Our own Ciarán contributed to this item: 5. Brussels demonstration against software patents
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EDRI-gram
biweekly newsletter about digital civil rights in Europe
Number 3.4, 24 February 2005
============================================================ Contents ============================================================
1. Italian GSM provider warns: too many wiretaps 2. Commission opposes framework decision on data retention 3. McLibel victory European Court of Human Rights 4. Update on WSIS PrepCom-2 5. Brussels demonstration against software patents 6. Controversy over EU Human Rights Agency 7. No extra regulation for Voice over IP 8. Recommended reading: software patents 9. Agenda 10. About
============================================================ 1. Italian GSM provider warns: too many wiretaps ============================================================
The Italian mobile operator TIM, one of the largest mobile phone companies in Italy has issued a unique warning that the number of wiretaps has reached the limit. In a fax sent to all Italian public prosecutors they say that they have already over-stretched their capacity from 5.000 to 7.000 simultaneously intercepted mobile phones. New requests now have to be processed on a 'first come first serve' basis, they write.
Even more unique in the current secretive environment of law enforcement, the Italian Minister of Justice Roberto Castelli (right-wing Lega Nord) has provided the newspaper Repubblica with statistics about the number of wiretaps and costs. The number of wiretaps has doubled every two years, he said, from 32.000 intercepts in 2001, to 45.000 in 2002, to 77.000 in 2003. He estimates the number of wiretaps in 2004 to be 100.000, costing the Justice department aprox 300.00 million euro in cost reimbursements. In 2003 the department of Justice spent 225 million euro on the intercepts, in 2002 230 million and in 2001 165 million.
Castelli admitted the number of police intercepts in Italy was very high. Currently Italy has aprox 58 million inhabitants. With 100.000 intercepts in 2004, Italy orders 172 judicial intercepts per 100.000 inhabitants. There is no information about wiretaps ordered by secret services in any country.
Castelli referred to the report of the German Max Planck Institute which already concluded Italy was the wiretapping champion of the (western) world with 76 intercepts per 100.000 inhabitants (44.000 wiretaps in 1996). The number two on the European wiretapping list in 1996, the Netherlands, refuses to provide any recent statistics. According to unofficial estimates the Netherlands intercepted 12.000 phones (fixed and mobile) in 2004. If those numbers are correct, the Netherlands have 75 intercepts per 100.000 inhabitants. In the United States, the most recent public statistics date from 2002. They mention 1.273 court ordered intercepts on a population of aprox 293 million, totalling 0,43 intercepts per 100.000 inhabitants. The UK Communication Commissioner mentions a total of 1.983 warrants for intercepts in 2003 on a population of 59,5 million, totalling 3,3 intercepts per 100.000 inhabitants.
One possible explanation for the explosion of the number of wiretaps in Italy is their short duration. An order is valid for 15 days and can only be extended with a new motivation from a magistrate. Only for investigations into organised crime an intercept can last 40 days. In many other countries, intercepts have a duration of 1 to 3 months.
Vodafone and Wind, two other major mobile phone companies, are also reaching their maximum wiretapping capacity, reports Repubblica. While Castelli used the occasion to warn against overuse of wiretapping in investigations, the Italian magistracy doesn't seem to agree. Edmondo Bruto Liberati, President the National Association of Magistrates (association of both judges and public prosecutors) stressed that wiretapping is much cheaper than individual covert surveillance. He complained about the vast under-financing the judicial apparatus is currently suffering from.
This public debate between the Minister and the magistracy points at a more fundamental division in Italian politics. By stressing the immense costs of wiretapping the Minister of Justice adds weight to his attempt to shift the costs to the Ministry of Internal Affairs. Generally the Minister pictures an image of a foolish magistracy that abundantly spends public money. This comes as no surprise to many Italians, given the tense relationship between Berlusconi and the magistracy.
MP Giovanni Russo Spena (left wing opposition, Rifondazione Comunista) has demanded an explanation from the government about the massive use of wiretapping in investigations and wishes to be informed how citizens are protected against this potential and actual invasion of their privacy rights.
Troppe intercettazioni / La Tim: 'Esaurite le linee' (19.02.2005) http://www.repubblica.it/2005/b/sezioni/cronaca/tim/tim/tim.html
Troppi cellulari intercettati. La Tim: 'Esaurite le linee'(20.02.2005) http://italy.indymedia.org/news/2005/02/734397.php
Rechtswirklichkeit und Effizienz der Überwachung der Telekommunikation [..], Max Planck Institute for Foreign and International Criminal Law, international statistics on page 104 (in German, June 2003) http://www.iuscrim.mpg.de/verlag/online/Band_115.pdf
Public statistics US legal intercepts (to 2002) http://www.uscourts.gov/wiretap.html
Public annual report UK legal intercepts (2003, published July 2004) http://www.official-documents.co.uk/document/deps/hc/hc883/883.pdf
(Thanks to Andrea Glorioso, Italian consultant on digital policies)
============================================================ 2. Commission opposes framework decision on data retention ============================================================
The European Commission has made it clear to all the Ministers of Justice and Home Affairs in the EU that there is no legal basis for a framework decision on mandatory data retention in the third pillar. The draft framework decision on data retention was introduced in April 2004 by the governments of France, the UK, Ireland and Sweden in an attempt to bypass the Commission, the European Parliament and even national parliaments. In the third pillar, the ministers may agree unanimously on a decision to harmonise legislation on police and justice matters, without any co-decision right for the European Parliament and a very limited margin for national parliaments to amend such a decision. In the proposal for data retention this margin is clearly defined. National parliaments may choose a different timeframe for the retention, but only if they review their decision annually and report to the Commission why they are still differing.
According to an update about developments in the JHA Council given to the Dutch Parliament, the Commission wants to initiate a proper first pillar legal initiative, with full co-decision rights for the European Parliament. In a letter from 15 February to the Lower House and the Senate the Dutch Minister of Justice Piet Hein Donner mentions this radical development as a matter of fact, but doesn't seem to draw any conclusions as to the legitimacy of the project.
Answering critical questions from MPs minister Donner provides an overview of current data retention legislation in the EU. Close reading shows there is not a single country in the EU with mandatory data retention for internet providers. Some countries do have framework legislation under which specific data retention decrees can be made, but in no country except for Italy has such a decree entered into force. In Italy telephony providers are obliged to store traffic data for a period of two years. In Ireland a secret decree was issued in 2002 demanding 3 year storage of traffic data. When the data protection commissioner found out about the decree in 2003, a national scandal broke out and the Department of Justice promised to organise a consultation and to introduce proper legislation. The consultation took place in the summer of 2004 but up to day the Irish Parliament has not been presented with a proper legal proposal.
In an earlier meeting from the EP Committee on Civil Liberties, Justice and Home Affairs (LIBE) a representative from the Commission already gave some support to the claim from the rapporteur, Alexander Alvaro, that the immense costs for the industry deserved a proper first pillar treatment (See EDRI-gram 3.3). No official statement from the Commission has surfaced yet. Behind closed doors the European Justice Commissioner Franco Frattini seems to prepare for a frontal collision with the JHA Council.
Letter to the Dutch Parliament (in Dutch, 14.02.2005) http://www.justitie.nl/pers/kamerstukken/include.asp?bestand=/extern/documen...
============================================================ 3. McLibel victory European Court of Human Rights ============================================================
An important ruling in the McLibel case, the European Court of Human Rights has defended "the public’s right to criticise massive corporations whose business practices can affect people’s lives, health and the environment."
The McLibel case dates back to 1990 when McDonald's decided to file a libel case against 2 English people that were handing out critical leaflets in front of a branch in London. Helen Steel and Dave Morris didn't write the leaflet themselves but became the centre of a libel case which lasted 313 days - the longest trial of any kind in English legal history. In 1994 they were ordered to pay 60.000 UK pound in damages each, because they were unable to prove every allegation in the leaflet. In appeal, in 1997 the sentence was lowered to 40.000 UK pound each. Despite the fact that many allegations were proven to be true, no sanctions were ordered against McDonald's.
Steel and Morris were both unemployed and had no intention nor means of paying the damages. McDonald's didn't enforce the payment, in silent admittance critics were right in claiming this was the worst corporate PR disaster ever.
Steel and Morris went to the European Court of Human Rights in Strasbourg claiming the English libel system seriously violated their freedom of speech. They did not get any legal assistance, and were forced to prove every allegation into minute detail. The Court found UK libel law breached the European Convention on Human Rights Article 6 (right to a fair trial) and Article 10 (right to freedom of expression). Steel and Morris are entitled to damages worth 35.000 euro, plus a reimbursement of the fees of their defendants.
The case is covered since 1996 on the website mcspotlight.org, with abundant critical information on past and current McDonald's business practices. A documentary about the McLibel case has been screened at many independent film festivals world wide. Currently Steel and Morris are trying to raise funds to release the documentary on DVD.
McSpotlight website http://www.mcspotlight.org/
Press release European Court of Human Rights (with links to the verdict, 15.02.2005) http://www.echr.coe.int/Eng/Press/2005/Feb/ChamberjudgmentStel&MorrisvUn...
Documentary: McLibel: Two Worlds Collide (52 mins, 1997) http://www.spannerfilms.net/?lid=161
============================================================ 4. Update on WSIS PrepCom-2 ============================================================
After two weeks of intense debate in Geneva tomorrow the second preparatory conference to the WSIS (World Summit on the Information Society) ends. The second and final World Summit will take place in Tunisia in November 2005.
The Human Rights caucus (a loose coalition of currently 59 human rights organisations) devoted its time in the first week to express concerns about the WSIS process and accreditation issues. They also organised a press conference and a panel debate. During the second week intensive discussions took place about the official documents (political chapeau and operational part, financing mechanisms report, internet governance report).
On 14 February all the civil society representatives were briefed by Congo, with the participation of Mr Geiger (Executive Director of WSIS and head of the executive secretariat) and Ambassador Karklins (President of the WSIS 2nd phase process). The HR caucus raised the sensitive issue of accreditation, both of member HRIC (see below) and of Tunisian independent civil society organisations that are not legally recognised. Both Mr Geiger and Mr Karklins seemed very supportive.
On 16 February the HR Caucus (represented by co-chair Rikke Frank Joergensen from EDRI-member Digital Rights Denmark) participated in a civil society press conference at the Palais des Nations. Joergensen argued that, while the HR caucus understands governance, financing and WSIS follow-up activities are indeed central issues in the second phase, human rights and social justice still are crucial and transverse concerns that should be raised, specially since civil society as a whole has strongly fought in order to have those included in the WSIS. The same day the caucus also participated in a press conference organised at the Swiss Press Club in Geneva. The conference was organised by caucus member Amnesty International (Swiss section) and by Communica-CH, the Swiss civil society co-ordinator. The title of the press conf was: "WSIS in Tunis: a Summit on information under repression?" It resulted in good press coverage.
On 17 February the HR caucus organised a successful 3 hours panel on 'Information society and Human Rights', with the participation of five members of the caucus (DIHR, IRIS, FIDH, HRIC, LTDH), plus an introduction from the Austrian ambassador (Walther Lichem) in his capacity of member of PDHRE (People's Decade for Human Rights Education). The panel was very well attended (120 to 150 persons), with representatives from governments (Canada at the ambassador level and Denmark, Swiss, France, etc. as well as Osamu Shiraishi, representing the OHCHR (Office of the High Commissioner for Human Rights).
On 18 February caucus member Human Rights in China (HRIC) called for support after having once more been denied accreditation to WSIS, following China's intervention. The HR Caucus decided to initiate a rapid petition calling for support. The petition currently has 30 signatures from a range of civil society organisations and will be send next week to Mr Geiger, to be added to HRIC accreditation file, as well as to Ambassador Karklins.
In general, members of the different human rights organisations engaged in fruitful networking with other caucuses to bridge the gap between the human rights agenda and more specific WSIS issues such as education, cultural diversity and privacy and security. The HR caucus has provided written contributions with comments about the political chapeau and about internet governance. PrepCom3 will be held in September 2005.
Website of the WSIS Human Rights Caucus (in English and French) http://www.iris.sgdg.org/actions/smsi/hr-wsis
Petition about the accreditation of HRIC (in English and French) http://www.iris.sgdg.org/actions/smsi/hr-wsis/petition-hric-en.html http://www.iris.sgdg.org/actions/smsi/hr-wsis/petition-hric-fr.html
(Contribution by Meryem Marzouki, co-chair of the WSIS Human Rights Caucus and EDRI member IRIS)
============================================================ 5. Brussels demonstration against software patents ============================================================
On the cold Thursday morning of 17 February, 250-300 people gathered on the square between the European Commission and the Council of the European Union in Brussels, Belgium for a demonstration against patents on software ideas. The demonstration was aimed to support the request made that same day from the European Parliament Conference of Presidents, i.e. the heads of the political groups, to the Commission for a restart of the procedure. Many turned up dressed as old-style prisoners, wearing badly fitting black and white striped clothes and signs such as "I am a software writer".
Bananas were handed out to everyone and were waved in the air as the group marched to hand letters (and bananas) to the Luxembourg presidency of the EU and the European Commission DG Internal Market. The bananas were a pun on a remark made early in January by a representative of the Luxembourg Presidency in a meeting with the Foundation for a Free Information Infrastructure (FFII): "This is not a Banana Republic". He meant the directive as adopted in May 2004 had to be adopted by a Council and procedures wouldn't be changed because of later differences in opinion in national parliaments. But according to the protesters, the two attempts to schedule the proposal as A-item at the inappropriate Council meetings of the Ministers of Agriculture and Fishery, even after it had become clear that there was no majority for the proposal anymore, surely indicated quite the opposite.
It is unclear how the Commission will respond to the request from the European Parliament to restart the procedure. According to an article in ZDNet, Council and Commission each wait for the other to make a decision. Possibly the item will be on the agenda of the Competitiveness Council on 7 March, but it is unlikely it will be presented as an A-item. In Spain, The Netherlands and Germany the national parliaments have adopted motions on 8, 10 and 17 February 2005 respectively, forbidding their ministers to agree with the current proposal. The Danish government already asked for a delay before, not giving in to alleged pressure from Microsoft threatening to withdraw their development branch Navision from Denmark, with 800 jobs.
Pictures of the demonstration (17.02.2005) http://media.ffii.org/bxl050217/ft/
Demonstration background information and news coverage http://mm.ffii.org/Demo050217En
Patent directive deadlocked (23.02.2005) http://news.zdnet.co.uk/business/legal/0,39020651,39189032,00.htm
Extortion should not decide Danish IT policy (15.02.2005) http://wiki.ffii.org/Adelskov050215En
(Thanks to Ciarán O'Riordan, Irish Free Software Organisation, www.ifso.ie)
============================================================ 6. Controversy over EU Human Rights Agency ============================================================
The plan from the European Commission to transform the Vienna Monitoring Centre on Racism and Xenophobia into an Agency for Fundamental Rights has met with strong criticism from the Council of Europe (46 member states).
The Financial Times quotes Terry Davis, secretary-general of the Strasbourg-based Council of Europe, "With all the best will in the world, I can't understand what it is going to do." Instead, Mr Davis proposes a merger between the Council of Europe (founded in 1949) and the Organisation for Security and Co-operation in Europe (created in the 1970s). Both organisations have a budget of around 180 million euro per year.
The Vienna-based OSCE, whose 55 members also include Canada, the US and central Asian states, gave the merger idea a cool response. FT quotes a senior official: "The OSCE is a security organisation with a comprehensive mandate, of which the human dimension is just one aspect. The Council of Europe is a legal norm-setter, while the OSCE is a political negotiating forum and a highly operational player with a strong field presence."
On 9 December 2004 European Digital Rights warmly welcomed the creation of the new agency in an answer to a public consultation about the agency. (See EDRI-gram 2.24). In a speech to the Bundestag in Berlin on 14 February 2005 EU Justice Commissioner Frattini said he was "encouraged by the strong support given by Member States as well as civil society to the idea to create this Agency, which should be operational by 2007."
'Too many of us in the human rights business', European leaders are told (07.02.2005, subscription only) http://news.ft.com/cms/s/9867300c-78ac-11d9-9961-00000e2511c8.html
EU Observer summary of FT article (07.02.2005) http://www.euobserver.com/?sid=22&aid=18347
Speech Frattini (14.02.2005) http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/05/93&...
EDRI-gram 2.24 'EDRI response on new EU human rights agency' (15.12.2004) http://www.edri.org/edrigram/number2.24/humanrights
============================================================ 7. No extra regulation for Voice over IP ============================================================
On 11 February the European Regulators Group (ERG) released a common statement against regulation of Voice over IP services. The statement from the 25 national regulatory authorities was welcomed by EU Commissioner Viviane Reding, responsible for Information Society and Media.
In a press release from the Commission she says: “I expect Voice over IP to lead to more diverse and innovative services in the market which may well have an even bigger impact on consumers and businesses than email. (...) I am convinced that, as the market develops, the European Commission and national regulators will jointly ensure that throughout the EU, the roll-out of new IP-based services will not be hindered by regulatory hurdles."
In June 2004 the Commission organised a consultation on VOIP. The main concern from the industry centres around the obligations of PATS, publicly available telephone services. Among the 86 public responses is a paper from ETNO (European Telecommunications Network Operators' Association), the powerful European lobbying group from the incumbent telephony operators. They hesitantly reject general telephony demands on Voice over IP services such as guaranteed access to emergency services, number portability and provision of location information, but on the other hand see a market advantage if a national regulatory authority would provide, "on request, a standardised declaration to those suppliers that undertake to provide publicly available telephone services in accordance with the applicable conditions in the general authorisation." ETNO also sees an advantage in a separate number plan: "when VoIP services are offered as a nation-wide nomadic service, a dedicated number range may be appropriate." The many footnotes in the document show how divided the operators are amongst themselves. Some companies such as the Dutch KPN clearly try to preserve their market position in the telephony world by claiming for extra regulation, while other companies such as Telekom Austria and British Telecom seem to favour a more practical approach towards internet telephony.
A different answer is provided by Skype, the provider of peer-to-peer software for VoIP services which also allows users to make calls to regular telephone numbers. "In Skype´s opinion a VoIP service that does not offer access to emergency services can not be defined as a publicly available telephony service (PATS)." Only 'traditional' operators should be burdened with any PATS obligations, Skype writes. "For example, if a law enforcement agency wishes to intercept a VoIP communication that is being transported across the PSTN, the PSTN provider, rather than the VoIP provider, should offer the means for intercepting the communication." When it comes to separate numbers, Skype clearly opposes: "Furthermore, the allocation of specific numbers could easily lead to the situation that calls to these specific VoIP numbers are more expensive then calls to the standard numbers."
Press release European Commission (11.02.2005) http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/05/167&fo...
Common Statement European Regulators (11.02.2005) http://erg.eu.int/doc/publications/erg12_press_release.pdf
Answers to Commission Consultation (June 2004) http://europa.eu.int/information_society/topics/ecomm/doc/useful_information...
============================================================ 8. Recommended reading: software patents ============================================================
The Swedish jurist Sandra Paulsson has published a 27 page report on the differences in approach between the US and the EU approach to software patents. She has written the briefing for the European Parliament as trainee at the Policy Department for Economic and Science (STOA).
Paulsson finds the differences between the patent systems in the US and Europe a lot smaller than most people think, and warns that the effects will probably be similar. "One of the aims with the directive is to "achieve the right balance between making patents available where appropriate in order to reward and encourage innovation, while avoiding stifling competition and open source development." Therefore it is important to see what the proposed directive would allow in practise. My findings are that neither the original proposal, the amendments by the European Parliament, nor the Council's changes actually fulfil the aim of making the balance so that innovations will be both promoted and protected. My conclusion would be that the directive would clarify for patent offices in Europe to adopt the same broad standard that exist in America today, the same standard that European stakeholders are so afraid of and claim to try to avoid."
Sandra R. Paulsson, Patenting Software vs. Free software (February 2005) http://www.ffii.org/~jmaebe/epecosci0502/SoftwarePatent.pdf
============================================================ 9. Agenda ============================================================
16 March 2005, London, UK, eCulture Workshop Workshop hosted by the UK's Sixth Framework Central Information Point (FP6UK) to network and refine proposals for EU funding opportunities under IST call 5. This programme addresses the strategic objective 'Access to and preservation of cultural and scientific resources'. http://fp6uk.ost.gov.uk/page.aspx?SP=1121
17-18 March 2005, Amsterdam, The Netherlands First European Creative Commons meeting http://www.creativecapital.nl
31 March 2005, deadline call for papers on DRM Special session on Digital Rights Management during the 31st Euromicro conference on Software Engineering and Advanced Applications (SEAA) 2005 in Porto, Portugal. This special session is open to discuss technical, legal and business issues with DRM and the social aspects regarding users understanding and fair use. Papers should be around 6-8 pages (not exceeding 6000 words) and include an abstract. http://www.idt.mdh.se/euromicro-2005/
6-8 April 2005, Belfast, Ireland, BILETA 2005 Over-Commoditised; Over-Centralised; Over-Observed: the New Digital Legal World? http://www.law.qub.ac.uk/bileta2005/callforpapers.html
12 April 2005, Deadline funding applications Civil rights organisations and initiatives are invited to send funding applications to the German foundation 'Bridge - Bürgerrechte in der digitalen Gesellschaft'. A total of 15.000 euro is available for applications that promote civil rights in the digitised society. http://www.stiftung-bridge.de
12-15 April 2005, Seattle, USA, CFP 2005 The program committee of the annual Computer, Freedom, Privacy Conference is accepting proposals for conference sessions and speakers for CFP2005. The conference will be held in the Westin Hotel in Seattle, Washington. http://www.cfp2005.org
14-16 Aprile 2005, Padova, Italy, FLOSS 2005 http://www.floss2005.org/
6-11 June 2005, Benevento (Naples), Italy Digital Communities 2005 http://www.ssc.msu.edu/~espace/DC2005.html
11-15 July 2005, Genova, Italy, OSS 2005 http://oss2005.case.unibz.it/index.html
28-31 July 2005, Den Bosch, The Netherlands What The Hack, major open air hacker / internet lifestyle event http://www.whatthehack.org/
8-9 September 2005, Brussels, Belgium EuroSOCAP Workshop on confidentiality and privacy in healthcare 3 year programme to develop new ethical standards for privacy and patient access to (electronical) files, started on 31 january 2003. http://www.eurosocap.org
============================================================ 10. About ============================================================
EDRI-gram is a biweekly newsletter about digital civil rights in Europe. Currently EDRI has 17 members from 11 European countries. European Digital Rights takes an active interest in developments in the EU accession countries and wants to share knowledge and awareness through the EDRI-grams. All contributions, suggestions for content or agenda-tips are most welcome.
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