:39

  21. Thank you for your efforts on our behalf.

    The UK reps seemed determined to press ahead and blindly support any changes to get this package through.

    Harmonising markets around sustaining legacy voice services and networks, while enabling loopholes for Telecom operators to limit their commitment to upgrade to data transport fabrics capable of supporting mutiple services in an open and neutral way looks to be one unforeseen outcome of this new package.

    We are creating a Telecom prison of our own making. It deserves to be shot down as the law as written is more suited to a decade ago, when voice services did dominate. It’s not just about users rights but it’s about competiveness.

    It is clear that this telecoms package gives lip service to the thinking in i2010 or i2015.

    If you manage to get Parliament to reject this nonsense, then I would be happy to help re-write.

    Kommentar av Mike Kiely — 27 oktober 2009 @ 9:24

  22. Christian, from what I can judge, the council is pushing forward with aggressive, citizen-hostile wordings.

    Why aren’t you countering this by opening up opposite discussions within the Parliament, how to even more aggressively protect citizens fundamental rights?

    You should be able to keep Amendment 138 fairly brief and simple:

    ”The European Convention is ratified and applies for any judicial matters relating to the Telecoms package. Internet access is an integral part of society infrastructure and is a citizen right that may never be withheld from citizens any more so than other forms of infrastructure access, such as telephony access and road access.”

    Kommentar av Jakob — 27 oktober 2009 @ 12:36

  23. Jakob, ”aggressive, citizen-hostile wordings.”

    Hmm, please but that’s a subjective interpretation of the formulation, i.e. that’s how you read it.

    The more interesting statement though is the keeping it fairly brief and simple part.

    You do understand that any formulation has to be accepted by every country in the European Union, right? This would mean that any legislation can be adopted, more or less, with every countries current legislation. It can’t turn other, local, laws up side down. We see this with the copyright enforcement directive, IPRED. Either the competing laws need be amended, which of course the media mafiaa prefers in this case, or the directive has to be amended, which is better but not exactly golden. Point is, that the IPRED enforcement directive is formulated so that each country can mold it into their current legislation, more or less, and the telecom package shouldn’t be any different, since it actually has to, more or less, work with every EU country’s legislation.

    Kommentar av ST — 28 oktober 2009 @ 3:44

  24. dear ST ,
    I wish it were as you say, that EU legislation has to be sensitive to existing legislation i EU countries. However, the very aim of EU legislstion is to ”harmonise” EU legislation, disregarding as a rule existing legislations, that have to be abandoned to create the so called ”efficiency” that the EU political system aims at. The Lisbon Treaty’s abandoning of the national vetos aims at making it easier to run over unwilling countries.

    Another question is of course how to get any kind of specific legislation through the system, as in this case.

    Kommentar av anders erk — 29 oktober 2009 @ 23:32

  25. What I cant understand is why there is a dicussion. Say it your way or no way. What do the parlament loose if the Telecoms Package doesent go through?

    Kommentar av Magnus — 3 november 2009 @ 8:48

  26. […] dag är det alltså åter dags att ta telekompaketsdjävulen vid hornen. I morgon onsdag kommer nämligen med största sannolikhet den slutgiltiga skrivningen […]

    Pingback av Intensifier — Inför Internetdagarna — 3 november 2009 @ 9:08


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