Christian Engström, Pirat

6 november 2009

Landmarks in the Telecoms text

Filed under: English,informationspolitik,Telecoms Package — Christian Engström @ 0:58
IMG_2265

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 want to 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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36 kommentarer

  1. […] This post was mentioned on Twitter by Piratpartiet, Piratbloggar. Piratbloggar said: Christian Engström, Pirate MEP: Landmarks in the Telecoms text: EP delegaton meeting Article 1.3a in the Teleco.. http://tinyurl.com/yjw23ut […]

    Pingback av Tweets that mention Landmarks in the Telecoms text « Christian Engström, Pirate MEP -- Topsy.com — 6 november 2009 @ 1:20

  2. Ofcourse one would like to study the Councils corresponding analysis of the text… 😉

    Kommentar av Hans J — 6 november 2009 @ 1:26

  3. Regarding ”urgent”, Torstensson said spreading of child porn was a ”typical exception”. I wonder what more she believes falls under that clause, and whether she’s right or not.

    Kommentar av Mikael Nilsson — 6 november 2009 @ 5:51

  4. […] Landmarks in the Telecoms text « Christian Engström, Pirate MEP a few seconds ago from IdentiFox […]

    Pingback av marc0s (marc0s) 's status on Friday, 06-Nov-09 06:58:57 UTC - Identi.ca — 6 november 2009 @ 7:59

  5. @right to privacy
    ”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.”
    So wait, can this by any chance be interpreted as an IPRED-inhibitor? Because it sounds that way.

    Kommentar av Nicholas Miles — 6 november 2009 @ 8:11

  6. […] Landmarks in the Telecoms text « Christian Engström, Pirate MEP a few seconds ago from web […]

    Pingback av David Gómez (dvdgmz) 's status on Friday, 06-Nov-09 07:49:37 UTC - Identi.ca — 6 november 2009 @ 8:49

  7. […] A pesar de que en algunos medios se está afirmando que la Unión Europea está avalando con este texto los citados cortes de la conexión a Internet el eudoriputado del Partido Pirata Christian Engström dice que este texto, que aunque no es el texto que él habría escrito ni propuesto de haber tenido elección, le parece lo suficientemente bueno como para no dar la batalla por perdida y lo explica en Landmarks in the Telecoms text. […]

    Pingback av Noticia: ¿Avala la Unión Europea los cortes de conexión a Internet de sus ciudadanos sin decisión judicial previa? « Blog edt.diximedia.es — 6 november 2009 @ 10:32

  8. I needed to hear this. Thank you.

    Kommentar av David — 6 november 2009 @ 11:19

  9. […] llegir el que opina de la nova normativa l’eurodiputat del Partit Pirata Christian Engström al seu blog. Aquest no és un text perfecte. No és el que jo hagués proposat si l’hagués pogut […]

    Pingback av Elliot.cat — 6 november 2009 @ 11:44

  10. ”Measures taken by Member States” – couldn’t this be interpreted as ”Measures implemented at EU level are not subject to this amendment”? Because than HADOPI or similar law could be IMHO implemented as directive from Commission or as international treaty (ACTA) without conflict with this article.

    Kommentar av minio — 6 november 2009 @ 12:09

  11. @minio:

    As far as I know no law is actually _implemented_ at EU level.

    Kommentar av Lars — 6 november 2009 @ 12:50

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

    I wouldn’t approve any law that allows cutting off internet users and doesn’t specifically say that it would only be done with a court order (authorization of a jugde). I’m not alone, the Spanish Pirate Party released yesterday a press note dissociating themselves from the position of Engström on this law.

    Kommentar av Findeton — 6 november 2009 @ 13:15

  13. @Findeton:

    Myself, I wouldn’t a approve any law that allows cutting off internet users at all, period.

    But we won’t get everthing we want in a single battle, at least not right now. This is a first step in the right direction. But it’s a long way to go.

    Kommentar av Christian Engström — 6 november 2009 @ 13:33

  14. @Engström:

    I know that this law might stop some lobbies from being able to cut off internet in countries like UK and France, or at least in the way they wanted to do it. Is this the case of Sweden? Was it possible to cut off internet users in Sweden without this modification to the Telecom Package?

    I mean, it’s logical that we see this law as a bad thing as our national laws don’t allow to cut off internet users without a court order, so we think that’s the model that should be adopted in the UE. For us this is not a victory at all, but for other countries it might be (a phyrric one I think). Was Sweden in the case of Spain or in the case of France?

    Kommentar av Findeton — 6 november 2009 @ 13:54

  15. @Findeton:

    It says explicitly somewhere in the package (I think in the Harbour report, i.e.: the Universal Services Directive that he was rapporteur for) that it ”neither demands nor prohibits” that people be shut off from the net.

    Countries that don’t have laws for shutting poeple off don’t have to introduce any. And they most certainly shouldn’t.

    This fight must be carried out on the national level as well. It is up to activists in each indivitual country to make sure that their government doesn’t start doing silly things, whether they would be technically allowed to by the EU or not.

    At the same time, we will continue the fight on the EU level.

    Kommentar av Christian Engström — 6 november 2009 @ 14:14

  16. @Findenton

    I think it is also good (not perfect) but good for those countries where a court order is required. Now at least the court order to cut off will also have to include the right to be heard, privacy and, most importantly, that the judge proves that the accused is guilty.

    The widespread misunderstanding in Spain (my country) is that, because of little knowledge of what an EU directive can do, they think that this will automatically change the fact that in spain a court order is needed and that is not true. Like Christian said, this are the battles we need to fight at national level.

    Kommentar av Maria — 6 november 2009 @ 15:34

  17. @Findeton

    It doesn’t make the situation worse anywhere – it just sets up some minimum requirements. Btw. there’s a good Voltaire quote: ”the perfect is the enemy of the good”. Of course politicians shouldn’t forget their principles, but at the same time you need to get some work done too.

    Kommentar av Tor — 6 november 2009 @ 17:00

  18. @ Maria
    Your write: ”I think it is also good (not perfect) but good for those countries where a court order is required. Now at least the court order to cut off will also have to include the right to be heard, privacy and, most importantly, that the judge proves that the accused is guilty.”

    You have that already under the european convention on human rights. This amendment does not change anything.

    Kommentar av Gregor — 6 november 2009 @ 17:20

  19. ”good enough to be a step in the right direction”? C’mon! The Parliament failed to protect the citizens against restrictions of the Net access that would be initiated by corporations! Private ”three strikes”, contract-based, since the Harbour report authorize restrictions to access, limitations to net neutrality, etc… that’s not a loophole, it’s a rift!!! + a ”procedure” instead of a ”ruling by the judicial authorities” is rubbish!

    And you voted for this text? Giving the rapporteur Trautmann, who kept going backwards and please the Council, a total victory?

    Are you a ”pirate”? this is so disappointing

    Kommentar av Bobby Hiroon — 6 november 2009 @ 17:34

  20. @Gregor

    It is guaranteed for a trial by the ECHR but allows for fast track procedures such as Hadopi where these principles are not respected. The text limits severely the situations where the ”fast track” procedures can be applied, therefore it is an improvement.

    Furthermore, these principles that everyone seems to think apply universally in all procedures (right to be heard, pressumption of innocence) are traditionally only applied in criminal proceedings. The good thing here it is that they are also transposed to adminstrative ones. Privacy is particularly important here as a judge would have to allow breach of privacy, on request of the administrative authority, if it wants to prove a user did something wrong.

    In sum, of course these rights already exist and are a given in a judicial trial or procedure, the novelty is that now these will have to happen prior to the cutting off instead of having to wait months or years for a judical review.

    At least that’s how I read it.

    Kommentar av Maria — 6 november 2009 @ 17:45

  21. Findeton, ”Was it possible to cut off internet users in Sweden without this modification to the Telecom Package?”

    Actually yes, by the contract the consumers sign with the ISP. But the ISPs aren’t stupid in Sweden. Although the swedish consumer base is quite smallish compared to say Germany, France, or England, which impacts the behavior of any operator, it’s more about the competition. In a country with a population of about 9.3 million but with more then 7.3 million internet users, and ”too” many ISPs per capita, according to the bigger ISPs, lol, but it’s actually a fears competition, and that’s only through wire, fibre, and pesky phone lines. Added to that competition are all the 2G and 3G operators, and every company and organization that runs a free wireless connection (to the Internet.) For instance I live in socialist suburban hell, about 80 thousand odd residents in the whole municipality, but from my house I have three hardwired access points, fibre, cable, phone line, and satellite (what with satellite not being all that expensive no more, and you don’t have to use a retarded 90’s modem no more) and I actually own part of the fibre now (one of those meagre positive things of living in a socialist neighborhood where everyone gets together at times at actually buy something that is worth more than not for the whole ultra local community. Believe it or not but this is quite common in Sweden when it comes to the fibre wires) Via cable I got only one, due to bug ass monopoly, via the phone line(s) I got at least five to choose from (with a bit of an extra charge there’s a couple more), via the fibre I got three, or four (seems to depend on when they need to sign more), to choose from for no extra charge (for an added administrative fee I got several more to choose from, this because there’s several city wide back bones to connect our little socialist neighborhood owned fibre network to, to other back-bone available ISPs.) In this kind of environment you do not want to loose customers just because some pesky pyramid organization says so, no matter what the fine prints of the consumer contract says. Imagine how the ISPs will act with the telecom package at place, when consumers are supposed to have the right to switch from one ISP to next in a day, with out hassle. Even today even the biggest swedish ISPs are worried over stuff like a mediocre ”blog quake” if it’s negatively directed at them (this seems to be why they actually fight against the copyright mafiaa.) And that’s only ‘cause of fears competition in a liberal democratic capitalistic reality, i.e. when the market sorts itself out as a protector of the fundamental rights of every one. This is also what the telecom package is all about, to force the market to do the right thing, by enforcing the markets own rules.

    Kommentar av ST — 6 november 2009 @ 23:41

  22. Gregor wrote (#18):

    You have that already under the european convention on human rights. This amendment does not change anything.

    You’re absolutely right. We already have these rights through the European Convention on Human Rights. But unfortunately, some governments need to be reminded that our civil liberties are something they have to actually respect, and not just talk about.

    This was just a first step. What we need is a proper Internet Bill of Rights. It’s not very difficult to write one. It’s mostly a question of pointing out to goverments who need it , that our traditional civil liberties apply to the internet and the information age as well.

    Kommentar av Christian Engström — 7 november 2009 @ 0:21

  23. Christian Engström,

    I think the correct interpretation is more in the likes of the EU parliament limiting the scope of how member countries should interpret the convention, without actually asserting any ”force” upon the legislative power of EU. This seems to be crap all to most people, but they never imagine what it would be like without an oppositional force, that balance everything (in the political sphere.) Most people don’t think there is a need for an opposition to question the need for checks and balances, they just readily assumes everything work, according to their notion of reality, of how everything actually works, in a democratic society. Personally I don’t think it’s too much to ask for that people, at least, know the point of why the democratic process, and if they don’t they deserve all the spanking they get until they actually understand the point (at which time the one that did the spanking better run for the hills :-()

    Kommentar av ST — 7 november 2009 @ 2:35

  24. I think we have got the best possible solution thanks to Christian, his staff, the other MEPs who have fought for this, og not least the laquadrature.net people. Why do I say this? Let’s set that the parliament’s legal service indeed was right: EU cannot impose on the Member States a ”prior ruling by the judicial authorities” in this case. If that was true, I am convinced that France would implement the Hadopi-law and would have been ready to take EU to court to defend their right to throw people of the net administratively. In that case, the original 138 would have been worthless. Therefore, to adopt the original 138 would have been really risky. I know that laquadrature.net has cast serious doubt on the opinion of the legal service. I, being not an EU law expert, must admit that I cannot see through what will hold in the ECJ court system. If I were a MEP, I would have played safe, not risking to invalidate 138. From that point of view, you couldn’t have done better, Christian.

    Kommentar av Flemming Bjerke — 7 november 2009 @ 8:23

  25. Once again I think this is a good outcome. Those of you who thought this could be fought in the EU alone are seriously mistaken. The pirate movement needs to monitor the national implementation of this directive to ensure the safeguards are adhered to. Preferably this should be done from inside the national parliaments, and I hope this has shown the importance of the pirate movement and its political offspring – the Pirate party.

    And, Christian, this was only the first battle. What’s next?

    Kommentar av Johan Tjäder — 7 november 2009 @ 9:11

  26. I have become 34 years old, and this is the first time I have ever felt I was met with real respect from someone I have voted for in a political election. This post is magnificent. It wouldn’t even matter if you were right or not – at least you explain your thinking in a way that seems honest.

    I will hesitate a while longer before I dare to start using the words ”honest” and ”politician” in the same sentence, but at least I am extremely satisfied, for me and for my children, that I voted for you.

    Keep up the good work!

    Kommentar av jonas — 7 november 2009 @ 12:52

  27. Yes, without this text ISPs could have been pressured to cut off customers, but then they could just go to another ISP. That has been our protection. But now people can be scented to be without internet access. Ask your self, how can a ruling like that be effective? When a court has decided something like that, it has to be effective. It is the fucking state power we are dealing with now.

    I guess anyone can se what is logically coming now. You can no longer expect it to be OK to have an open wireless access point, it would be to obstruct justice if someone scented to cut off uses it. It must also be illegal to borrow your connected computer to such a person, and for the state to be able to follow such things up if it happens, everyone needs to identify them self at access and click OK to not let anyone use their computer or access.

    Kommentar av Börje F. — 8 november 2009 @ 4:08

  28. Yes, without this text ISPs could have been pressured to cut off customers, but then they could just go to another ISP. That has been our protection. But now people can be scented to be without internet access. Ask your self, how can a ruling like that be effective? When a court has decided something like that, it has to be effective. It is the fucking state power we are dealing with now.

    I guess anyone can se what is logically coming now. You can no longer expect it to be OK to have an open wireless access point, it would be to obstruct justice if someone scented to cut off uses it. It must also be illegal to borrow your connected computer to such a person, and for the state to be able to follow such things up if it happens, everyone needs to identify them self at access and click OK to not let anyone use their computer or access.

    Kommentar av Börje Fr. — 8 november 2009 @ 4:10

  29. Thank you for your excellent work down there Christian!

    Kommentar av thank you — 9 november 2009 @ 22:02

  30. […] Engström julkaisi yksityiskohtaisemman analyysin neuvottelun vaiheista. Lyhyesti sanottuna Euroopan parlamentti halusi takeet, etteivät jäsenmaat […]

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  31. […] I am planning to ask a written question on ACTA to the Commission, and ask if they intend to respect what was agreed in the  Telecoms Package. […]

    Pingback av Question on ACTA and the Telecoms Package « Christian Engström, Pirate MEP — 15 november 2009 @ 12:52

  32. […] texto consensuado, como se puede leer aquí, decía lo […]

    Pingback av El País miente, directamente « …y tan pocas balas. — 25 november 2009 @ 18:22

  33. […] Christian Engström(Pirate/Green) oli melko tyytyväinen tekstistä, hänellä on myös hyvä läpikäynti omalla sivuilla. […]

    Pingback av Nyt eteenpäin « Magnus Blusi — 13 februari 2010 @ 22:41

  34. […] pictures from the recently concluded Telecoms Package conciliation process between the European Parliament and the Council of […]

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  35. […] llegir el que opina de la nova normativa l’eurodiputat del Partit Pirata Christian Engström al seu blog. Aquest no és un text perfecte. No és el que jo hagués proposat si l’hagués pogut […]

    Pingback av Aprovat el Paquet Telecom | Nervi.cat — 14 juni 2012 @ 16:36

  36. […] Podeu llegir el que opina de la nova normativa l’eurodiputat del Partit Pirata Christian Engström al seu blog. […]

    Pingback av Aprovat el Paquet Telecom | Elliot.cat – idees i altres cabòries — 26 maj 2015 @ 15:35


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