Net Neutrality - Week May 13 - May 21, 2013

Net Neutrality

In her response dated 8 May, Neelie Kroes seems non-committal regarding the policy direction she will take in the upcoming recommendations. The extreme vagueness of the language may be an indication of heated internal discussions in the European Commission. 

The Federal Communications Commission’s high-profile attempt to defend its net neutrality rules against a court challenge got major support on Monday from the Supreme Court, which ruled in a separate case that regulatory agencies should usually be granted deference in interpreting their own jurisdictions. 

At the time, most network neutrality supporters described Genachowski’s as a step in the right direction. But some warned that the FCC’s legal arguments, if accepted by the courts, could be bad for network neutrality in the long run. They could open the door to future FCC regulations—for example, to combat online gambling, pornography, or piracy—that could actually undermine Internet freedom.

 Ms. Crawford, with a smile on her face, says the outlook is grim. “We are in this position as a country because we assumed that the magic of the marketplace would provide competition and provide world-class communications,” she said. “But history has demonstrated that left to their own devices, companies will gouge the rich, leave out the poor, cherry-pick markets and focus solely on their profits. It isn’t evil, it’s just the way things work.” 

The ongoing litigation – now pursued by a single company – only serves to reduce that certainty and predictability. I applaud T-Mobile’s decision to withdraw from this litigation.

Basically, they’re saying if you want to do video, you have to ask permission. That’s a broken system. It goes against what makes the internet good and useful: the fact that you can innovate without permission. A mobile carrier — one who may see video chat apps as competition, for example — being able to act as a gatekeeper to block the usefulness of such apps is a dangerous situation for those who believe in promoting innovation. We shouldn’t stand for an internet where one company gets to pick what you’re allowed to do. 

Until three weeks ago, activists struggled to explain the abstract concept of net neutrality to the public. With unexpected support from the major ex-state ISP, the concept is now known to more people than ever. (…) Although the EU commission has acknowledges its importance, it has failed to adequately regulate it. If the EU doesn’t do it, it is time for individual Member States to enshrine net neutrality into law.

Hanging over the debate about the possible ESPN deal is Verizon’s legal challenge to the FCC’s net neutrality rules. The company claims that the FCC overstepped its legal authority with the regulations. Many observers expect that the D.C. Circuit Court of Appeals will side with Verizon and strike down at least portions of the rules. Tom Wheeler, President Obama’s nominee for FCC chairman, will likely face decisions of whether to keep fighting for the regulations and how broad they should be.

Single Market for Telecoms

But imagine a Europe where operators can provide digital services across the whole EU, wherever they are based. Where telecoms users can enjoy those same services, wherever they live or work. Offering a boost for the whole Internet ecosystem – from operators to equipment makers to app designers. And for the whole economy besides. Because we need companies to smash barriers, think European, and compete globally: even against the American giants. We will soon be coming forward with proposals on a Single Market for telecoms. This is a major priority for the rest of my mandate. Barriers to the digital Single Market are barriers to growth. I’m determined to knock them down wherever I find them. In fact, I’m the same age as Alex Ferguson. But I have no intention of retiring until I’ve completed this task. 

Telecom

The availability and speed of fixed broadband internet access is subject to much greater variation. This is partially because of variability in the speed provided by current generation broadband, and partially because the deployment of superfast broadband is still underway, especially in more rural areas 

(…) does the Commission consider that a change in administration of the government of a Member State constitutes a ground for the removal of the head of a national regulatory authority under the EU Telecoms Framework Directive?

Belgian mobile phone operator Mobistar said on Wednesday that it would stop offering fixed line services until the regulator puts into place a more favourable environment for accessing competitors’ networks.

BEREC

Agenda:

11. Net Neutrality – Oral update

13. Stakeholder dialogue – Oral update 

FICORA will make an oral update on the status of the preparation of the stakeholder dialogue in September.

14. BEREC Medium Term Strategy

15. Amended Decision on the BEREC EWG’s for 2013

20. Information by the Commission

Oral up-date on Commission initiatives not mentioned previously.

21.2. Information by BNetzA on the NGA workshop (5 June 2013, Athens)

Internet Governance - WTPF / WSIS

Opinions one to four were endorsed without any changes, five and six with almost no changes. A seventh opinion proposed by Brazil on the role of governments in internet governance was discussed but not agreed upon consensually.

Throughout the meeting, the Internet Society participated in dialogue that focused on several key areas, including the significant role of Internet exchange points as a means of enhancing Internet connectivity, the need for timely deployment of IPv6, and the importance of the multi-stakeholder model of Internet governance. 

Brazil’s revised draft Opinion didn’t reach anywhere near consensus during the discussions, although there was broad agreement that the issues were important. Instead, a summary of the discussion will be included in the Report of Working Group 3 Chair. The Chair has suggested that a summary on where Brazil’s draft stands, including the feedback of the WG3 participants, be sent to the ITU Council Working Group on international Internet-related public policy issues (CWG-Internet). CWG-Internet may then forward it to the ITU Council, which in turn may decide how to proceed with it within the ITU framework.

There was a slightly surreal discussion whether it was necessary to exclude stakeholder participation in irrelevant forums by specifically adding mention of their attendance at relevant forums. This was prompted by Turkey’s proposal to include the word “relevant” in Opinion 2: Fostering an enabling environment for the greater growth and development of broadband connectivity

If multi-stakeholderism is to survive as a concept that is useful in guiding our thinking about Internet governance, then it needs to be understood as a legitimizing principle that is strictly at odds with state sovereignty-based conceptions of legitimacy. Under a true multi-stakeholder system, states can have roles in Internet governance insofar as other stakeholders welcome those roles. But they cannot unilaterally declare authority, or collectively assert it without the consent of the rest of the Internet. Unfortunately, the meaning of multi-stakeholders in Internet governance is likely to remain a point of contention beyond this week’s talks in Geneva. 

In a 413-0 vote, members passed H.R. 1580, which once again signals the support of Congress for the continued development of the Internet without guidance from any single government or a collection of governments.

The nature of the “multi-stakeholder” model and the future role of the ITU are the most controversial issues for WTPF, especially as the Russian Federation – which will bring another of the larger delegations to Geneva – has decided to revive its call for a stronger grip of national governments on internet governance. (For ITU member states’ written contributions, see here)

Other

German state-level lawmakers agree that consumers should have the right to return mobile apps. But changing the law may do little to help consumers if companies don’t do their bit. 

Data Protection - Week May 13 - May 21, 2013

EU Data Protection Reform

Overall running costs for an office of about 30 staff were just under €1.6 million last year. Mr Hawkes said he was satisfied “as of now” with the additional resources allocated to it that it could do the job assigned to it. But it was crucial that the Government had promised it would be given more resources if, as he expected, more companies chose to come under his office’s jurisdiction under the so-called “one-stop shop” arrangement under the new EU law.

The Conference of the European Data Protection Authorities gathered in Lisbon in the Spring Conference: Calls on the European States, on the Council of Europe and on the European Union to seize the opportunity of reviewing the data protection legal framework to strive to strengthen the rights of the individuals and to guarantee an effective protection of their privacy in a highly technological and globalised world;

“I can see a shift towards more of the protection, under quotation marks, of business interests and not the protection of citizen’s fundamental rights,” Greek socialist MEP Dimitrios Droutsas told reporters in Brussels on Wednesday (15 May). The amendments driving the rift among the parties include those that weaken the definition of consent, allow profiling, remove a person’s control of his personal data, entitle businesses to use data if they believe it is in their ‘best interest’ to do so, and exclude pseudonymous data from protection.  

The Open Rights Group (ORG) called for new EU data protection laws, currently being worked on by EU law makers, to require consent to anonymised data sharing. The ORG made the recommendation after it raised concerns with the practice of anonymisation.

Information Commissioner Christopher Graham: “[This] report is the latest contribution from the ICO to this debate. We’d urge the European Commission to take on board what it says, and to refocus on the importance of developing legislation that delivers real protections for consumers without damaging business or hobbling regulators.” The data watchdog’s chief also urged British companies to continue to lobby the EU. “Businesses and other stakeholders need to constructively engage with the debate about burdens and the importance of privacy rights, while the process can still be influenced,” he said.

In the digital world, being “forgotten” is becoming increasingly difficult to achieve. The question may be asked as to whether people want to be completely forgotten. With the dramatic increase in users on social media sites, the evidence may suggest that individuals are less and less concerned about being totally forgotten and in fact seem to want to leave their mark, digitally or otherwise.

The take-home from the first day of the conference was that data protection laws are here to stay and global businesses may ignore them at their peril.  In the end, the laws of countries other than the EU and U.S. may pose the greatest challenges to businesses.  More than 90 countries were reported to have adopted data protections laws and the number continues to increase.  Companies are faced with somehow harmonizing these laws into coherent and workable data protection compliance programs.  To make matters worse, these international laws in many cases appear to combine the most demanding aspects of both the EU and U.S. approaches–stringent requirements and vigorous enforcement.

The new EU data protection rules should be effective and clear but also flexible enough to allow companies to innovate and consumers to benefit from new services, underlined ETNO, ECTA, GSMA and Cable Europe today on the occasion of a joint industry event hosted by MEP Seán Kelly, and with the participation of European Commission Vice-President Viviane Reding.

Other

(…)  Mr Shatter is facing an immediate demand to respond to the Data Protection Commissioner Billy Hawkes after Mr Wallace complained that he breached data protection laws.

On 20 May, the social network announced the appointment of Yvonne Cunnane as Lead Data Protection and Privacy Counsel, who will join firm’s team in Dublin, in an attempt to promote Facebook Ireland’s (FB-I) role and obligations as information controller in the European Union.

Insufficient attention has been devoted to resolving transatlantic misunderstandings over the status of privacy and data protection as a human right. For example, why do the EU and U.S. agencies negotiating data privacy matters not establish an ongoing initiative to help them better understand the basic constitutional concepts on which each other’s systems of privacy rights are based? All this suggests that the EU and the U.S. will have to invest much more effort to increase mutual understanding of their differing systems for the protection of constitutional rights if there is to be a transatlantic accommodation on data privacy.

  1. State of play of revision Data Protection package
  2. Discussion on draft opinion on legitimate interest
  3. Discussion on draft opinion on Open Data Directive
  4. Discussion on draft opinion on Advanced Passenger Information (API)

Corporations and governments are turning the internet into a colossal, always-on surveillance tool. Once passive objects are able to report what’s happening, where is the power balance?

On 15 May, Russia reinforced its commitment to the protection of personal data by ratifying the ‘Convention for the protection of individuals with regard to Automatic Processing of Personal Data’ (Convention 108), the Council of Europe announced.

Latest changes include:

  • Updates to Norway and Poland to reflect implementation of local cookie consent law
  • Updates to Denmark to reflect updated guidance issued by the national regulator
  • Other minor clarifications

Security & Surveillance - Week May 13 - May 21, 2013

EU Cyber Security Strategy

We hope the EU strategy will enable a step-change in how we ensure cyber security. It is based around three main elements: 

1. Drastically reducing cybercrime, (…);

2. Enhancing our cyber security resilience and response capabilities. This will require new legislation on companies reporting cyber-attacks.

One of the main features of this legislative proposal by Vice-President Kroes is an obligation on authorities that receive notifications of cyber incidents, to report to law enforcement incidents that are suspected to be of a serious criminal nature.

We expect this obligation – if and when adopted – to have a strong impact on one of the biggest hurdles in the fight against cybercrime: the current level of illegal activity that is simply not reported to the police.

3. Supporting the use of Internet as a freedom tool and building cyber security capacities around the world. An EU cyber defence component will also be developed.

Data Retention

The Commission has released some interesting documents concerning the evaluation of the data retention directive in 2009-2011.

On 18 April 2013 the Commission, taking as its basis Directive 2006/24/EC on data retention, decided to set up a data retention experts’ group (C(2013)2144).

Other

To prevent fear, hype and incident-driven policies and practices, knowledge, transparency and accountability are needed. Let us not make ‘cyber’ into something completely different, alien or spacy. But rather, let us focus on integrating technological developments in a way that allows us to preserve core (constitutional) principles, democratic oversight, and digital freedoms as essentials in our open societies.

Proposed new rules on electronic identification (e-ID) schemes and electronic trust services would not be able to sufficiently secure the security of individuals’ identity, according to an MEP.

The particular problem on which the Queen’s Speech focuses is that public IP addresses are often shared, so an IP address does not necessarily identify a single end user device.  The public IP address can denote the gateway of a domestic household or of a large organisation, a point within a public network or even the gateway of an entire public network (often mobile).

The European Union could soon consider a proposal that would give law enforcement the ability to engage in “offensive hacking,” i.e., compromise private infrastructure and systems to gather information via spyware, delete data or even take servers offline completely when there is probable cause to suspect cybercriminal activity.

Some simple analysis using newly released tools shows us that privacy addressing is now extremely common being by far the most typical type of IPv6 address configuration in use on the network.

Copyright - Week May 13 - May 21, 2013

France: Mission Lescure

This report can also put an end to the ‘three strikes’ system where illegal downloaders could be fined or even blocked after three warnings. The report suggests to replace this system with a system of automated fines. The report suggests a new levy to protect France culture in the digital age. A levy is recommended for smartphones, tablets, e-readers, televisions and game consoles. Also a tax on iTunes and YouTube is one of the possibilities. The Lescure report stated that some players in the digital world take profit from audiovisual works, but do not contribute to the financing. Therefore a levy is needed.

Other

Content producers often lament over how the Internet has undermined copyright. Yet others question whether content owners are manufacturing a crisis that no longer exists. LSE’s Hélène de Chalambert reflects on the debate, and suggests that successful content owners are innovating and moving beyond narrow views of copyright infringement.

Business Europe, which appears to have a lot of non-European companies as members (interesting, that), has written a ridiculous letter with little basis in fact, arguing that this treaty for the blind would be “casting aside” the “international copyright infrastructure.” 

In a recent judgment, following the preliminary Infopaq-rulings of the European Court of Justice, the Danish Supreme Court ruled that extracts of newspaper articles comprising no more than 11 words can be works protected by copyright.

Yesterday, the District Court of Amsterdam ruled that the Dutch bank ING is not obliged to hand over personal data of one of its account holders. The Court issued this judgment after a request from the Dutch anti-piracy agency BREIN. In this case, BREIN aimed to force the ING to provide account information of the domain name holder of ‘FTD World’. BREIN disagrees with the Court’s findings and it has announced to file appeal against the judgment.

In its communication of 18 December 2012(2), the Commission has set out its strategy for the next two years in order to ensure an effective digital single market in the area of copyright with a view to a decision in 2014 whether to table legislative reform proposals. Although Directive 96/9/EC is not specifically mentioned in the Commission’s Communication of 18 December 2012, the Commission does not exclude that this directive could be part of that review of the EU copyright legislative framework. 

Embedded YouTube videos don’t infringe copyright under current German law, but they could violate European rules, the German Federal Court of Justice said on Thursday. The court said that it has referred a case about YouTube embeds to the Court of Justice of the European Union (CJEU) in Luxembourg for an opinion, and has not reached a final ruling, said court spokeswoman Dietlind Weinland. Now, the CJEU has to give its opinion on whether website operators can be penalized for copyright infringement if they embed copyright material that has been made publicly available on other websites, Weinland said.How long the CJEU will take to reach a decision is impossible to say, but at the moment the court typically takes a year to a year-and-a-half to respond to cases, he added.

This week, the German government published their new German online copyright law, through which publishers will gain the exclusive right to the commercial use of their publications on the Internet, in the Federal Law Gazette (Bundesgesetzblatt). The law will go into effect on August 1st. 

We’ve discussed GEMA’s antagonistic attitude towards, well, pretty much everyone other than itself. In addition to turning the German YouTube experience into a farcical collection of “Sorry” faces and demanding fees for music it doesn’t even control, GEMA has also been in the news due to its rollout of a “streamlined” fee structure that threatens the existence Germany’s underground club scene with unsustainable licensing rates. 

The other thing is that in contrast to the two groups representing photographers, there is not a single advocate for the somewhat more populous general public. Of course, that’s absolutely par for the course: the public is routinely overlooked whenever it comes to asking “stakeholders” what they think about proposed changes to copyright.

Global exports of creative goods and services reached a record US$ 624 billion in 2011, according to the latest figures from the United Nations Conference on Trade and Development (UNCTAD). Such creative goods include arts and crafts, books, graphic and interior design works, fashion, films, music, new media, printed and visual media, as well as audiovisuals.

Swedish prosecutors have launched a new attempt to close down the popular file-sharing site The Pirate Bay, asking a court to block internet addresses used to access the site.

Trade - Week May 13 - May 21, 2013

EU-US Free Trade Agreement (TTIP)

The EU is about to set the parameters for trade negotiations with the US and the EBU, an association of over 50 public broadcasters, says that the TV industry should be removed from the partnership talks. As well as harming the finances of the industry, including TV in the trade talks would damage cultural diversity within Europe, it said.

On 22 May, the European Parliament will vote in plenary on a resolution on the proposed EU-US trade agreement, the “Trans-Atlantic Free Trade Agreement” (TAFTA), also know as “Transatlantic Trade and Investment Partnership” (TTIP).

Special treatment of culture “makes sense,” European Commission president Jose Manuel Barroso has said in relation to upcoming EU-US trade talks. Speaking at the European Business Summit in Brussels on Thursday (16 May), he noted that “cultural diversity” has a special mention in the EU treaties, allowing member states to treat related products - such as books, films and music - differently to other items in the internal market.

Dear Ministers, in short, protecting and promoting cultural diversity in the up-coming trade negotiation with the US means respecting three clear red-lines:

  1. The existing EU policies and instruments and corresponding measures at Member States’ level shall not be touched on during negotiations;
  2. The existing national measures to regulate the audiovisual sector and support domestic and European content shall not be touched on during negotiations;
  3. We shall maintain our ability to continue adapting and developing meaningful policies for cultural diversity, both at EU and Member States’ level. 

Today BUSINESSEUROPE, EUROCHAMBERS, the European Services Forum, the European Association of Craft, Small and Medium-Sized Enterprises, the Transatlantic Business Council, the Transatlantic Policy Network, the American Chamber of Commerce to the EU, AmChams in Europe and the US Chamber of Commerce launched the Business Alliance for a Transatlantic Trade and Investment Partnership (TTIP).

Mr Daniel Caspary, European People’s Party (EPP) coordinator International Trade Committee, said this morning that looking at draft negotiation texts does not make any sense. Looking at texts is essential. Next week the European Parliament will debate and vote on a resolution on the trade agreement. Will the parliament follow the EPP, and only ask for fake transparency? Or will the parliament adopt a meaningful amendment on transparency? It will be an essential vote.

“Reform is in the air,” Hugenholtz said. “If we lock in now, we will regret it, because we cannot easily roll back.” Schaake said that in a way the copyright system in the digital age in fact is broken and therefore reform is necessary. The lack of transparency, Joe McNamee, executive director, European Digital Rights (EDRi), was a tool to kill ACTA and certainly could be used against the TTIP in the same way. McNamee said he is looking forward to seeing DG Trade living up to promises of more consultation and transparency.

Will the Commission say:
1. Has it adopted an agenda for trade negotiations with the US that also covers the audiovisual sector?
2. Does it share the concerns and sensitivities of audiovisual operators?
3. Will it undertake not to include the audiovisual sector in the free trade talks with the US?
4. Can Member States continue to support these areas through quotas and subsidies in order to continue to protect their own cultural diversity and promote local productions?

Trans Pacific Partnership (TPP)

As negotiators are seeking to finish up the Trans Pacific Partnership (TPP) agreement as soon as possible (they had originally promised a done deal by October), it appears that the controversial “intellectual property” chapter is causing the most problems, according to Sean Flynn, who is at the current negotiating round in Lima. 

Other

“The European Commission has today taken a decision in principle to open an ex officio anti-dumping and an anti-subsidy investigation concerning imports of mobile telecommunications networks and their essential elements from China. This decision will not be activated for the time being to allow for negotiations towards an amicable solution with the Chinese authorities. I will revert to the College of Commissioners in due course.”

Varia - Week May 13 - May 21, 2013

European Commission - European Parliament Elections 2014 - 2019

The 2014 European Parliament elections should be held from 22 to 25 May, instead of 5-8 June, according to a draft decision endorsed by the full House on Tuesday. Bringing the elections forward would give the new Parliament more time to prepare for the election of the European Commission President in July 2014. 

EU leaders Wednesday will likely agree that each country should continue to have one EU commissioner beyond 2014, the deadline written into the Lisbon Treaty.

EU Ombudsman

European Parliament President Schulz Monday announced six candidates for EU ombudsman to replace Nikiforos Diamandouros. They are Alex Brenninkmeijer, Markus Jaeger, Dutch centre-right deputy Ria Oomen-Ruijten, Emily O’Reilly, German socialist deputy Dagmar Roth-Behrendt and Italian nationalist EFD deputy Francesco Speroni. The successful candidate will be announced in July’s plenary session.

Dalligate

German MEP Inge Gräßle has called on the commission to “shed light” on the circumstances surrounding the resignation of former EU health commissioner John Dalli.

Net Neutrality - Week May 6 - May 13, 2013

Net Neutrality

(…) the strive for permissionless innovation, the ability of others to create new things on top of the communications constructs that we create. Most new applications in the Internet are the results of grass-roots innovation, start-ups, and research labs. No permit had to be applied, no new network had to be built, and no commercial negotiation with other parties was needed when Facebook started, for instance. The easier we make the creation of these innovations, free of coordination and permission-asking, the faster the new Facebooks, Amazons, and Youtubes appear.

In Germany, the announcement has provoked scrutiny. The country’s telecom regulator, the Bundesnetzagentur, said it would review the new tariff structure for potential violations of network neutrality principles, which generally hold that the government and Internet service providers should not discriminate or charge differently, based on the customer or the type of content. The German economics minister, Philipp Rösler, said his agency would scrutinize the legality of Deutsche Telekom’s plans. So did the German consumer protection minister, Ilse Aigner. “The massive restrictions planned by the leading provider of Internet in Germany would not only significantly affect consumers but especially freelancers and the self-employed, who would be thrown back to the 1990s in terms of Internet speeds,” said Oliver Grün, the president of Bundesverband IT Mittelstand, which represents 800 small and midsize businesses.

News broke today that ESPN is in negotiations with at least one major wireless carrier to pay to exempt ESPN content from data caps.  This type of structure, where content providers who pay get better access to customers, is exactly what net neutrality is designed to prevent.

  1. Report: ESPN May Pay to Exempt its Content from Wireless Data Caps (Ars Technica - May 10, 2013)
  2. ESPN’s Plan to Kill Net Neutrality (Salon - May 13, 2013)

Arguing against the net-neutrality rules is Thomas W. Hazlett, professor of law and economics at George Mason University in Fairfax County, Va., where he directs the Information Economy Project. Dr. Hazlett previously served as chief economist of the Federal Communications Commission. Taking a stance in favor of the net-neutrality rules is Gigi Sohn, president and chief executive of Public Knowledge, an open-Internet advocacy group based in Washington, D.C.

The changes are more worrying because the convergance of content delivery and ISPs is happening at different levels of the industry, not just at BT. Sky has bought Telefonica’s broadband business for instance. TalkTalk has Plus TV. Here are a few problems that changes may present.
2. The choice in investment between IP-based delivery of cable-like TV and improving Internet services in general might become more confused. If BT find they make most money from their IPTV services, might this change their investment priorities away from improving Internet speeds and reliability? Yet it has been claimed by BT and others that delivery of IPTV services is their best means to secure funds to improve UK networks. Their argument seems counter-intuitive.
5. Lastly, there is the worry that the incentives for traffic shaping that lead to anti-competitive barriers on our networks are increasing in none too subtle ways. Could this lead to a serious ‘net neutrality’ debate in the UK?

Obermann once again explained the changes and said. “We want to offer flat rates in the future” He also talked about the criticism of the past weeks: “We do not ignore this criticism, but listen carefully.” 

Most of the nation’s innovation today relies on a broadband connection. Yet broadband seems to be the one area of the information economy that has not followed Moore’s law, named after the proposition by Intel’s co-founder Gordon Moore that the power of digital devices would roughly double every couple of years, radically expanding their capability and driving down their cost. 

Yet financial performance has lagged of late, because of an imbalance between those investing in the Internet and those benefiting from its impressive growth; an erosion of the industry’s pricing structures as over-the-top (OTT) substitutes bypass existing tariff structures that charge for voice and messaging bypassed by over-the-top (OTT) substitutes; a fragmented sector that restricts innovation and increases costs; and an adverse climate of regulatory price cuts, restrictions on commercial strategy, and high taxation of essential spectrum. On the positive side, demand for the industry’s core offering—communications—is growing dramatically. The adoption of new services—from videoconferencing to social media—is accelerating in all demographic segments, powered by rapid technology evolution in network infrastructure, services, and devices.

ICT Single Market

The October EU leaders summit will partly be devoted to a thematic discussion on innovation and the digital single market, European Council President Herman Van Rompuy said Tuesday. Meeting Finnish prime minster Jyrki Katainen in Helsinki, he added: “Finland’s experience as a digital pioneer will be most valued.”

Attitudes on consolidation may be softening in parts of the Brussels regulatory establishment. But it is less clear that antitrust officials will be more accommodating or that mergers will be welcomed at national level.

Spectrum

As the Commission is asking for „more harmonisation“ in spectrum policies and more spectrum for mobile broadband, mobile operators too, seem never to be satisfied with the amount of spectrum allocated. The preparations for the World Radio Conference 2015 is already underway. WRC is the international forum under the auspices of the International Telecommunication Forum in charge of coordinating international spectrum allocation. For 2015, the 700 MHz band is the target of mobile telecom operators.

The use of frequency bands for wireless broadband applications should be harmonized at European and preferably worldwide levels, says ETNO in its response to the Radio Spectrum Policy Group (RSPG) consultation on Strategic Challenges facing Europe in addressing the Growing Spectrum Demand for Wireless Broadband.

  1. EU Network Operators Say Bandwidth-Hungry Services Should Not Compete for Spectrum (PC World - May 7, 2013)

Telecom

Italy’s Antitrust Authority (AGCM) has imposed a €103,794 million fine on Telecom Italia for “have abused its dominant position” in the network infrastructure and hampered competitors. The Italian operator is now planning to appeal the ruling to the Regional Administrative Tribunal and said it will prove the fairness of its practices.

Spain’s telecoms regulator said on Tuesday it was studying fining Vodafone up to 2 million euros ($2.6 million) for failing to adhere to European roaming tariffs.

The countries covered are: Albania, Bosnia & Herzegovina, Croatia, Iceland, Montenegro, Serbia, Kosovo, the former Yugoslav Republic of Macedonia and Turkey. The project involves four rounds of data collection and the organisation of a forum for regulatory authorities in the enlargement countries every nine months over the three years.

Internet Governance - 5th WTPF / WSIS

The threat to ICANN’s role and existence is far from dissipated — the International Telecommunication Union (ITU) will hold its World Telecommunication Policy Forum (WTPF) in Geneva this month, and the UN Internet Governance Forum is preparing for its next meeting in Bali, Indonesia. ICANN must continue to befriend governments, not alienate them. A general embrace of the GAC communique can help ensure ICANN’s long-term support from governments and thereby its survival — and, as for most organizations, self-preservation is a high priority. The survival of ICANN, whatever its flaws, is also better for business, civil society, and other constituencies than ICANN’s replacement by a DNS manager in which governments have control rather than just substantial influence. 

The ITU/WTPF-13 document explicitly includes the creation of “Global Principles for the governance and use of the Internet.” It spells out intent to resolve issues pertaining to “use of Internet resources for purposes that are inconsistent with international peace, stability and security” in the form of subjecting cybersecurity/cybercrime and data privacy to international control.

The Internet Society submitted comments to the ITU that address critical topics to be discussed at the WTPF and provides background resources for Member States, Sector Members, and others participating in the WTPF. The document focuses on several key areas, including the significant role of Internet exchange points as a means of enhancing Internet connectivity, the need for timely deployment of IPv6, and the importance of the multi-stakeholder model of Internet governance.

This year’s WSIS Forum is a unique opportunity to develop consensus on what is needed for the WSIS process in the future, to ensure that the bottom-up approach of the WSIS process is preserved and that the decisions concerning modalities also respect the real requirements of the use of ICTs for socio-economic development, while ensuring growth in the ICT ecosystem itself. 

The Global Internet Policy Observatory (GIPO) will act as a clearinghouse for monitoring Internet policy, regulatory and technological developments across the world. It will:

  1. automatically monitor Internet-related policy developments at the global level, making full use of “big data” technologies;
  2. identify links between different fora and discussions, with the objective to overcome “policy silos”;
  3. help contextualise information, for example by collecting existing academic information on a specific topic, highlighting the historical and current position of the main actors on a particular issue, identifying the interests of different actors in various policy fields;
  4. identify policy trends, via quantitative and qualitative methods such as semantic and sentiment analysis;
  5. provide easy-to-use briefings and reports by incorporating modern visualisation techniques;

In the coming months, the Commission will carry out a feasibility study into GIPO, and pending those results, the development of the online platform could commence in 2014.

  1. European Commission To Develop Global Internet Policy Platform  (IP Watch - May 13, 2013)

Despite the events of last December, we believe that the similarities among governments with respect to the Internet outweigh our differences.  We all want the Internet to be accessible and to enable improvements to health, education, prosperity, and freedom on a worldwide basis. The WTPF is an opportunity for us to come together in the spirit of cooperation, healthy exchange, and shared interests for the good of the global Internet and the potential it has to further innovation, entrepreneurship, development, and public discourse.

The following ‘snapshot’ seeks to give a brief, yet nuanced picture of the Swedish policy landscape. With its outlook section, this article will also consider Sweden’s role as an increasingly important stakeholder in EU and international policy-decisions, as well as the desirability of emulating the legal framework that governs the Swedish ICT-landscape in other national contexts.

Data Protection - Week May 6 - May 13, 2013

EU Data Protection Reform

An independent survey commissioned by the Information Commissioner’s Office has found a clear lack of understanding across business around the proposed EU data reforms. Information Commissioner Christopher Graham said: ”The key is finding the right balance between the theory and the practice of strong data protection rights. Inevitably, there will be burdens for those who have to deliver the benefits, whether businesses or regulators. The question is does the benefit justify the burden?”

  1. ICO Report: DP Reform Uncertainty (SCL - May 14, 2013)

On May 10, 2013, CBS News interviewed two cybersecurity authorities to discuss the growing debate of privacy online. In the feature, entitled “Should there be a ‘right to be forgotten’ online?,” Lisa J. Sotto, partner and head of the Privacy and Data Security practice at Hunton & Williams LLP, talked about the problem of individuals’ rights to delete their online activity. She pointed out that the U.S. has no comprehensive online privacy law, and instead has a framework “comprised of a patchwork quilt of laws.”

There has been a lot of recent publicity, as well as an unprecedented amount of lobbying, in relation to the new proposed EU Data Protection regulation. However, there is less publicity surrounding the EU proposal for a new directive dedicated to network and information security. Security is an essential component of good data protection compliance. Organisations must have internal access controls to personal data within the organisation.

The lead parliamentary committee for the bill is struggling to schedule more than 3,000 amendments to the proposal and has already pushed back a vote from the end of this month until June. Negotiators in the upper house of Parliament are at odds over basic concepts, like the requirement for businesses to obtain prior consent before collecting Web data and proposed penalties for violators, which would be set at up to 2 percent of a company’s annual sales.

Reading some amendments proposed in the European Parliament, one might be forgiven for thinking that the purpose of the proposed legislation is to ensure the privacy of companies - permitting them to secretly make money out of citizens’ data without any fear that citizens will find out about it. A whole range of amendments have been tabled which will make exploitation of your data more easy, while access to information regarding who uses the data, how they are using it, why they are using it and stopping them from using it becomes much more difficult. 

A LIBE spokesperson told DataGuidance: “No other date has been confirmed but a vote will take place before the summer break with three possible meeting dates for the vote: 19-20 June 2013, 27 June 2013, 8-9 July 2013.” Ruairi Gogan, Irish MEP on behalf of the EU Irish Presidency, said: “[We] will be going to the EU Council on 6 June to re-write Chapters 1 - 4 [of the Regulation]. It is important that we move forward carefully, with an instrument at the end carrying out the objectives prescribed to us. [However, the drafts] will not be finalised within the term of the Irish Presidency.”

So the fact that the UK government is campaigning so hard against it, suggests they are less interested in practical consumer protections, than using the negotiations over the Data Protection Regulation to show off their anti-EU credentials for internal political reasons.

Small businesses such as bed and breakfasts or cafes will have to hire a data protection officer (DPO) under new rules currently being fine-tuned by the European Parliament. The parliament says any business that has 500 or more clients a year will require a data protection office to make sure data is secured and laws are being followed. But Dora Szentpaly-Kleis, a legal advisor at the Brussels-based European Association of craft, small and medium-sized enterprises (Ueampe), told this website: “Our problem is not that he [Albrecht] changed the approach because it might make sense to link the number to the data subject but we have the impression that the 500 is a very low number.” “How did they assess this number because there was no interaction on this issue between the rapporteur and us,” says Szentpaly-Kleis. A parliamentary source familiar with the file said the number “was open to negotiation.”

On Monday, the civil liberties committee of the European Parliament met to discuss the latest draft of Europe’s Data Protection Regulation. German member of parliament (MEP) Jan Philipp Albrecht, who is charged with steering the legislation through to the final vote, explained that although several meetings have been held and some agreements have been reached, more rounds of discussions are still needed. Therefore the committee will not be able to vote on the draft on May 29 as planned. Albrecht said he believes that compromises can be adopted with a broad consensus and that a vote is still possible before the summer recess in July. Ireland, which currently holds the E.U. presidency, is very keen to see a vote at the member state level before the end of its presidency on July 1. However this is only possible after the Parliament as a whole has voted, something it will not do until it has heard from the civil liberties committee. 

  1. LIBE Committee Postpones Vote on Amendments to the Proposed EU General Data Protection Regulation (Hunton & Williams - May 7, 2013)

For their part, euro-deputies in the civil liberties committee, which is examining the proposal, have not questioned the commission’s figure. But others - like the UK government, the French postal service and the pro-business American Chamber of Commerce in Brussels - have done so. They argue the regulation will bring in additional expenses and not the savings touted by the commission.

In Asia-Pacific, for example, only Australia and New Zealand meet the European Commission’s criteria of having the adequate level of protection “by reason of its domestic law or of the international commitments it has entered into”, according to the EC’s Web site.    There are workarounds though, and these are dependent on enterprises regulating data flows from the Europe office to their offices around the world. One such method is for companies with datacenters in different markets such as Microsoft or Amazon Web Services to enact binding corporate rules (BCRs) internally that are compliant with EU regulations. The other option would be to insert contractual clauses to compel non-European Economic Area (EEA) data processors to abide by EU data protection standards, Gould explained.

“In America, there’s a sense of fairness that’s culturally true for all of us,” Schmidt said. “The lack of a delete button on the Internet is a significant issue. There is a time when erasure is a right thing.” Schmidt made the comments during an event at New York University in Manhattan. He and Jared Cohen, director of Google Ideas, spoke with NYU professor Nouriel Roubini about their new book. 

This study looks at the possibilities to complement the general data protection framework with specific rules for employment relations. Data protection in employment relations clearly touches on labour law. The specific actors involved, the social partners, and the strategies used in the past to harmonise labour law, are taken into account. The study evaluates the application of the existing general data protection  framework in employment relations and considers possible options to improve it. 

  1. Separate Data Protection Law for Employment Relations Recommended (Out-Law - 9 May, 2013)

Do-Not-Track

At the close of the Face-to-Face Meeting on May 6-8, 2013 in Sunnyvale, the Tracking Protection Working Group has consensus that there was sufficient progress during the meeting to merit moving ahead with the Do Not Track standard, toward the July 2013 Last Call deadline.

This working group needs to have a drastic change of its course or to come to a mutual agreement to disagree and not have to let this drag on any further. There is no need to have it soil the good name of W3C any further than it perhaps already has. It is closing time. 

Other

We’ll be examining 250 sites based in the UK, looking closely to see how easy the policies are to read, and how clearly they explain how personal information is being handled. 

On April 30, 2013, the regional court of Berlin enjoined Apple Sales International, which is based in Ireland, (“Apple”) from relying on eight of its existing standard data protection clauses in contracts with customers based in Germany. The court also prohibited Apple’s future use of such clauses. The court’s judgment can still be appealed and is not yet binding.

Security & Surveillance - Week May 6 - May 13, 2013

UK Draft Communications Data Bill

In relation to the problem of matching internet protocol addresses, my government will bring forward proposals to enable the protection of the public and the investigation of crime in cyberspace.

  1. Traceability in the Queen’s Speech (Light Blue Touchpaper - May 8, 2013)
  2. The Queen’s Speech and Free Speech (Index on Censorship - May 8, 2013)
  3. Will the Snooper’s Charter be Back? (Paul Bernal - May 8, 2013)
  4. UK ISP Internet Snooping Confusion Reigns Over 2013 Queens Speech (ISPReview - May 8, 2013)
  5. Individuals Can Be identified Despite IP Address Sharing, BT Says (Out-Law - May 9, 2013)

What’s left is a promise to find ‘proposals’ to ask mobile companies to record user data in a similar way to other ISPs. This may still go beyond the basic principle of recording data for business purposes, and allowing lawful access to it when necessary, but is a long way from the original proposals for sweeping trawls for data, plus engines to analyse it. Data retention laws mean that innocent citizens are already having their Internet communications recorded ‘just in case’ thanks to the Data Retention Directive. This is thankfully under challenge, in Austria and Ireland, and due to be pushed to the European Courts. There is little evidence that data retention is truly useful or necessary. There is plenty to point to it being unlikely to conform with human rights standards.

Data Retention

The UK and US appear to have diverged on the issue of internet surveillance, and that has serious implications for the efforts of Australia’s security establishment to impose data retention.

The e-privacy directive is, of course, modified by the data retention directive 2006/24/EC which requires storage of, among other things, telephone call records for 6-24 months. In Denmark, the mandatory retention period is 12 months. However, telephone call records are, in practice, kept for a longer period for billing or accounting purposes. Judging from the articles in Computerworld, there appears to be some uncertainty about the precise interpretation of the maximum retention period that is allowed under the Danish law that transposes article 6 of the e-privacy directive. 

Other

The police should be allowed to hack into mobile phones and computers, even when these are located abroad. This is proposed in a draft law by the Dutch government on 2 May 2013.  The controversial proposal doesn’t only allow the hacking of mobile phones and computers, it extends to spying on users and the deletion of data. It would also include devices which are located abroad. Furthermore, the police would also gain the power to order the handing over of passwords and decryption keys. Failing to comply with the order would be punishable.   

The bill sets out the circumstances under which German law enforcement and intelligence agencies can access telecom user data. Notably, access will now be permitted not only in the context of suspected criminal offenses but also in the context of suspected administrative offenses (e.g., a traffic offense such as speeding). Commercial telecommunications service providers with more than 100,000 users are also required to make an electronic interface available to facilitate access to the telecom user data.

Copyright - Week May 6 - May 13, 2013

UK Enterprise and Regulatory Reform Act

Photographers and other rights holders will help define what constitutes a ‘diligent search’ for the author of copyrighted material as part of reforms to rules on ‘orphan works’ licensing, Out-Law.com has learned.

  1. Orphan Works - The New Law in the UK (Open Rights Group - May 8, 2013)

Other

The Global Repertoire Database (GRD) will set up its global headquarters in London with an operations centre in Berlin. The GRD initiative is being set up to create a single, comprehensive hub for the authorship and control of musical works. The main benefits from the project will include a more efficient infrastructure for the management of music rights and improved music licensing surrounding digital and other music services.

File sharing of films or music reflects a basic desire to “expand cultural horizons” and should not be criminalised, she believes:  “Using culture as a common reference point in social interaction is so normal and so human that I think not allowing that in law does not make any sense at all.” On a visit to Britain to participate in a debate on media piracy,  Ms Andersdotter said musicians and film-makers had no right to charge people for downloading their work for non-commercial use, and the public should be allowed to interact with it for free.

Robert Kyncl, head of content at YouTube, sometimes boasts that YouTube heralds the “third wave” of programming, following broadcast and cable television. Other online sites are betting that having slick, new programming will attract people to their sites. Netflix has attracted the most attention for its splashy political drama, “House of Cards”, starring a brilliantly Machiavellian Kevin Spacey. But Hulu, Amazon, YouTube, Yahoo and Microsoft, among others, are also putting money into new series and original content. Anyone who thinks channels exist only on television is sorely mistaken.

A legislative effort to streamline the law, called the Internet Radio Fairness Act, came and fizzled last fall. The bill was heavily supported by Pandora, since it would lower their rates, and opposed by musicians and songwriters. 

The publication of the report on culture and the Internet requested by French president Hollande to Pierre Lescure – former CEO of Canal +, a major TV station owned by Vivendi-Universal – will be the object of a major media buzz in France. For those interested in what would be ambitious public policies adapted to the digital era, La Quadrature du Net brings back on the table its Elements for the reform of copyright and related cultural policies. Will those 14 propositions, attentive to the freedoms and uses of everyone, to the interests of authors and other contributors, be a part of it, or will the Lescure report perpetuate the repressive policies led by Nicolas Sarkozy?

  1. French Report Says: Kill Hadopi, But Let Its Legacy Live On (Techdirt - May 13, 2013)
  2. Copyright in France: Wishful Thinking and Real Dangers (La Quadrature du Net - May 14, 2013)

Ofcom has today published further analysis of the first and second waves of the quarterly consumer research study, carried out on its behalf by Kantar Media, into both lawful and unlawful access and use of copyrighted content online. The analysis uses data previously published in November 2012 and March 2013. 

  1. Ofcom Research Into Online Infringement (Open Rights Group - May 9, 2013)
  2. ‘Worst’ File-Sharing Pirates Spend 300% More on Content Than ‘Honest’ Consumers (TorrentFreak - May 10, 2013)
  3. What Freetard Are You: Justified, Transgressor or Just Honest? (The Register - May 13, 2013)

“Although copyright law and other remedies under the [Digital Millennium Copyright Act] remain an effective tool against infringing services located in the United States, most, if not all illegal services have moved off shore to territories that lack effective enforcement mechanisms making it nearly impossible to slow the proliferation of infringing download and streaming services,” the report reads.

Last week, the District Court of Aachen (Germany) sentenced former administrator of BitTorrent portal torrent.to Jens R. to 3 years and 10 months in prison for the commercial exploitation of copyrighted works between 2005 and 2008. An aggravating factor for the Court in determining the punishment was the fact that the administrator’s sole purpose to operate the website was to generate the highest possible advertisement revenues in the shortest amount of time. Additionally, the Court considered that R. committed scene-specific misappropriation actions to conceal his identity and paid his employees extremely low wages. 

A Bill will be introduced to reduce the burden of excessive regulation on businesses. A further Bill will make it easier for businesses to protect their intellectual property. 
  1. Queen’s Speech: Selling Counterfeit Goods to be Made Criminal Offence (The Guardian - May 8, 2013)

In France, the Supreme Court answered a longstanding question on legal standing in cases about the enforcement of neighbouring rights. The Court stated that an organisation for the collective management of copyrights and neighbouring rights can only defend the rights of artists that are a member of that collecting society. 

The case, Public Relations Consultants Association Limited [PRCA] v. The Newspaper Licensing Agency Limited and others, “raises an important question about the application of copyright law to the technical processes involved in viewing copyright materials on the internet,” the court said: Whether looking at a cached copy of protected content, without downloading or printing it, amounts to infringement. Lower courts held that it does, a finding unanimously rejected by the Supreme Court. The Supreme Court judgment “is absolutely right in ensuring that acts of end users which were perfectly lawful in the analogue world remain lawful in the digital world,” said Baker & McKenzie London Head of Intellectual Property Michael Hart, who represented the PRCA. “Any other decision would have severely restricted perfectly reasonable consumer Internet use,” he said in a press release.

Last week I reported on the reply I received from Jean Bergevin of the European Commission on the subject of the IPRED consultation, and my own response to that. I wondered whether I would receive a reply, suspecting that I might not. I was wrong: not only did a reply turn up, it turned up almost by return of post.

Intermediary Liability - Week May 6 - May 13, 2013

AEPI, the Greek Society for the Protection of Intellectual Property, has filed an action in court to have several major torrent sites, among which KickAssTorrents, isoHunt, 1337x and H33T, blocked by ISPs, according to a report from Torrentfreak. The Greek anti-piracy group AEPI has first filed a temporary injunction against several ISPs (including OTE, Wind, Vodafone, Forthnet, Hellas Online, On Telecoms and the academic GRNET) to force them to block the respective sites by IP and DNS. According to TorrentFreak sources, The Pirate Bay will also be targeted by AEPI. 

Technology - Week May 6 - May 13, 2013

The HTML Working Group of the World Wide Web Consortium (W3C) today released a First Public Working Draft of the controversial Encrypted Media Extension (EME) specification, despite massive opposition from public interest organizations and members of the public. 

Fiscal - Week May 6 - May 13, 2013

Politicians in Germany and France say they will press for Google Inc to be quizzed on corporate income tax after a Reuters report highlighted how the company employs sales staff in the UK while telling the tax authorities that sales are made from Ireland.

Trade - Week May 6 - May 13, 2013

EU-US Free Trade Agreement

Dear USTR, copyright has meaningful non-economic and social value; keep it out of the U.S.-E.U. Free Trade Agreement. If you have to have it, make sure it protects all Americans and not just large content owners. (And make the agreement transparent and inclusive while you’re at it.)

European filmmakers Stijn Coninx, Luc Dardenne, Jean-Pierre Dardenne, Jaco Van Dormael, Jochen Greve, Michel Hazanavicius, Michael Roskam and Jan Theys met with European Commissioner for Trade, Karel De Gucht, on Monday 6th May in Brussels. The Commissioner declared that he did not want to jeopardise European cultural policies and tried to explain the benefits of a trade negociation between the European Union and the United States. By doing so, he only increased filmmakers’ concerns.

  1. Film-makers Defend European Cultural Exception (PressEurop - April 24, 2013)

Other

The European Union’s trade chief will ask for backing this week from senior members of the bloc’s executive arm to start investigations into alleged unfair trade practices by Chinese network-equipment suppliers Huawei Technologies Co. and ZTE Corp., an EU official said, amid concern from European companies that such a probe could prompt a backlash against their interests in China. Mr. De Gucht hasn’t yet decided whether to launch the probes, the official said. 

Policymakers need to stop treating copyright law as a zero-sum game. An effective innovation policy is one that does not entitle an elite group of creative industries at the costly expense of everyone else. It must enable and promote new businesses. The TPP’s intellectual property chapter carries provisions that instead threaten to force countries to enact laws that stifle and prevent new innovative services and creative works. The negative consequences of copyright law can no longer be dismissed as simply a “price” we need to pay to ensure creators get compensated. The U.S. copyright regime is hugely deficient. Trade negotiators need to stop advocating for the worst parts of U.S. copyright law and exporting them around the world as if they are sound regulatory models. It’s time to design innovation policy in a manner that pragmatically supports and incentivizes all innovators, big and small.

Varia - Week May 6 - May 13, 2013

Dalligate

Corporate Europe Observatory, Corporate Accountability International and LobbyControl have today urged Commission President Barroso to end Michel Petite’s membership of the Commission’s ad hoc ethical committee. Mr. Petite is the former head of the Commission’s Legal Service who went through the revolving door to work for Clifford Chance, a lobbying-law-firm with corporate clients such as tobacco giant Phillip Morris. OLAF’s investigation report on the case around ex-Commissioner Dalli, leaked last week, has provided further evidence on Petite’s work for the tobacco industry.

Staes says they have information on a number of people inside the commission that have themselves met with tobacco industry lobbyists in contravention of the same rules that saw Dalli go. “We do know that people surrounding Barroso, his cabinet, of the legal service, of the secretary general of the commission, that they also met people in the tobacco lobby,” he said. “Why can you blame a commissioner and force him to resign on the one hand and not take actions on others who do the same?” he added.

Other

*I would not expect “Brussels English” to get any closer to grammatically correct British English; on the contrary I would expect it in future to drift into areas of machine translation jargon, since that’s a lot cheaper than hiring human translators who are as skilled as the author of this document.

The commission will put forward “explicit ideas for treaty change in order for them to be debated before the European elections,” said president Jose Manuel Barroso on Tuesday (7 May). “We want to put all the elements on the table even if some of them may sound like political science fiction today. They will be reality in a few years’ time, sooner than we might think,” he told a conference on shaping economic and monetary union.

The list does appear to be more in tune with positioning for the next European Commission president, with Verhofstadt and Reding making their ambitions known, but Tusk is also spoken of as a potential candidate, although he is seen as being too close to Washington by some.

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