An EU law requiring companies to log telecommunications data for law enforcement breaches rights, an advocate-general of Europe’s top court has said. Germany in particular had challenged the Data Retention Directive.
Thursday’s opinion at the European Court of Justice in Luxembourg responds to challenges against the directive in Ireland and Austria. Adopted the by the EU in 2006 following attacks on the London tube and trains in Madrid , the Data Retention Directive specifies that firms must save telephone and Internet data – user, recipient and length of calls – for a period of up to two years.
“The directive constitutes a serious interference with the fundamental right of citizens to privacy,” Advocate-General Pedro Cruz Villalon said. “The use of those data may make it possible to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity,” he added.
Cruz Villalon argued that the directive increased the risk that corporations and individuals could use the data for unlawful and possibly fraudulent or malicious purposes – even more so as private communication companies controlled the information rather than public authorities. Cruz Villalon also called the directive invalid because it failed to sufficiently specify the circumstances for data access, storage and use – leaving this for member states to define. In addition, Cruz Villalon called one year a disproportionately long time to hold so much information – let alone two.
Relevance, ‘even urgency’
The advocate-general did recognize the “relevance and even urgency” of data retention measures. Should the court decide to follow his opinion, Cruz Villalon suggested that it grant a grace period to change the directive, rather than taking immediate measures against it.
At any given time, the European Court of Justice has nine advocates general, who provide legal but nonbinding opinion ahead of deliberations and decisions by judges.
Germany does not currently comply with the Data Retention Directive, owing in large part to a Constitutional Court ban on the legislation in 2010. The forthcoming grand coalition government hopes to limit data storage in Europe to three months.
The European Commission has withdrawn its request to review ACTA’s compatibility with the EU law in the European Court of Justice. The move virtually ensures the treaty will never be adopted in the Union.
The European Comission’s move was reported by MEPs from the Socialists and Democrats alliance.
“I welcome this news from the Commission today,” said S&D Euro MP David Martin, the author of the parliamentary report on ACTA, as cited by The Register. “The EU cannot be party to an agreement without European Parliament ratification. MEPs overwhelmingly rejected ACTA in July and I am pleased that the Commission has acknowledged this is the end of the road for ACTA in the EU thanks to the Parliament.”
The European Commission made the appeal to the court in July, after ACTA (the Anti-Counterfeiting Trade Agreement) had received a knockout blow from the European Parliament. At the time MEPs roundly rejected the treaty with 478 votes against, and only 39 in favour.
Even before that, in February this year the adoption of ACTA was suspended due to mass protests against it, with critics slamming the agreement for its breaches of human rights, that it would protect copyright at the expense of freedom of speech on the Internet.
Intended as a global treaty, ACTA started to be developed in 2007 as a means to target copyright and patent violations in a wide range of industries. ACTA has been signed by the US, Australia, Canada, Japan, Morocco, New Zealand, Singapore, Mexico, South Korea and 22 EU member states.
Of all those countries, only Japan has ratified it so far. The treaty will come into force for the countries which ratified it when at least 5 more pass the relevant legislation.
The European Parliament has rejected ACTA, a controversial trade agreement, which was widely criticized over its likely assault on internet freedoms. Supporters of the treaty suggested postponing the crucial voting at the Parliament plenary on Wednesday, but members of the parliament decided not to delay the decision any further. MEPs voted overwhelmingly against ACTA, with 478 votes against and only 39 in favor of it. There were 146 abstentions.
No sooner did a mandatory data retention law go into effect in Austria this month than thousands of Austrians banded together in a swift opposition campaign to overturn it. The Austrian law originated as the misshapen offspring of the 2006 European Data Retention Directive. Led by AK Vorrat Austria, a working group against mandatory data retention, the pushback against this mass-surveillance law demonstrates that opposition remains alive and well six years after the European Union adopted the infamous Directive.
The Austrian data retention law compels all ISPs and telcos operating in Austria to retain everyone’s incoming and outgoing phone numbers, IP addresses, location data, and other key telecom and Internet traffic data. The information is collected for all citizens, rather than just those suspected criminal activity. In many cases, the data is handed over to law enforcement.
Austrian activists took advantage of a two-year delay of the implementation of this ill-conceived Directive in their country by mapping out their opposition strategy in advance. They sought to leverage a two tier strategy to beat back the Data Retention Directive at the European level, and to fight against the Austrian data retention law at the national level.
One day before the law entered into force, Austrian activists organized funeral marches to protest this anti-privacy, anti-anonymity, anti-free expression law.
Now, just weeks after the Directive officially went into effect, its future hangs in the balance as a pair of efforts calling for its reversal speed toward Austria’s Constitutional Court. Austrian activists are seeking to overturn the legality of the Austrian law with a mass complaint filed with Austria’s Constitutional Court. With nearly 7,000 supporters formally signed on and 18,000 declaring their intent to join, that effort that is shaping up to be “the biggest complaint in the history of the republic,” according to European Digital Rights (EDRi), a coalition of 32 privacy and civil rights organizations working in the European Union, including EFF. AK Vorrat Austria initially announced that it hoped to bring 1,000 individuals together to sign onto the complaint – and surpassed that goal in two days’ time.
But activists aren’t stopping there. On a parallel track, AK Vorrat Austria has already gathered 100,000 signatures for a citizens’ initiative calling for their government to work towards the abolishment of the EU Directive. The signatures are enough to meet the required threshold to force the issue to be considered by the National Council, Austria’s legislative branch of government.
This isn’t the first time this Directive has sparked an uproar in Europe. When it first became clear that the EU was going to cave to governmental lobbying interests from the U.S. and UK and enact a sweeping law that would effectively legitimize mass surveillance, the Freedom not Fear movement responded with massive street protests in Germany and across Europe.
The opposition continues, and is only growing. Courts in Romania, Germany, and the Czech Republic have declared their national laws derived from the EU Directive to be unconstitutional, while a court in Ireland has referred a case to the European Court of Justice—the highest Court in Europe for matters related to European Union law—questioning the legality of the overall EU Data Retention Directive. The European Data Protection Supervisor Peter Hustinx has called the Directive “the most privacy-invasive instrument ever adopted by the EU in terms of scale and the number of people it affects.” Despite all this, the European Commission is still defending it even though it has not been able to provide any evidence that the Directive is necessary, and therefore legal, in the European Union.
Austrian Association for Internet users (VIBE!AT), the Ludwig Boltzmann Institute of Human Rights and several other Austrian activists are encouraging all concerned Austrians to join this fight. Austrians can join the mass complaint against the Austrian data retention law by filling out the declaration form by May 18, available at verfassungsklage.at.
Meanwhile, all Austrians age 16 and older should support the citizens’ initiative online at zeichnemit.at (in German) to call for the abolishment of the EU data retention directive. Take Action: Sign the citizens’ initiative now. Tell the Austrian government to fight for the repeal of the European Data Retention Directive in Brussels.
- ACTA in the EU: We Can’t Call it Dead Yet (alethonews.wordpress.com)
- European Data Retention Directive At Work: Polish Authorities Abuse Access to Users’ Data (eff.org)
The Anti-Counterfeiting Trade Agreement (ACTA) was dealt a major blow on April 12 when MEP David Martin, the European Parliament’s rapporteur for the agreement and member of the Committee responsible for delivering the recommendation [doc] to European Parliament to adopt or reject the agreement, announced that he would be recommending a “no” vote. While the prospects of the European Parliament ratifying the agreement seems to have fortunately lessened, it does not mean that it’s a fait accompli that the European Parliament will reject ACTA. As we’ve noted before, ACTA is a plurilateral agreement designed to broaden and extend existing intellectual property enforcement laws to the Internet. It was negotiated in secret by a handful of countries, in a process that intentionally bypassed the checks and balances of existing international IP norm-setting bodies without any meaningful input from national parliaments, policymakers, or their citizens. In our second post on the ACTA State of Play, we’ll look at what’s happening in Europe and why we should all be keeping a close eye on what’s happening in Brussels. (For those interested in US developments, please see our previous post here).
While the EU and 22 of its 27 member states signed ACTA in January, the European Parliament must vote to adopt it for it to become part of European Union law. A complex process is underway involving five European Parliamentary committees. The first step involves four committees: the Committee on Civil Liberties, Justice and Home Affairs (LIBE), the Committee on Industry, Research and Energy (ITRE), the Legal Affairs Committee (JURI), and the Development Committee (DEVE). Each must each review ACTA according to their Committee’s particular subject matter expertise, and deliver an opinion to the fifth and lead Committee, the International Trade Committee (INTA).
The INTA Committee plays the key role of recommending ACTA’s adoption or rejection to European Parliament. While INTA’s opinion is highly influential, it is not binding. The final step in the ratification process is a plenary vote of the Members of European Parliament. MEPs must decide whether to adopt or reject ACTA in its entirety; no amendments are allowed. The vote is currently scheduled for early July, but it may occur later. Here are two great infographics from the European Parliament and from French organizations La Quadrature du Net and Owni.eu which illustrate the whole process.
Apart from this process at the EU level, individual EU member states must decide whether or not to ratify ACTA. This is because the agreement requires countries to put in place broader criminal sanctions for those who infringe IP, and for those who aid and abet them. EU law is not harmonized in relation to criminal penalties for IP infringement. Criminal laws are within the exclusive legislative power of the individual EU member states and so they must ratify ACTA for those provisions to be given effect. Five member states have now suspended ratification of ACTA (Latvia, Poland, Czech Republic, Slovakia, the Netherlands and Bulgaria) and Germany has said that it will wait to see how the European Parliament votes before deciding to ratify.
There are many moving pieces in this puzzle and they each exert different levels of influence on the European Parliament’s vote. The European Commission referred ACTA to the European Court of Justice, the highest court in Europe, on February 22 for an opinion on its compliance with EU law. The European Parliament’s INTA Committee, at the instigation of MEP David Martin, the current Rapporteur of ACTA within the European Parliament, considered but rejected its own referral of ACTA to the European Court of Justice in March. If this had gone ahead, it would have delayed the European Parliament’s plenary vote beyond July. The European Data Protection Supervisor issued an opinion [pdf] on the European Parliament’s proposed accession to ACTA on April 24 that obliquely criticized ACTA by noting that it permits measures for indiscriminate monitoring of communications that would be disproportionate for small scale infringements. Specifically, it includes voluntary cooperative enforcement measures that would permit ISPs to process personal data beyond what is permitted under EU law, and lacks the necessary limitations and safeguards to protect EU citizens’ personal data under EU law.
On April 12, the Rapporteur of ACTA within the European Parliament, MEP David Martin of the INTA Committee, announced that he would be recommending that the European Parliament vote no on ACTA, but suggested that the Commission could negotiate an alternative proposal. His recommendation concluded that:
Your rapporteur therefore recommends that the European Parliament declines to give consent to ACTA. In doing so, it is important to note that increased IP rights protection for European producers trading in the global marketplace is of high importance. Following the expected revision of relevant EU directives, your rapporteur hopes the European Commission will therefore come forward with new proposals for protecting IP.
While this should indeed be seen as a major blow to the prospects of a speedy ratification by the European Parliament and a rebuke to the European Commission which took the lead in negotiating ACTA for the EU, it does not mean that ACTA is dead in the EU.
Last week, several of the four committees involved in the first step of the process were scheduled to publish their opinions and deliver them to the INTA committee. These opinions are likely to be heavily influenced by the appointed Rapporteur for each committee. They are reportedly equally divided. Two of the four Rapporteurs oppose ACTA and two are strong supporters. EDRi has posted a draft opinion of the influential Legal Affairs Committee (JURI) rapporteur, MEP Marielle Gallo, who is a strong ACTA supporter. She had previously been proposing a fast vote on her draft opinion within JURI, but on April 26, she pushed instead for JURI to postpone its vote on the opinion. This seems like a further delaying tactic by ACTA supporters to slow down the process within the European Parliament until they’ve got the numbers for a yes vote while the fierce lobbying campaign continues apace in Brussels.
Everything comes down to how MEPs vote in the Parliamentary plenary vote. MEPs in European Parliament are members of political parties, and analysts in Europe are now trying to tabulate how the political party groups will vote on ACTA. As Joe McNamee, the Brussels-based Advocacy Co-ordinator for European Digital Rights noted in an insightful piece last week, the numbers look closer than you might think: 52.5% of the Parliament opposed to ACTA, to 47.5% in favor, if you extrapolate from the views of the Rapporteurs of the four committees involved in the first ratification step:
To put it in another way, if just 20 MEPs have their minds changed as a result of the massive lobbying campaign currently underway and organised by the European Commission and big business interests, then ACTA will be adopted. The situation becomes even more precarious when we consider that it often happens that more than 5% of MEPs do not vote (either absent or abstaining) meaning that the chances of the current tiny majority being sufficient are more a matter of luck than anything else.
We are at a stage where every single vote in the European Parliament is of huge value. If the pro-ACTA message of the rapporteurs in the Legal Affairs and (shockingly) the Development Committee prevail, this will create a new momentum and will be used to “prove” that ACTA is a legitimate proposal.
Assuming that the anti-democratic elements in the European Parliament will not be allowed to have their way, there are two possible outcomes. The first is the anti-ACTA campaign will be anesthetised by complacency – assuming victory, citizens will stop contacting Parliamentarians, will not take part in demonstrations and will reassure MEPs that our attention span is so short that we can be ignored on ACTA, that we can be ignored on the upcoming IPRED Directive, that we can be ignored on the upcoming Data Retention Directive. And we reassure our opponents that no future democratic movement will be able to sustain a campaign as long as needed. We lose. Europe loses.
Or we do our duty for European democracy and maintain our pressure right up until the vote. And then we win. And Europe wins.
The future of ACTA as an international agreement will be decided in Europe. While recent media reports have led many people to conclude that ACTA is dead, this is unfortunately not true. Worse, it’s quite a dangerous misconception to have rebounding through the zeitgeist at a time when we need every possible vote in the European Parliament for ACTA to be rejected in July. Citizens in Europe and elsewhere must now clearly and loudly voice our concerns about this agreement to our elected representatives to counter-balance the content industry lobbyists that are hard at work in Brussels shoring-up support for ACTA. Now is the time to make your views heard. If you’re in the EU, contact your MEPs and urge them to vote no on ACTA.
More information on how to have your views heard is at the following resources:
EDRI’s ACTA campaign page
La Quadrature du Net’s ACTA campaign page