The latest EDRi-Gram

*So, a "Counter Extremism Algorithm," is it? There must be SOME way that might work.

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EDRi-gram

fortnightly newsletter about digital civil rights in Europe

EDRi-gram 14.14, 12 July 2016

Read online: https://edri.org/edri-gram/14-14/

1. Algorithms – censorship à la carte?
2. Privacy Shield: Privacy sham
3. Dutch parliament votes against internet filter
4. Oversight of the new Europol regulation likely to remain superficial
5. Rush to “fight terrorism” threatens our fundamental rights
6. UEFA: 1, Right to remix: 0 - Viral video gets blocked
7. Telcos & Commission attack net neutrality and BEREC's independence
8. Three steps to end freedom of expression
9. Recommended Action
10. Recommended Reading
11. Agenda
12. About

On 17 June, the Counter Extremism Project (CEP) presented software
designed to stop the proliferation of “extremist“ video and audio
online. CEP is a non-profit organisation that states as its mission
“combating extremist groups”. Of course, this algorithm alone can do
nothing: To be operational, it needs a database of already identified
“extremist” content. Humans have to define what “extremism” looks and
sounds like – and they do not always agree on the definition. Therefore,
human mistakes and bias become computer mistakes and bias.

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In principle, CEP's algorithm is not groundbreaking: It is based on the
PhotoDNA software, a widely-used tool to detect previously identifed
child abuse online, developed by Microsoft. That was rolled out with the
reassurance that it ONLY would be used to deal with universally illegal
child abuse material and only in relation to Interpol's “worst of the
worst” list of images.

Large companies like Facebook and Microsoft use PhotoDNA to check
uploads to their services, even private content of their “cloud”
servers. PhotoDNA computes an individual signature of the media
uploaded. This so-called hash is resistant to alterations in the image.
If there is a match, the content can be flagged and removed. Microsoft
makes user data associated with attempted uploads of such material
available to law enforcement agencies. Nobody has ever seen fit to do a
review to test if there is a real benefit from using the technology nor
to ensure that its use is not counterproductive in some way.

This approach lends itself to content that is always illegal. Now that
Somalia has ratified the Child Rights Convention, the USA is the only
country in the world not to have ratified that instrument, and even the
USA has ratified the Optional Protocol on Child Pornography. Legislators
and courts have clearly defined what falls into this category and it
cannot be legitimately quoted or re-used.. However, the definition of
“extremist content” is everything but clear; CEP's algorithm does not
(and logically cannot) contain this definition either. Even if it were
to use a database of previously identified material, that still would
create problems for legitimate quotation, research and illustration
purposes, as well as problems regarding varying laws from one
jurisdiction to another.

Looking at the EU, the presentation of the algorithm comes at a
politically opportune time: Together with Internet companies, the EU
Commission is currently setting up a “Joint Referral Platform”. This de
facto revival of the “Clean IT” project
aims to prevent the unnoticed re-upload of previously removed material
through mandatory monitoring of every single file that every individual
in Europe uploads to the Internet. According to the German Federal
Government, the new platform will also rely on content recognition by
robust hashing, as provided by the CEP.

The EU's Joint Referral Platform has the potential build upon the
arbitrary efforts of the European Police Office's (Europol's) “Internet
Referral Unit” (IRU). This new Europol department actively checks
platforms like Facebook and Twitter for content that is not illegal but
potentially “incompatible” with those companies' terms of service. It
sends referrals to them so that they can “voluntarily consider” what to
do with the content that has been objected to by a police agency. The
Joint Referral Platform has the potential to automate Europol's
not-formal-censorship activities by an automatic detection of re-upload.
However, it remains unclear whether any investigative measures will be
taken apart from the referral – particularly as Europol's activities,
bizarrely, do not deal with illegal material. There is obviously no
redress available for incorrectly identified and deleted content, as it
is not the law but broad and unpredictable terms of service that are
being used.

As long as the answers to these questions are missing, we leave it to
the few “content moderators“ of social media platforms to enact their
terms of service. As a professor of the history of technology Melvin
Kranzberg rightly noted: “Technology is neither good nor bad; nor is it
neutral.”

Is it really proportionate to scan/filter every single upload from every
single European, to make sure it is legal? If Europe takes the lead in
mass surveillance and filtering of their citizens' uploads to the
internet, what hope for the open and democratic internet elsewhere in
the world?

Counter Extremism Project Unveils Technology to Combat Online Extremism
(17.06.2016)
http://www.counterextremism.com/press/counter-extremism-project-unveils-technology-combat-online-extremism

There’s a new tool to take down terrorism images online. But
social-media companies are wary of it. (21.06.2016)
https://www.washingtonpost.com/world/national-security/new-tool-to-take-down-terrorism-images-online-spurs-debate-on-what-constitutes-extremist-content/2016/06/20/0ca4f73a-3492-11e6-8758-d58e76e11b12_story.html

Europol: Non-transparent cooperation with IT companies (18.06.2016)
https://edri.org/europol-non-transparent-cooperation-with-it-companies/

(Contribution by Fabian Warislohner, EDRi intern)

Today, on 12 July 2016, the European Commission adopted the so-called
"Privacy Shield", a special arrangement that allows the transfer of
personal data from the EU to the United States. The Privacy Shield
replaces the former Safe Habor agreement, which used to serve the same
purpose, before being annulled by the European Court of Justice (CJEU)
in October 2015. In the light on the Snowden revelations on US mass
surveillance, the Court decided that such data transfers would violate
privacy and data protection rights of European citizens. The adoption of
Privacy Shield today follows the approval by a majority of EU Member
States in the so-called Article 31 Committee on Friday 8 July.

"Sadly, for both privacy and for business, this agreement helps nobody
at all. We now have to wait until the Court again rules that the deal is
illegal and then, maybe, the EU and US can negotiate a credible
arrangement that actually respects the law, engenders trust and protects
our fundamental rights," said Joe McNamee, Executive Director of
European Digital Rights.

When the European Commission adopted the Safe Harbor agreement, it was
widely understood to be illegal, but the charade was maintained for
fifteen years. Everyone - the Commission, the European Parliament, data
protection regulators, business and citizens know that this agreement
will collapse much more quickly. We have "bulk data" that we are told is
not bulk data, we have an "ombudsman" who is not an ombudsman, we have
redress that is not redress.

In the annulment of Safe Harbor, the European Court of Justice made it
clear that any future decision must ensure a level of data protection
that is "essentially equivalent" to European law. When the first draft
of the Privacy Shield was published on 29 February 2016, it was
extensively criticised, for example by civil society and European
institutions and bodies (the European Parliament, the European Data
Protection Supervisor, and the European Ombudsman).

Safe Harbor Annulment (06.10.2016)
http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d524608e1828b64410bd56b8615ea88196.e34KaxiLc3eQc40LaxqMbN4Pa3aPe0?text=&docid=169195&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=866035

Leaked text by POLITICO (29.06.2016)
http://www.politico.eu/wp-content/uploads/2016/06/Privacy-shield-text-for-opinion-and-annexes.pdf

EDRi member Privacy International post (07.07.2016)
https://www.privacyinternational.org/node/889

Statement by Max Schrems (12.07.2016)
http://www.europe-v-facebook.org/PA_PS.pdf

On 5 July 2016, the Dutch parliament voted against the introduction of
an internet filter. Such a filter would ineffective and would undermine
trust in digital infrastructure.

The internet filter was proposed as part of new legislation to regulate
online gambling in the Netherlands. Currently, online gambling is
prohibited. Of course, this doesn't deter people from placing bets on
illegal websites. The proposed law not only legalises online gambling,
but considerably expands the Dutch Gambling Authority's enforcement powers.

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The proposed internet filter would have worked by manipulating certain
types of traffic, most notably the Domain Name System (DNS) which is
used for hostname to IP-address translation. Had the law been approved
without change, internet providers would be forced by the government to
render illegal gambling sites unreachable by interfering with users'
traffic - a practice we deem completely undesirable of others and
normally label as criminal.

In a debate in the Dutch parliament last week, the undersecretary of the
Ministry of Security and Justice recognised the fact that such a filter
can be circumvented fairly easily. He also acknowledged the risk of
function creep: a measure introduced for one particular goal sees over
time an array of other applications. We know, for example, that the
representatives of the entertainment industry, who have nothing to do
with gambling, lobbied in favour of the filter. The government
recognises these problems and did not object to the removal of the
internet filter from the list of powers of the Gambling Authority, as
proposed by the social-liberal political party D66.

D66 argued that the government should refrain from interfering with the
core and key protocols of the internet. Users should be able to trust
the network and were that trust to be undercut, it would impede on the
users' freedoms. The liberals of People's Party for Freedom and
Democracy (VVD) also supported the removal of the internet filter from
the law, considering its limited effectiveness. The Dutch Gambling
Authority still has quite a few other powers to intervene when
necessary, such as taking down illegal gambling sites altogether and
blocking financial transactions. D66’s amendment also gained support
from the social democrats of the Labour Party (PvdA), the second member
of the ruling coalition. A member of parliament said in an op-ed that
“North Korean measures, such as internet filters, do not solve the
problems surrounding gambling.”

This was confirmed by a leak of a draft Commission Communication on
gambling in 2011 although, unsurprisingly, that confirmation was deleted
before the final text of the Communication was published.

The Dutch EDRi member Bits of Freedom is pleased with the outcome of the
voting. A reliable internet is not only of great importance to
innovation and economic growth, but essential for the protection of our
freedoms.

The article was originally published on
https://www.bof.nl/2016/07/05/dutch-parliament-votes-against-internet-filter/.

Amendment proposed to remove internet filter (only in Dutch)
https://zoek.officielebekendmakingen.nl/kst-33996-29.pdf

EDRi: EC's leak describes blocking as "challenging", "costly" and
ineffective (26.01.2011)
https://edri.org/edrigramnumber9-2blocking-commission-gambling/

(Contribution by Rejo Zenger, EDRi member Bits of Freedom, Netherlands)

On 1 May 2017, the new regulation on Europol will enter into force. The
compromise agreed on during the trilogue procedure establishes more
detailed provisions on oversight of the activities of Europol by the
European Parliament.

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Article 88 (2), sentence 3 of the Treaty on the Functioning of the
European Union provides for the national Parliaments to be more closely
involved with this scrutiny. Article 51 of the regulation mentions the
establishment of a Joint Parliamentary Scrutiny Group (JPSG). The
European Parliament had lobbied hard during the trilogue procedure to
achieve this. The Group is to consist of Members of the European
Parliament (MEPs) and national Parliaments. Yet it is unclear how this
will work in practice.

The JPSG will be set up by the national Parliaments together with the
Civil Liberties, Justice and Home Affairs (LIBE) Committee of the
European Parliament. A working group is to be established, made up of
the Conference of Speakers. The group is to formulate a proposal which
will be deliberated on in the European Parliament's Committee on Civil
Liberties, Justice and Home Affairs (LIBE) by autumn 2016, if possible.
The responsible committees from the national Parliaments will then have
an opportunity to comment on the draft. A final version is planned for
mid-December. This final draft is then to be deliberated on further, and
subsequently adopted by a Conference of Speakers.

Despite all of this activity, the new opportunities for parliamentary
oversight and access to information provided for by the regulation are
likely to remain superficial. The explicit intention is not to
scrutinise Europol’s day-to-day work. The idea is merely to “politically
monitor Europol’s activities”. This includes examining their impacts on
“the fundamental rights and freedoms of natural persons”. If the Members
of Parliament do indeed identify problems, they may draw up “summary
conclusions” and submit them to the Parliaments.

Europol will also not be faced with any significant interference in the
administration and organisation of its work. The JPSG will be able to
participate in meetings of the Management Board, but only at the
invitation of the latter. The Members of Parliament from the EU Member
States and the European Parliament then have to take a back seat as
non-voting observers. The degree of influence in selecting the Executive
Director of Europol is equally insignificant. Before appointment, the
candidate selected by the Council may be invited to appear before the
LIBE Committee. Yet the decision on this invitation lies with the
Council, and the Members of Parliament are also only entitled to give a
non-binding opinion.

In practice, these new opportunities to exercise scrutiny are have
little meaning. The JPSG also does not have any wider rights to gain
information. Europol is supposed to transmit “relevant documents”
including “threat assessments, strategic analyses and general situation
reports”, as well as the results of studies and evaluations commissioned
by Europol. However, this only applies to non-classified documents and
thus continues a previous practice denying MEPs access to important
information.

It would have been much more important to ensure more intense scrutiny
of Europol’s operative work. This would apply, for example, to
computer-assisted investigative techniques, which cannot be monitored by
the national Parliaments. One example of this the fact that, although
the German Federal Criminal Police Office helps Europol in procuring
software for big data analysis, the Federal Ministry of the Interior
refuses to provide any information on the functions of this software,
since the national governments have no obligation to scrutinise the work
of Europol. When MEPs ask the European Commission – which is responsible
in this context – for details, these enquiries are often answered after
expiry of the three-month deadline and even then they are answered
extremely succinctly. .

It was thus not possible, for instance, to oversee the work of the new
Internet Referral Unit (IRU) at Europol, which was decided on in April
2015 and set up in July 2016. By the time the Commission finally reacted
to an enquiry about the IRU, it had already turned to other tasks,
meaning that the answer was out of date.

The article was originally published at
https://digit.site36.net/2016/06/29/new-europol-regulation-due-to-enter-into-force-from-may-2017-oversight-is-likely-to-remain-superficial/
and
http://andrej-hunko.de/component/content/article/7-beitrag/3190-new-europol-regulation-due-to-enter-into-force-from-may-2017-oversight-is-likely-to-remain-superficial.

(Contribution by Matthias Monroy, Bürgerrechte & Polizei/CILIP, Germany)

Today, on 4 July 2016, the European Parliament’s Committee on Civil
Liberties (LIBE) waved through a compromise text for a Directive on
“combating terrorism”. The compromise comes after a series of secret
negotiations between a handful of parliamentarians.

Our freedoms and security are being threatened by unclear provisions on
key issues like internet blocking and encryption. The text also includes
undefined terms, such as “radicalisation” and the “glorification of
terrorism” which can be subject to abuse. Due to political pressure,
there was “exceptionally” no assessment of alternatives to the
far-reaching measures contained in the proposal. This political
expediency risks undermining the values on which the European Union is
founded.

"Speed is being prioritised over quality. The calculation appears to be
that it is better for the EU to be seen to be doing “something” rather
than taking its time to adopt legislation that is actually fit for
purpose," said Joe McNamee, Executive Director of European Digital
Rights (EDRi).

Terrorism is a topic that requires more time and not less. It requires
more public debate and not less. It requires more safeguards to defend
our fundamental freedoms from the threat of violence and not fewer.

After the Commission had drafted its legislative proposal in only two
weeks, Members of the Civil Liberties Committee then tabled 438
amendments for today’s vote, before agreeing in secret meetings to
"compromise" amendments to replace many of them. Today’s vote is not the
end: now eight parliamentarians and EU Member States will start
closed-door, secret meetings, together with the European Commission
(known as “trilogues”). These meetings will be used to reach a
compromise between the position taken today and the position of the
Member States in the Council of the European Union. This will then be
rubber-stamped by the European Parliament and the Member States.

Afterwards, it will be up to the Member States to implement their
interpretations of the unclear provisions in the Directive. It is during
this process where any lack of clarity of the legislation will cause
damage, with unpredictable consequences. Countries around the world are
already using measures that were originally adopted to combat terrorism
and violent extremism to silence journalists, activists and normal
people who want to express themselves.

EDRi has worked extensively on the proposal during the Parliament
discussions and we are pleased that some of our suggestions were taken
into account, even if the final text adopted by the Committee still
falls short of what we would consider acceptable.

An unclear, confused, rushed and populist Directive risks being
significantly worse than no legislation at all.

EDRi's recommendations on the compromise amendments to the Terrorism
Directive
https://edri.org/files/counterterrorism/2016-EDRi-COMP-Terrorism-Directive.pdf

EDRi's recommendations on the amendments to the Terrorism Directive
https://edri.org/files/counterterrorism/2016-EDRi-all-AMs-Terrorism-Directive.pdf

Terrorism and internet blocking – is this the most ridiculous amendment
ever? (19.06.2016)
https://edri.org/terrorism-internet-blocking-ridiculous-amendment-ever/

Next year, you’ll complain about the Terrorism Directive (18.06.2016)
https://edri.org/enditorial-next-year-youll-complain-about-the-terrorism-directive/

Countering terrorism, a.k.a. the biggest human rights threat of 2016
(20.04.2016)
https://edri.org/countering-terrorism-aka-the-biggest-human-rights-threat-of-2016/

Recommendations for the European Parliament’s Draft Report on the
Directive on Combating Terrorism (29.03.2016)
https://edri.org/files/counterterrorism/CounterTerror_LIBEDraftReport_EDRi_position.pdf

The idea was so simple and yet so genius. After the dramatic Euro 2016
quarter finals between Italy and Germany, the web-artist Kurt Prödel had
a wonderful idea: he created a 14-second video, which showed all
penalties by the German team simultaneously. In the video, all players
are running simultaneously towards the Italian goalkeeper who, himself,
is replicated on the gal line, trying to defend his goal. The video clip
spread quickly across social media and was even shown in German
television - until it got blocked by the Union of European Football
Associations (UEFA). This is yet another case that shows how outdated
and ill-suited to modern media culture the current European copyright
regime really is.

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The UEFA is the rights holder of the images that were used to create
this short video, and for which no permission for reproduction was
granted. UEFA requested that the video was taken down on major sharing
platforms (such as YouTube or Facebook) alleging a copyright
infringement. Twitter temporarily blocked the whole account of the
video-artist. The purpose of copyright is to protect the legitimate
interests of creators and rights holders to exploit their works.
Blocking the account of an artist for remixing images which do not
affect UEFA's earnings could be seen as overreacting.

In the United States the video would most likely fall under the
so-called “fair use” exemption (although UEFA would probably still have
used YouTube's ContentID to remove it anyway). This exemption allows the
re-use of small parts of a work, without the explicit permission of the
rights holders, as long as the outcome is a "new" work. The idea is that
copyright laws should not impede the creation of new works which do not
compromise the exploitation of an original work. The European copyright
framework does not contain such a general exception.

This year, the German Constitutional Court ruled that the artistic
freedom prevails over the copyright in the case of “sampling” or
“remixing” (re-using excerpts of sound recordings in a piece). The
German Court recognised this "right to remix" as an essential part of
modern media culture, which needs to be protected from excessive claims
of right holders. This notion seems to be missing in the current EU
copyright framework.

Online service providers such as Youtube or Facebook are continuously
confronted with requests to take down content from their platforms
because of alleged copyright infringements. These platforms are facing
claims that are usually difficult (and costly) to verify and generally
use automatic systems to make decisions (such as ContentID). In order to
avoid legal liability, even perfectly legal content is often taken down.
In the worst misuses of the system, this has been proven to be used as a
tool for censorship.

The blocking of the penalty shot video reveals the need to reform
European copyright in order to provide legal certainty for creators and
rights holders. The only way to achieve this certainty and to foster
modern media culture is to harmonise copyright law across the EU, and
include the "right to remix" among the mandatory exceptions to copyright
protection.

Ironically, German Minister Heiko Maas also enjoyed the video and
tweeted a link to it, before it was taken down. The Minister is best
known internationally as a politician who thinks that internet companies
should become more involved in online content regulation. Maybe he
understands the issue a little better now. Maybe.

Article 5 of the Directive 2001/29/EC provides a definite list of
exemptions to copyright and related rights. The Directive would have to
be changed accordingly to include a right to remix.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

§ 24 of the German Urheberrechtsgesetz regulates the free use in
copyright law
http://www.gesetze-im-internet.de/urhg/__24.html

EDRi: Copyfail #1: Chaotic system of freedoms to use copyrighted works
in the EU (19.05.2016)
https://edri.org/copyfail-1/

The ruling of the German Constitutional Court (31.05.2016)
http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/05/rs20160531_1bvr158513.html

Blocking of Euro-meme by UEFA: in case of doubt, decide against artistic
freedom (06.07.2016)
https://netzpolitik.org/2016/sperrung-von-euro-meme-durch-die-uefa-im-zweifel-gegen-die-kunstfreiheit/

Copyright Law as a Tool for State Censorship of the Internet (03.12.2014)
https://www.eff.org/deeplinks/2014/12/copyright-law-tool-state-internet-censorship

(Contribution by Claudius Determann, EDRi intern)

On 7 July 2016, the European Commissioner for Digital Economy and
Society Günther H. Oettinger welcomed an attack on net neutrality and
the independence of the European Telecom Regulators (BEREC).

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Seventeen operators have made an anti-net neutrality statement called
the "5G Manifesto" that one can even find on the European Commission's
website. Among other things, the manifesto criticises BEREC's draft
guidelines for creating (unspecified) uncertainties for investment. The
rather hysterical statement even threatens the regulators with a delay
in investment unless they "take a positive stance on innovation and
stick to it." This demand is mirrored in some of the almost comically
biased questions in the 5G networks “consultation” launched by the
European Commission.

Even more worrying than the content of the manifesto is the endorsement
it has received from the European Commission and, in particular, from
the European Commissioner for Digital economy and Society Günther H.
Oettinger. In fact, the Commission has promoted the anti-net neutrality
declaration not only once, but at least three times on the European
Commission's website (see here, here and here). In addition, the
Commissioner applauded these companies in social media. Does this mean
that the Commission is "very much" welcoming an attack against net
neutrality, the law and the regulators' independence?

Contrary to what the 5G Manifesto suggests, BEREC's draft guidelines
interpret the EU Regulation in places where the law is unclear or
silent. The purpose of this work is to enable the implementation of the
law in a consistent way in all Member States. BEREC cannot rewrite or
contradict the law – the Regulation is the law that the European
Commission had previously supported (and, officially, still does). By
asking BEREC to depart from the principles and rules established in the
law, the European Commission is actively undermining BEREC's
independence. As the EU's Framework Directive on electronic
communications correctly establishes, "[t]he independence of the
national regulatory authorities should be strengthened in order to
ensure a more effective application of the regulatory framework and to
increase their authority and the predictability of their decisions".

Citizens around the world can help preventing industry lobbying takes
over the European Commission and the telecoms regulators' independence
by resorting to https://savetheinternet.eu.

EDRi press release: Net neutrality – last call for responses to Europe’s
biggest ever telecoms consultation (11.07.2016)
https://edri.org/net-neutrality-last-call/

EDRi's response to the 5G networks consultation (11.07.2016)
https://edri.org/files/netneutrality/consultation_5gopportunities_edriresponse.pdf

Vital support from industry for the EU 5G action plan (07.07.2016)
https://ec.europa.eu/commission/2014-2019/oettinger/blog/vital-support-industry-eu-5g-action-plan_en

Commissioner Oettinger welcomes 5G Manifesto (07.07.2016)
https://ec.europa.eu/digital-single-market/en/news/commissioner-oettinger-welcomes-5g-manifesto

Commissioner Oettinger discusses industry recommendations on 5G (07.07.2016)
http://europa.eu/rapid/press-release_MEX-16-2447_en.htm

Bringing down barriers in the Digital Single Market: No roaming charges
as of June 2017 (27.10.2015)
http://europa.eu/rapid/press-release_IP-15-5927_en.htm

Framework Directive on electronic communications (25.11.2009)
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32009L0140

(Contribution by Maryant Fernández Pérez, EDRi)

Our right to freedom of expression is laid out in law by the EU
Treaties. To ensure democracy and accountability, this fundamental human
right may not be restricted unless it is necessary, achieves an
objective of general interest and the measure to restrict it is provided
for by law.

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This guarantee of our fundamental rights, which is explicitly protected
by the EU Treaties (the Charter of Fundamental Rights of the European
Union) and by the European Convention on Human Rights). This right is
now being actively removed by the European Commission.

Step 1 – Put companies in charge

The European Commission pushed US online companies (Google, Twitter,
Facebook and Microsoft) to agree to a “Code of Conduct”. In the Code of
Conduct, it is agreed that:
- The companies would take “the lead” in fighting illegal hate speech
online;
- Their terms of service would ban illegal hate speech; and
- They would review complaints of illegal hate speech first against
their terms of service, and only “where necessary” against the law.

In short – companies will ban what is already illegal, adding this ban
to whatever is already prohibited by their terms of service. The law
becomes irrelevant. The companies avoid responsibility, as they don't
have accuse any content of being illegal, but only a breach of terms of
service. Because nobody has been accused of doing anything illegal, the
police will not have to worry about getting reports that they will have
to investigate.

Step 2 – Make sure the law enforcement authorities won't be responsible
for restricting free speech

The legal instrument that establishes the tasks of Europol, the European
law enforcement agency, now includes a provision to request the deletion
online content which is explicitly NOT illegal.

One of Europol's roles is to refer reports to online service providers,
so that they can “voluntarily” check if the online contents is
compatible with their terms and conditions. Europol avoids liability for
deletions of content, because their reports are for “voluntary
consideration” by the companies. The companies rely on their vague terms
of service to delete content, to avoid liability or public accusations
of being unhelpful. As Deputy Director of Europol Wilhelm van Gemert
explained in an interview: “violent content is not banned by legal
authorities but by the companies themselves”.

Step 3 – Give states the job of writing the terms of service of companies

In the draft Directive on audio-visual media services, the European
Commission takes another huge and surprising step. It proposes giving EU
Member States the job ensuring that the ”concepts” of ”incitement to
violence and hatred” and content that is harmful for children are
adequately defined and applied in the terms and conditions of the
video-sharing platform providers. This would mean that lawmakers could
define the rules, not only in law, but also in private companies' terms
of service. These rules can then be policed arbitrarily by the
companies, in line with the ad hoc arrangements already agreed with
Europol and in the hate speech code of conduct.

To add to the already impossibly unclear mishmash of law and terms of
services, the draft Directive even explains that regulating “hate
speech” should only be aligned with the law “to the appropriate extent”
- an extent which is not explained or defined. Of course, this is so far
“only” for video-sharing websites and so far (in relation to
video-sharing websites) EU Member States would not be allowed to go
further than this, so there is nothing to worry about.

Step 4 is already in the early stages of development. Member States in
the EU Council are having discussions about “voluntary” cooperation with
internet companies to decrypt encrypted communications.

Conclusion:

It is quite clear that removal of material online is a restriction on
fundamental rights. It is quite clear that the safeguards in the Charter
of Fundamental Rights of the EU are being willfully ignored:

EU Charter: Article 52.1:
"Any limitation on the exercise of the rights and freedoms recognised by
this Charter must be provided for by law and respect the essence of
those rights and freedoms. Subject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet
objectives of general interest recognised by the Union or the need to
protect the rights and freedoms of others."

"Code of Conduct"
http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf

(Contribution by Joe McNamee, EDRi)

Final call to Save the Internet!
EU telecom regulators are finalising their net neutrality guidelines.
You have until 18 July to respond to the public consultation, to send
your message to support a free, innovative, and open internet!
https://savetheinternet.eu/

UPC and ISDS: who would have to pay the damages awards? (01.07.2016)
https://blog.ffii.org/upc-and-isds-who-would-have-to-pay-the-damages-awards/

Anonymization and the Law (11.07.2016)
https://www.schneier.com/blog/archives/2016/07/anonymization_a.html

EU: European Commission’s Code of Conduct for Countering Illegal Hate
Speech Online and the Framework Decision (20.06.2016)
https://www.article19.org/resources.php/resource/38430/en/eu:-european-commission%E2%80%99s-code-of-conduct-for-countering-illegal-hate-speech-online-and-the-framework-decision

Sweden: The weakest link in EU net neutrality reform?
https://netzpolitik.org/2016/sweden-the-weakest-link-in-eu-net-neutrality-reform/

12.07.2016, Brussels, Belgium
#NetCompetition Forum – How to deliver broadband deployment and consumer
welfare for Europe?
https://netcompetitionforum.eventbrite.co.uk

31.08.2016, Helsinki, Finland
MyData 2016
http://mydata2016.org/

14.10.2016, Brussels, Belgium
Freedom Not Fear 2016

15.10.2016, everywhere
EU Codeweek
http://events.codeweek.eu/

27.10.2016, Warsaw, Poland
CopyCamp 2016 – Future of Copyright in Europe
http://copycamp.pl/en/

15.11.2016, Brussels, Belgium
EUhackathon #EUh2016
http://2016.euhackathon.eu/

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