Hur vi vann Telekompaketet och höll ”three strikes” borta

Direkt när jag tillträdde som EU-parlamenteriker 2009 var ”Telekompaketet” den stora informationspolitiska frågan. Eller mer specifikt: frågan om ”three strikes”, alltså om det var okay att stänga av hela familjen från internet om någon på den IP-adressen blev anklagad (inte dömd) för fildelning tre gånger.

Vi vann den striden, och EU-parlamentet beslutade att om någon ska stängas av från internet, då måste det åtminstone ha varit en riktig rättegång först. Det här gjorde bland annat den franska Hadopi-lagen helt tandlös, eftersom tanken bakom den var just att hota människor med avstängning utan rättegång om något stort film- eller skivbolag krävde det.

Vid flera andra tillfällen under mandatperioden har tanken om three strikes kommit igen. Men där har vi pirater och andra nätaktivister varit fortsatt framgångsrika i att hålla three strikes borta. Bland annat när vi lyckades stoppa ACTA-avtalet, som också innehöll den tanken.

Fem år är lång tid i politiken, så den här striden kanske inte alla har aktuell i minnet. Men det är viktigt att vi dels kommer ihåg att vi faktiskt har vunnit ett antal gånger, och dels minns hur vi gjorde det.

Spoiler: Framgångsreceptet varje gång har varit en kombination av engagerade medborgare som satte tryck utifrån på EU-parlamentet, och pirater inne i parlamentet som kunde förvandla det trycket till en konkret politisk seger.

Hax har skrivit en bloggpost där han går igenom turerna runt Telekompaketet 2009.

Läs mer hos Hax: Att hacka EU: Piratpartiet och EU’s telekompaket

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Update (for my own reference):

Amendment 138 turned into Article 1.3a of the Framework Directive 2002/21/EC, and this appears to be a consolidated version after the amendments in the Telecoms package 2009:

https://ec.europa.eu/digital-single-market/sites/digital-agenda/files/140framework_5.pdf

”Internet är redan trasigt”

Marcin de Kaminsky och Christopher Kullenberg, Juliagruppen

Juliagruppens Christopher Kullenberg och Marcin de Kaminsky skriver hos SvD idag under rubriken ”Internet är redan trasigt”:

Internet ska vara internet, och då krävs att det inte beskärs. Om Näringsdepartementet och kommande regeringar vill garantera detta är det av mycket stor vikt att man i samband med implementeringen av telekompaketet också tar ansvar för såväl internet som dess användare. Vill man ha ett helt och fungerande internet är det dags att ta tag i de problem som redan finns och hindra dem från att växa sig större. Internet är tyvärr redan trasigt.

Läs debattartikeln hos SvD.

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Tags: piratpartiet, eu, politik, informationspolitik

The Telecoms Package is ammunition to stop Hadopi

Final vote on the Telecoms Package

The Telecoms Package was formally adopted today by the European Parliament, with 510 votes for, 40 against and 24 abstentions.

As I said when I spoke in plenary yesterday, the compromise is not perfect, but it is a step in the right direction. In particular:

It declares that the French Hadopi law is not acceptable.

To see how, let us look at the adopted compromise text. I have analyzed it earlier in the blog post Landmarks in the Telecoms text, but here is the text again:

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.

(emphasis added)

The French Hadopi law does not fulfill these criteria, since it does not include the right to be heard of the person or persons concerned.

The right to be heard is a quite central part of the compromise text, and it was inserted for a reason. 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.

By insisting that any procedure to shut people of from the internet should include the right to be heard prior to any measures being taken, the EU sends a very strong signal to the member states that laws like Hadopi are not acceptable in Europe.

If the French government wants to persist with its Hadopi law, they will have to amend it so that anybody who is accused gets the right to be heard before he is shut off from the internet. Otherwise, it is not in compliance with the Telecoms Package that was adopted by the EU today.

But an EU directive only has effect if the member states follow it. It is now up to activists on the national level to make sure that the governments of their respective countries do.

The EU today provided activists in France, the UK, and all other member states with ammunition to stop three-strikes laws from being passed on the national level. This battle has now moved from Brussels to the capitals of the member states.

Let’s make sure we win there as well.

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Final debate on the Telecoms Package

Telecoms Package debate in Strasbourg

Today the European Parliament held the final debate on the Telecoms Package. It will be voted in plenary tomorrow (and will be adopted then).

I got to hold a speech for two minutes in the debate. This is what I said:

We in the Swedish Pirate Party support the compromise that was reached on the Telecoms Package.

It is not perfect, and it is not everything we wanted. But it is a good step in the right direction.

Nobody should be shut off from the internet, at least not without a prior fair and impartial procedure, that includes the right to be heard and respects the principle that you are innocent until proven guilty.

The compromise sends a strong signal to the member states that legislation like the French Hadopi law or the Mandelson measures in the UK are not acceptable. It is now up to activists in France, the UK and other member states to make sure that their governments respect this on the national level.

For us in the European Parliament, this was just the beginning.

We need a proper Bill of Rights for the Internet, that makes it absolutely clear that the Internet is an important part of society, where our fundamental civil liberties must be respected.

This includes the right to information freedom and the right to privacy, as specified in the European Convention of Fundamental Rights.

We need net neutrality, and we need a policy that says yes to the fantastic possibilities of the Internet and the new information technology.

Europe has a unique opportunity to show leadership and set an example in the world for a free and open Internet. This is a chance we should take.

The road ahead is open.

This compromise is on a first step, but it is a step in the right direction. I encourage all colleagues to support it.

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Telecoms Package quick FAQ

Quick questions and answers

Quick questions and answers about the Telecoms Package.

All the reasoning and references behind the answers are in ”Landmarks in the Telecoms text”.

– Was this a victory?
Yes. The text is not perfect, but it’s a good step in the right direction.

– Does it contain ”prior”?
Yes.

– Will it stop Hadopi in France?
Catherine Trautmann says so, and she negotiated the package and is a French Socialist. Their results in the 2010 elections depend on her being right. So she’d better be.

– Will it stop the proposed law in the UK?
Yes, that law will clearly not be allowed, since it breaches a lot of the restrictions.

– But it doesn’t mention ”court”?
Instead it describes how a proper court functions. Innocent until proven guilty, right to be heard, due process. A proper court, in other words.

Maybe it is better to describe how a court functions than to use the word, considering how popular it seems to be among governments to take a judge with a rubber stamp and call it a court. It seems to be necessary to spell it out to some governments.

You already had these rights! This adds nothing!
That’s absolutely right. We already have the right to a fair and public hearing by an independent and impartial tribunal established by law, through Article 6 in 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.

Is this enough?
No. One can debate endlessly exactly how strong (or not) the safeguards are for due process if users are to be shut off the internet, but no matter how strong they may be, this is not enough.

Myself, I wouldn’t a approve any law that allows cutting off internet users at all, period. The Internet is an important part of society, and all our fundamental rights must apply there without limitation, as they do in the rest of our lives.

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

– Are we ready now?
This was just one battle, we have many more fights to win. But now we have shown we can do it.

– Whats next?
We will take an initiative for a proper Bill of Rights for the Internet. We want the Internet to continue to be free, open and exciting. Like it has been until now.

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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 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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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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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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