*It isn't pretty.
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EDRi-gram
fortnightly newsletter about digital civil rights in Europe
EDRi-gram 15.1, 11 January 2017
Read online: https://edri.org/edri-gram/15-1/
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Contents1. 2017 - another extremely challenging year for digital rights
2. The hacking law with its own backdoor
3. The Republic of Moldova: “Big Brother” Law
4. Snowden: Surveillance is about control
5. EDRi.org: Best of 2016
6. ENDitorial: Happiness – owning nothing and having no privacy?
7. Recommended Action
8. Recommended Reading
9. Agenda
10. About=======================================================================
1. 2017 - another extremely challenging year for digital rightsThe agenda of the year 2016 for the protection of digital rights was
filled with challenges, and it looks like 2017 is not going to be any
easier. (((That seems like a lead-pipe cinch.)))Since the Digital Single Market is one of the priorities of the Maltese
presidency of the Council of the European Union, we can expect more
policy developments affecting citizens' rights and freedoms online in
2017. In its work programme, Malta pledges to pursue talks on
geoblocking, roaming fees, connectivity, high frequencies and
cross-border portability.While taking advantage of the single market to benefit the economies by
scrapping trade barriers and providing European citizens access to
services, it is crucial to keep the focus on improving data protection,
freedom of expression and defending citizens' right to privacy.—————————————————————–
Support our work - make a recurrent donation!
https://edri.org/supporters/
—————————————————————–What were the crucial policy developments in 2016? What we expect to
happen in 2017, and what are our key priorities for the year ahead?Data protection and privacy
In 2016, the European Parliament adopted the General Data Protection
Regulation (GDPR) and the Law Enforcement Data Protection Directive
(LEDP), which are set to enter into force in 2018. EDRi welcomed the
overall positive outcome of the GDPR, but regrets that the initial high
expectations were not realised. The Commission adopted the Privacy
Shield adequacy decision that has already been challenged in front of
the Court of Justice of the European Union (CJEU) and rejected by the
European Parliament. The EU/US Umbrella Agreement, which was judged to
be incompatible with EU law by the European Parliament’s legal service,
was also approved.As for 2017, e-Privacy will be one of EDRi’s main priorities. On 10
January, the European Commission published its proposal for the
e-Privacy Regulation. This legislation is crucial to provide clear rules
on tracking individuals as they surf the web, and freedom of
communication more generally. To promote trust, privacy and innovation,
the proposal needs significant improvement.Surveillance
In 2017, we will provide input on discussions around cross-border access
to evidence and the protection of encryption. We will also provide input
on discussions around the Council of Europe’s Budapest Convention on
Cybercrime, also with a particular interest in the hot topic of “access
to evidence”. Weakening of procedural rules for access to communications
data by foreign governments would obviously have major implications for
privacy and security.Net neutrality
In 2016, the Body of European Regulators of Electronic Communications
(BEREC) published its guidelines on the implementation of European net
neutrality rules. Thanks to our hard and persistent work, the guidelines
reflect our recommendations quite well.In 2017 we will keep on campaigning for net neutrality by providing
input to discussions around the BEREC regulation, and monitoring the
Telecoms Package review. In December, we reported on the success of one
of our Austrian members in ensuring the effective implementation of the
new rules.Copyright
The current European copyright system is broken and must be changed. The
European Commission has set in its agenda reforming copyright as one of
the foundations to build the Digital Single Market. In 2016, the
Commission issued a highly criticised draft legislation. The proposed
Copyright Directive could not conceivably be worse, even including a
proposal for upload filtering, despite the fact that the Court of
Justice of the European Union has already rejected this approach.In 2017, the European Parliament and Council will discuss the new
proposal. We will closely follow the discussions and advocate for
amendments to improve the parts of the text that can be improved and
rejection of the parts that cannot.=======================================================================
2. The hacking law with its own backdoorIn the past few years, Dutch EDRi member Bits of Freedom has put a lot
of effort into trying to stop the Dutch hacking proposal. The proposal
would grant Dutch law enforcement agencies the authority to remotely
access electronic devices. In December 2016, the law was passed in Dutch
Parliament. Sadly, without the improvements that the law desperately needed.The legislative process
The plans for this bill became public in 2012. In June 2013, a bill was
launched for public consultation. After that, things settled down for
quite a while, until December 2015, when the bill was sent to
Parliament. After a public hearing and a very short time frame for the
political parties to give their opinion and submit their questions, it
got quiet again in February 2016.Too quiet for the VVD (liberals) and the CDA (Christian democrats). They
repeatedly inquired why the answers to their questions took so long and
demanded a swift process. They also put the bill on a fast track in
Parliament – even without their questions answered by the government.The answers finally came in November 2016, in a 134-page report. In many
ways, this created more confusion rather than answered any questions. It
was no surprise that procedural mechanisms were used by the coalition of
PvdA (social democrats) and the VVD (liberals) to push ahead with the
vote on the bill, pushing aside requests from the opposition to get
clarification on the report.On 13 December 2016, the Parliament debated the bill. A week later, on
20 December, they voted in favour of adopting the proposed bill. It will
now be debated in the Senate.The substance
The law will allow law enforcement agencies to hack into any electronic
device. These devices may or may not be connected to the internet. After
accessing the device – and based on the court order – they are allowed
to, for example, search the device, to activate applications (including
webcams and microphones), to copy or delete data. Law enforcement
agencies are allowed, after a court order, to access these devices
through several means, including the use of vulnerabilities.—————————————————————–
Support our work - make a recurrent donation!
https://edri.org/supporters/
—————————————————————–Bits of Freedom campaigned hard to get the point across that the use of
not publicly known vulnerabilities to access devices of suspects would
leave innocent users of the same type of devices vulnerable to the
illicit exploitation of those same vulnerabilities, and might ultimately
lead to more cybercrime. Using vulnerabilities to try to reduce
cybercrime could have the opposite effect. This point was understood by
some parties, but not by all (such as the VVD and CDA that continue to
support the proposal). The debate mostly revolved around the use of
vulnerabilities.The backdoor in the law
In the law, as passed in the Parliament, law enforcement authorities are
allowed to exploit known vulnerabilities. They are also allowed to use
vulnerabilities that are not publicly known. They are not allowed to buy
unknown vulnerabilities, but they are allowed to buy hacking software.
This class of software is known for using unknown vulnerabilities. This
means that the prohibition of buying unknown vulnerabilities is easily
circumvented. The law, therefore, has its own backdoor.The coalition did amend the bill on a very important point: after using
the unknown vulnerability, the creator of the vulnerable software has to
be notified. But in cases where these unknown vulnerabilities are
exploited via governmental malware, the police either is not aware of
the vulnerability (and thus cannot notify) or is bound to non-disclosure
agreements (and thus are not allowed to notify). Consequently, law
enforcement agencies will either break the law or break their contract.Conclusion
Although a lot of time passed between the first draft of the bill and
the approval by the Parliament, the crucial part of the Parliamentary
process was rushed. The questions and issues raised by the Parliament
have not been adequately answered by the government. The ruling
coalition has rejected multiple requests by the opposition to clarify
the law and its meaning.Probably the most painful conclusion of this
three-year-governmental-hacking campaign is that as a result we now have
sub-standard legislation. Bits of Freedom could have accepted a hacking
law if the law actually provided adequate technological safeguards,
excluded the use of vulnerabilities that are not publicly known, and
created clear and foreseeable rules and consequences. On paper, the law
looks quite alright. But after careful consideration, it's clear that in
reality, it will have serious consequences.There are also positive notes. The debate was relatively informed and
most Members of Parliament seemed aware of the possible negative
outcomes of using unknown vulnerabilities. This means that there is
still a chance in the Senate: there still is a possibility to get more
clarifications, restrictions and maybe even a rejection. The fight is
not over yet – and we have our work cut out for us.Parliament decides in favour of law full of backdoors (in Dutch only,
20.12.2016)
https://www.bof.nl/2016/12/20/kamer-kiest-voor-wet-vol-achterdeuren/Police wants to hack back (in Dutch only, 12.12.2016)
https://www.nrc.nl/nieuws/2016/12/12/justitie-wil-nu-terughacken-5768571-a1536344Bits of Freedom campaign-site
https://stophethackvoorstel.nl/Dutch parliament approves bill to hack criminal suspects (21.12.2016)
http://nltimes.nl/2016/12/21/dutch-parliament-approves-bill-hack-criminal-suspectsEDRi: Dutch police wants to hack their citizens' devices (08.05.2013)
https://edri.org/edrigramnumber11-9dutch-police-to-hack-electronic-devices/(Contribution by Ton Siedsma, EDRi member Bits of Freedom, the Netherlands)
=======================================================================
3. The Republic of Moldova: “Big Brother” LawIn the European Union (EU) the limitation of mass surveillance measures
is currently discussed in the context of the European Court of Justice
(CJEU) and four EU member states' constitutional court decisions
relating to the laws on retaining traffic data. At the same time, in the
Republic of Moldova, a new law on broadening the obligations to retain
traffic data, increase digital surveillance and impose internet blocking
is being proposed - without a comprehensive analysis of the necessity
and proportionality of this excessive interference with the fundamental
rights, and claiming these obligations are needed to comply with the
international conventions.—————————————————————–
Support our work with a one-off-donation!
https://edri.org/donate/
—————————————————————–The draft Law no. 161 on Amendments and Supplements to Certain
Legislative Acts, also known as the “Big Brother” Law, raises several
issues relating to the way these provisions could be applied. It could
affect fundamental rights, and, in particular, the right to privacy,
without being justified as necessary in a democratic society, in line
with the European Convention on Human Rights.Some of the proposed amendments raise legitimate questions about the
need for each particular measure. For instance, the implementation of
the proposal to block access to “all IP addresses that host web pages
(...) containing information that urge to hatred or ethnic, racial or
religious discrimination, to hostility or violence” would lead directly
to blocking Facebook, YouTube or Twitter in the country, although this
most probably was not what the legislator wanted.Bogdan Manolea, the Executive Director of the Romanian EDRi member,
Association for Technology and Internet (ApTI) in collaboration with the
Legal Resources Centre from Moldova (LRCM) prepared recommendations
concerning the “Big Brother” Law. The recommendations include:
- rejection of the proposed articles that would lead to mass
surveillance measures (such as those related to data retention);
- detailed examination of legislation that extends the limitation of
fundamental rights, including a study of the impact on human rights
based on the case law of the European Court of Human Rights and
independent expert analysis;
- waiving the obligations to “stop“ access to web pages. Blocking of web
pages by Internet Service Providers (ISPs) represents an interference
with the normal internet traffic between users and websites, which
amounts to a violation of freedom of expression and the right to privacy
by means of creating a layer of censorship. It is important to
understand the difference between:
* stopping access/blocking - when the content remains on the internet,
visible to most users, but hidden for the users from the Republic of
Moldova who are subject to blocking; and
* deletion of content from the internet – when the illegal content
cannot be accessed anymore.You can read the full Opinion on the Draft Law no. 161 on Amendments and
Supplements to Certain Legislative Acts (“Big Brother” Law) here
http://crjm.org/wp-content/uploads/2016/12/2016-11-Op-Big-Brother-CRJM-Manolea_Eng-fin.pdf
(in English) or here
http://crjm.org/wp-content/uploads/2016/12/2016-11-Op-Big-Brother-CRJM-Manolea_Ro-fin.pdf
(in Romanian)."Big Brother" Law proposed for public debate (10.10.2016)
http://trm.md/en/social/legea-big-brother-supusa-din-nou-dezbaterii-publice/Civil Society Organisations Calls for an international expertise of the
Draft Law which Extends and Intensifies the Law Enforcement Bodies’
Control over the Digital Space (08.04.2016)
http://crjm.org/en/expertizarea_proiectului_de-lege_big-brother/(Contribution by Bogdan Manolea, EDRi member ApTI, Romania)
=======================================================================
4. Snowden: Surveillance is about controlIn December 2016, the 33rd edition of the world’s longest-running annual
hacker conference Chaos Communication Congress, organised by EDRi member
Chaos Computer Club (CCC), took place. It featured many insightful
lectures and workshops on issues related to security, cryptography,
privacy and freedom of speech. When it comes to surveillance issues, a
live appearance from Edward Snowden stole the show.The surprise appearance happened during a talk on the political
reactions to mass surveillance in Germany. Speakers Anna and Andre
Meister pointed out that, although Germany is the only country
organising a parliamentary inquiry committee investigating the Snowden
revelations, they are missing the input of the number one witness,
Edward Snowden himself. That is when Snowden appeared on the screen and
addressed the audience in a live video stream.Snowden’s intervention was especially informative in the sense of
current surveillance and security debates, including the EU Directive on
Combating Terrorism. EDRi has criticised the Directive extensively and
pushed for a human rights agenda together with other organisations in
order to prevent abuses of freedom of expression and privacy.As Snowden pointed out, we've repeatedly seen evidence that mass
surveillance is actually not effective in stopping terrorism. And yet
despite that, we see more and more political support, not only to
continue these programmes, but to expand them, and to fund them to even
greater levels. As we see in many of EU countries, there is a trend of
giving more power to the intelligence agencies, without the reflection
of how their activities affect citizens' rights.“It [surveillance] was never about terrorism, because it’s not effective
in stopping terrorism. It’s not about security at all, it’s not about
safety. It’s about power. Surveillance is about control. It’s about
being able to see moments of vulnerability, in any life, whether that
person is a criminal or they are an ordinary person,” said Snowden.
(((Actually it's pretty clear that it's mostly about seeing
moments of vulnerability in politicians, which is why hackers hit
the Democratic National Committee and not the local Kiwanis Club.)))—————————————————————–
Support our work - make a recurrent donation!
https://edri.org/supporters/
—————————————————————–As speaker Andre Meister, EDRi observer, put it, democracy is supposed
to be the informed consent of the governed. However, if we are not
informed, we cannot really consent to what is happening. Snowden
revelations and the inquiry committee in Germany have shown that “spy
agencies” function in a way that contradicts the principle of democracy,
since they are operating in secret and there's often no control over
whether they are breaking laws.Snowden pointed out the new harsh surveillance legislation in China and
Russia passed with the argument of “just keeping up with the Western
world”. He expressed his concern about our society no longer being
worried about human rights - we are only barely concerned with the
rights of our co-citizens. However, Snowden reminded the audience, human
rights are universal, and regulated by several international rights
agreements and treaties.The fact is that no country is immune to the trend of increasing mass
surveillance. Rights are being violated indiscriminately by intelligence
agencies, not only in China and Russia, but in the US, Germany, in the
UK, in Canada. And as Snowden put it, secret government is necessarily a
bad government. In order not to have bad governments, we have to take
action. It might seem that Snowden is preaching to the choir, but his
appeal to stand for our privacy and the privacy of others still
generates much-needed inspiration.EDRi: Chaos Communication Congress 2016 (06.01.2017)
https://edri.org/33c3-2016/3 Years After Snowden: Is Germany fighting State Surveillance?
https://media.ccc.de/v/33c3-8117-3_years_after_snowden_is_germany_fighting_state_surveillance#video&t=2744EDRi: European Union Directive on counterterrorism is seriously flawed
(30.11.2016)
https://edri.org/european-union-directive-counterterrorism-seriously-flawed/EDRi: Terrorism Directive: Document pool
https://edri.org/terrorism-directive-document-pool/(Contribution by Zarja Protner, EDRi intern)
=======================================================================
5. EDRi.org: Best of 2016One of EDRi's goals for 2016 was to reach a wider audience and raise
awareness of the digital rights issues. As it turns out, with the help
of our members and supporters, we were successful! Our blogposts and
articles were read widely, and our most popular publication was
downloaded more than 23 000 times. Here is a selection of the most read
articles.Net neutrality wins in Europe!
We are not able to report on positive policy developments as often as we
would like. However, we were happy to report that the new net neutrality
guidelines from the Body of European Regulators for Electronic
Communications (BEREC) confirmed strong protection for net neutrality
and for the free and open internet. Readers were just as excited as we
were: this was our most read article in 2016.
Read the blogpost here: https://edri.org//net-neutrality-wins-europe/Big Brother Awards Belgium: Facebook is the privacy villain of the year
Our readers appreciated the news on the Belgian Big Brother Awards 2016,
where the negative prize for the worst privacy abuser was unanimously
granted to Facebook for harvesting and generating personal data from
people all around the world, particularly in the context of the
acquisition of WhatsApp. Recent news from the European Commission show
that we were not alone in our concerns.
Read the blogpost here: https://edri.org//bba-belgium-2016/—————————————————————–
Support our work with a one-off-donation!
https://edri.org/donate/
—————————————————————–New copyright directive fails at every level
There were some legislative proposals worse than others, but the queen
of all was the Copyright Directive. It includes a proposal to
potentially filter all uploads to the internet in Europe – a provision
that would require internet companies to block uploads of perfectly
legal material.
Read the press release here:
https://edri.org//press-release-new-copyright-directive-fails-every-level/Next year, you’ll complain about the Terrorism Directive
In December 2015, the European Commission proposed a Directive on
combating terrorism. The proposal was drafted in two weeks, with no
impact assessment. Since then, the legislative process has been rushed
through. Provisions that undermine human rights online and offline have
been added. Despite a difficult political environment, we did manage to
achieve some successes in the Directive. We don’t give up and keep
pushing for human rights.
Read the blogpost here:
https://edri.org/enditorial-next-year-youll-complain-about-the-terrorism-directive/Your privacy, security, and freedom online are in danger
The EU has a chance to protect citizen's rights and freedoms in the
upcoming e-Privacy reform. At the same time, we want people to learn
about how to actively defend their privacy and to keep enjoying their
freedoms. Our series of blogposts on privacy, security, and freedom
proved to be a success.
Read the blogpost series here: https://edri.org/privacy-security-freedom/New leaks confirm TiSA proposals that would undermine civil liberties
Trade agreements pose potentially serious threats to freedom of
expression and protection of personal data of European citizens. In
November 2016, German blog Netzpolitik.org in association with
Greenpeace published leaked documents concerning the Trade in Services
Agreement (TiSA). The documents confirmed that TiSA would undermine
civil liberties.
Read the blogpost here:
https://edri.org//new-leaks-confirm-tisa-undermine-civil-liberties/Your guide to Digital Defenders
In 2016 we also witnessed an increase of downloads of our publications.
A big success came with the privacy for kids booklet, which was
downloaded more than 23 000 times. The booklet will soon be available in
many other languages, and so we expect the number to continue rising.
Download the booklet in English here:
https://edri.org//files/privacy4kids_booklet_web.pdf
Download the booklet in other languages here:
https://edri.org/digital-defenders-help-kids-defend-their-privacy-around-europe/Our other popular publications were, among others, booklets on data
protection and net neutrality.
Download the data protection booklet here:
https://edri.org//files/paper06_datap.pdf
Download the net neutrality booklet here:
https://edri.org//files/EDRi_NetNeutrality.pdf(Contribution by Zarja Protner, EDRi intern)
=======================================================================
6. ENDitorial: Happiness – owning nothing and having no privacy?In November 2016, Danish social-liberal parliamentarian Ida Auken wrote
a chilling, dystopian article that was published on the website of the
World Economic Forum. It looked forward to a hypothetical society in the
year 2030, where nobody owned anything, not even their own personal
space, not their own secrets, not their own life. In an addendum to the
piece, Ms Auken explained that some had portrayed this as a “utopia or
dream of the future” which was not, she explained, her stance.(((One of the most effective works of design-fiction that I've ever
seen from a politician. People just can't stop talking about it.)))—————————————————————–
Support our work - make a recurrent donation!
https://edri.org/supporters/
—————————————————————–An unseen hand would own everything and everything would be communal.
The unseen hand would be benevolent. Those that had absolute power and
absolute control in a society where individuals had no privacy and no
assets (and, consequently, no ability to challenge power, to control or
to hold power accountable) would somehow have willingly given away their
power and replaced it with a benevolent dictatorship.Nobody would have the responsibility to do the hard work of industrial
production, but it would somehow still be done. Artificial intelligence,
owned, developed and maintained either by no-one or by the all-seeing
benevolent dictator, would be able to do your shopping. It would know
your preferences better than you, so why would you do it yourself?In this utopia/dystopia, Ms Auken imagines individuals being disturbed
by the lack of privacy and hopes that nobody will use it against them.
Of course, as mentioned, she envisages that artificial intelligence
would know individuals better than they know themselves. As a result,
artificial intelligence will be aware of their concerns and one imagines
that those individuals’ filter bubbles would be adapted accordingly, in
order to assuage their fears.The luddites, the ones who would want a society based on the freedom to
evolve, to challenge and to question without the “sharing economy”
disenfranchising, disappropriating and commodifying them, would live
outside the city. City dwellers would worry for the welfare of these
self-sufficient societies, living with privacy in an adaptable and
changeable society.Ms Auken explains she wrote the post as a means of starting a debate
because (hopefully in a less extreme variety), the issues she raises are
already on the horizon. Her rather provocative piece is, therefore, an
important spur for some much-needed debate.Her post raises questions such as...
- If knowledge is power and the vast unbalance between the knowledge of
the surveillance economy and the knowledge of citizens continues to
grow, can that power be held accountable?
- Can a society evolve in such circumstances?
- Can democracy exist when monopolies of that surveillance economy are
(now, already) being asked to monitor and filter our communications,
building on their existing, profitable, filter bubbles?Welcome to 2030. I own nothing, have no privacy, and life has never been
better (11.11.2016)
https://www.weforum.org/agenda/2016/11/shopping-i-can-t-really-remember-what-that-is/(Contribution by Joe McNamee, EDRi)
=======================================================================
7. Recommended ActionTake survey on data privacy in DE, AT, CH!
A joint survey by StartPage, StartMail and EDRi members Digitalcourage
(DE) and epicenter.works (AT) asks users in Germany, Austria and
Switzerland to give their opinion on privacy and surveillance. The
survey is to be run annually to accompany Data Privacy Day on 28
January. The survey will run until Tuesday, 24 January, with some
results to be published on Data Privacy Day, and others in the time
beyond. The hope is to give users a voice in the ongoing debate on
whether increased state surveillance and weakened protections on
commercial data processing are in the public interest.
https://datenschutztag.org/survey/Join Bits of Freedom!
EDRi member Bits of Freedom is looking for a Dutch-speaking full-time
campaigner.
https://bof.nl/2017/01/04/vacature-bits-of-freedom-zoekt-een-gedreven-campaigner/=======================================================================
8. Recommended ReadingBoundaries of Law: Exploring Transparency, Accountability, and Oversight
of Government Surveillance Regimes (05.01.2017)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2894490Inside the assasination complex: Whistleblowing is not just leaking —
It’s an act of political resistance (03.05.2016)
https://theintercept.com/2016/05/03/edward-snowden-whistleblowing-is-not-just-leaking-its-an-act-of-political-resistance/Call For Views: Modernising the European Copyright Framework (05.12.2016)
http://www.iposgoode.ca/wp-content/uploads/2016/12/IPOModernisingIPProfResponsePressPublishers.pdf=======================================================================
9. Agenda24.01.2017, Brussels, Belgium
Privacy Camp 2017
https://privacycamp.eu/25.01.2017, Brussels, Belgium
CPDP 2017: The age of intelligent machines
http://www.cpdpconferences.org/29.03.2017, Brussels, Belgium
RightsCon Brussels 2017
https://www.rightscon.org/03.04.2017, Nicosia, Cyprus
2nd International Conference on the Right of Freedom of Expression in
the Digital Age
https://www.unic.ac.cy/news-and-events/73/call-papers-right-freedom-expression-digital-age/75701806.06.2017, Tallinn, Estonia
EuroDIG 2017
https://www.eurodig.org/04.08.2017, Zeewolde, the Netherlands
SHA2017
https://sha2017.org/============================================================
12. AboutEDRi-gram is a fortnightly newsletter about digital civil rights by
European Digital Rights (EDRi), an association of civil and human rights
organisations from across Europe. EDRi takes an active interest in
developments in the EU accession countries and wants to share knowledge
and awareness through the EDRi-gram.All contributions, suggestions for content, corrections or agenda-tips
are most welcome. Errors are corrected as soon as possible and are
visible on the EDRi website.Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 3.0 License. See the full text at
http://creativecommons.org/licenses/by/3.0/Newsletter editor: Heini Jarvinen - edrigram@edri.org
Information about EDRi and its members: http://www.edri.org/
European Digital Rights needs your help in upholding digital rights in
the EU. If you wish to help us promote digital rights, please consider
making a private donation.
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