*The wiretapping problem with 5G is gonna be an espionage gift that keeps on giving.
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EDRi-gram
fortnightly newsletter about digital civil rights in Europe
EDRi-gram 17.13, 3 July 2019
Read online: https://edri.org/edri-gram/17-13/
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Next issue of the EDRi-gram will be published on 17 July - and will be
the last one before the summer break.
During the break, we'll be conducting an evaluation of the newsletter.
What do you think about the EDRi-gram? Please share your opinions and
ideas! Send an email to edrigram@edri.org with the subject line
"Evaluation", and we'll come back to you with some more questions.
The first issue after the summer break will be out on 11 September 2019.
Contents
1. Regulating online communications: Fix the system, not the symptoms
2. EU worries over the possibility of losing wiretapping powers
3. Open letter demands interoperability of the big online platforms
4. Fighting online hatespeech: An alternative to mandatory real names
5. E-Commerce review: Opening Pandora’s box?
6. EU Commission discards criticism of net neutrality enforcement
7. Recommended Action
8. Recommended Reading
9. Agenda
10. About
1. Regulating online communications: Fix the system, not the symptoms
Our digital information ecosystem fails to deliver the communications
landscape needed to sustain our democracies. In a problem analysis, EDRi
member Bits of Freedom introduces and disentangles some of the key
concepts and issues surrounding the dominant role of platforms and the
resulting harms to our freedom of expression.
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Freedom of expression is a human right enshrined in law. It includes the
right to seek, receive and impart information and ideas, without undue
interference or fear of retaliation. It is indispensable for both the
development of individuals as well as for the protection and advancement
of our democratic societies. It is essential for holding those in power
to account.
Our current online communications landscape fails to deliver these
opportunities. A few giant corporations dominate the ecosystem, leading
to the obstruction of our communications, including that of journalists
and civil society, undue control over our public debate, and extremely
limited possibilities for market challengers.
Characteristics inherent to these giant platforms and the ecosystem in
which they operate, make them nearly immune to political, societal and
consumer pressure. Therefore it has proven to be difficult for our
correctional mechanisms - self-regulation, the market, policy makers and
civil society - to sufficiently address the biggest harms and weed out
the most toxic practices.
With the paper “Fix the system, not the symptoms”, Bits of Freedom
wishes to contribute to shifting the discussion from how we can adapt to
these businesses and fix their platforms, towards what a healthy
communications landscape looks like in an increasingly digitalised world
- and how to get there.
Bits of Freedom
https://www.bitsoffreedom.nl/
Regulating online communications: fix the system, not the symptoms
https://bitsoffreedom.nl/fix-the-system
Fix the system, not the symptoms (19.06.2019)
https://www.bitsoffreedom.nl/wp-content/uploads/2019/06/20190619-fix-the-system.pdf
(Contribution by EDRi member Bits of Freedom, the Netherlands)
2. EU worries over the possibility of losing wiretapping powers
5G telecoms networks could render obsolete the “lawful interception”
techniques that police is traditionally using, unless the European Union
and national governments take action. This was revealed in internal EU
documents obtained by EDRi member Statewatch, that has published a new
analysis explaining the issues and calling for a public debate.
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“It is unsurprising that EU officials are concerned about the possible
loss of telephone-tapping powers,” said Chris Jones, a researcher at
Statewatch. “However, the very same technologies they are worried about
will give law enforcement and security agencies disturbing possibilities
for accessing data on individuals in order to track their activities and
behaviour. This has to be seen as part of the same issue as the possible
loss of 'traditional' wiretapping powers. Rather than secretive attempts
to influence standard-setting and law-making, a public discussion is
required about the acceptable limits of surveillance and interception
powers in light of emerging technologies.”
On 7 June 2019, the EU Justice and Home Affairs Council (JHA) held a
discussion on implications of 5G in the area of internal security, a
topic taken up in documents produced recently by Europol and the EU
Counter-Terrorism Coordinator that Statewatch published alongside the
analysis.
The documents warn that various aspects of the technology underpinning
5G communications networks could make traditional wiretapping methods
far more complicated or even render them useless. For example, the IMSI
code – used to identify an individual device – will be encrypted,
meaning “the security authority authorities are no longer able to locate
or identify the mobile device,” according to Europol. 5G networks will
also be able to detect false “base stations” – making it impossible to
use IMSI catchers (or “stingrays”), devices that imitate telecoms
antennae in order to discreetly acquire user data. Other issues such as
network slicing, edge computing, and network function virtualisation
raise their own problems, leading to significant new challenges for law
enforcement agencies wanting access to individuals' data.
Proposals to overcome the limitation of traditional wiretapping methods
range from trying to influence the international bodies responsible for
establishing the relevant technical standards; passing new laws (at both
national and EU level) to enforce police demands; and ensuring a broader
discussion amongst officials both within the EU and beyond, for example
with major surveillance powers such as the US, Australia and Canada.
However, although 5G technologies could limit law enforcement agencies'
access to certain types of data, if the hype is to be believed, one of
5G's main functions will be to enable the generation, storage and
sharing of vast tomes of data on individuals, objects, devices and the
environment through the “internet of things”. In the US, for example,
data from “smart” (i.e. internet-connected) water meters, pacemakers and
in-car safety systems have been used in court proceedings. This presents
significant new opportunities for police and security agencies, even if
they lose access to other long-standing surveillance techniques.
The analysis argues that both the possibility of law enforcement
agencies losing some of their current powers - at the same time as vast
new surveillance possibilities are opened up - should be a matter for
public debate.
Statewatch
http://statewatch.org/
Analysis: A world without wiretapping? Official documents highlight
concern over effects 5G technology will have on “lawful interception”
(05.06.2019)
http://statewatch.org/analyses/no-343-5g-telecoms-wiretapping.pdf
Indicative programme - Justice and Home Affairs Council of 6 and 7 June 2019
https://www.consilium.europa.eu/en/press/press-releases/2019/06/04/indicative-programme-justice-and-home-affairs-council-of-6-and-7-june-2019/
EU Counter-Terrorism Coordinator: Law enforcement and judicial aspects
related to 5G (06.05.2019)
http://statewatch.org/news/2019/jun/eu-council-ctc-5g-law-enforcement-8983-19.pdf
Position paper on 5G by Europol (11.04.2019)
http://statewatch.org/news/2019/jun/eu-council-europol-position-paper-5g-8268-19.pdf
(Contribution by EDRi member Statewatch, the United Kingdom)
3. Open letter demands interoperability of the big online platforms
On 21 May 2019, EDRi observer La Quadrature du Net, along with 70 other
organisations, including some EDRi members, sent a letter asking the
French government and members of the Parliament to force web giants
(Facebook, Youtube, Twitter...) to be interoperable with other online
services. The purpose is to allow users of these platforms to leave them
for other services, while still being able to communicate with people
that decided to stay on it - as, for example, this is already the case
with emails, with which people are able to communicate regardless of
whether they use different email providers like Protonmail, Gmail or RiseUp.
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The letter coincides with the French Parliament preparing to vote on a
law requiring online platforms to remove hate speech 24 hours after
having received a notification. In case they repeatedly fail to do so, a
French administration would have the power to impose a fine up to 4 % of
their global revenue.
Criticising the dangers of censorship and centralisation of the internet
that could result from such a law, the signatories of the open letter
recommend that the Parliament does not address the symptoms but the
causes of the dissemination of hate speech. One of the causes is the
structure and the business model of these platforms that promotes and
facilitates the dissemination of hate speech. As the platforms are built
on the “attention economy”, it is in their interest to host as much of
any kind of engaging content as possible.
The letter explains that forcing web’s giants to become interoperable,
based on open standards, would allow people that are “captives” of these
platforms to escape them. They would be able to join other services that
are more respectful of users’ personal data and freedoms, and not making
profits on surveillance and targeted advertising. Outside of these
platforms, millions of people are already united across interoperable
services such as Mastodon, Diaspora, and PeerTube — notably through
ActivityPub, an interoperability protocol published by the World Wide
Web Consortium (W3C) in 2018.
The proposition has been well received by experts, journalists, and some
members of the French Parliament. Laetitia Avia, the rapporteur of this
law, however, has refused to support it, preferring to promote the
solution of fast removal of contents. The French government has also
rejected the idea of interoperability presented in the letter, stating
that it's “excessively aggressive for the business model of large
platforms”, and refusing to see the connection with hate speech.
Nevertheless, as some members of the Parliament have proposed amendments
on interoperability, the next session in Parliament on 3 July will
clarify the results of this first campaign.
Should the Parliament reject the idea, La Quadrature du Net will,
together with the signatories of the open-letter, continue to promote
the idea of interoperability, in France and at a European level, with
the help of EDRi members. It's urgent to give everyone the ability to
escape from the surveillance and toxicity of these giant platforms and
to join free, decentralised and human-scale services — without losing
their social links by doing so.
The open letter remains open for signatures from organisations and
companies. Individuals are strongly encouraged to spread and promote it
widely. To sign the letter, please write at contact@laquadrature.net,
with the email subject “Signing interoperability letter”, and noting the
name of your organisation in the email.
La Quadrature du Net
https://www.laquadrature.net/
For the interoperability of the web’s giants: An open letter from 70
organisations (14.06.2019)
https://www.laquadrature.net/en/2019/06/14/for-the-interoperability-of-the-webs-giants-an-open-letter-from-70-organisations/
French online hate speech bill aims to wipe out racist trolling (29.06.2019)
https://www.theguardian.com/world/2019/jun/29/french-online-hate-speech-bill-aims-to-wipe-out-racist-trolling
Report to strengthen the fight against racism and antisemitism online
(only in French, 28.09.2018)
https://www.gouvernement.fr/rapport-visant-a-renforcer-la-lutte-contre-le-racisme-et-l-antisemitisme-sur-internet
ActivityPub
https://en.wikipedia.org/wiki/ActivityPub
Imposing interoperability on platforms? Doubts and prudence of Cédric O
(only in French, 05.06.2019)
https://www.nextinpact.com/news/107951-imposer-linteroperabilite-aux-plateformes-les-doutes-et-prudence-cedric-o.htm
(Contribution by EDRi observer La Quadrature du Net, France)
4. Fighting online hatespeech: An alternative to mandatory real names
The internet facilitates debates: People around the globe can connect at
almost zero cost, and information and opinions that would otherwise
hardly be noticed can go viral through social media. However, services
like Twitter and Facebook can also be used for targeted defamation.
Especially people who belong to minorities or endorse views outside the
mainstream have described grave verbal attacks. Women who are active in
politics often face rape threats. Such abuses of online communication
should not be tolerated in a democracy.
An obligation for real names is not a solution
In response, “number plates” for the internet have been proposed -
people should be required to disclose their real names before they can
participate in forums and on social media. However, such a “real name
obligation” would achieve very little in terms of protections against
verbal abuse online, and at the same time, it would cause serious
collateral damage.
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The arguments against an obligation for real names are manifold: For
example, its supporters fail to notice that there has been an obligation
for real names on Facebook for many years, which many users simply
ignore. It's doubtful whether such an obligation would even be
admissible under European law. In any case, such a policy would only
apply at the national level. Should platforms simply hide all posts by
users from other countries where real names are not required by law?
Everyday experience and recent studies show that a remarkable number of
users do not shy away from criminal online activities, even if they are
acting under their real names. This is because the problem with pursuing
crimes online is not the anonymity of the offenders; it is the
irritatingly low level of engagement from the responsible authorities.
If it's possible to commit such crimes without any risk of consequences,
this will impact the popular sense of right and wrong.
The biggest disadvantage of a real name obligation is that it would
silence those who depend on anonymous or pseudonymous communication.
Conservatives often assume that such a need only exists in authoritarian
states. However, even in a democracy many people have comprehensible
reasons why they would not or cannot communicate openly. For example,
people who engage against Nazis can hardly make this public in some
regions of Germany without facing significant risk of physical harm.
Interestingly, even almost all German judges and prosecutors who
actively use Twitter prefer to do so under a pseudonym.
Better: Target the accounts
Introducing a real name obligation would be a dangerous error of
judgement, but legislators do need to act. Because online bullies cannot
always be identified, the focus should be on their weapons – their
accounts, which they use to undertake verbal acts of violence. A
judicial process should be introduced in which victims or victim
protection organisations can request for accounts that are abused for
unlawful speech to be blocked. Courts of law could impose blockages on
individual accounts for a certain period of time – or permanently,
especially in recurrent cases. The platforms would be barred from
showing these accounts to users in a specific geographical location.
Such a judicial process would have many advantages: The identity of the
people behind an account would not matter anymore. This would also be an
effective course of action against account holders who are known but out
of reach, for example because they are located abroad. Contrary to the
approach of the Network Enforcement Act (NetzDG) it would not be the
platforms who decide, often in dubious ways, which articles are illegal
– this would be left to an independent court. Courts have demonstrated
that they are capable of making such decisions – in particular, there
are courts that specialise in press law and are accustomed to rule even
on delicate freedom of speech questions within a few hours.
The NetzDG made social media platforms “addressable”
Of course, such a judicial process would raise questions: Who would be
the subject of such a request if the responsible person is not known?
With a bit of creativity, those details can be resolved. In the US a
judicial petition against “John Doe” is filed in such cases. This
anonymous party would be represented in court by the platform that would
be responsible to implement any blockages.
Each of the large platforms has already registered a point of contact in
Germany pursuant to § 5 NetzDG, so that they are always reachable for
courts of law. This procedure could also ensure that the people behind
an affected account can be heard in court, if the law would oblige
platforms to forward the petition to them (via email for example). This
would give the account holder the option to reveal their identity and
take over the judicial process under their own name.
Legislative competence probably with the Federal Government
The law to create such a judicial process could be enacted by the German
Federal Government. This is not about a new regulation on which content
would be admissible online – this would be for the Federal States to
enact and would require an arduous update of the Interstate Broadcasting
Treaty (Rundfunkstaatsvertrag). The Federal Government could base this
law on its competences to regulate judicial procedures as well as
telemedia law. The Federal Government should urgently take this
opportunity and create a “Protection against Digital Violence Act”,
allowing for accounts that publish unlawful content to be blocked. The
onus is still on the Federal States to become more effective in pursuing
supposedly lesser online offences, which is within their legal purview.
A German version of this article was first published at
https://background.tagesspiegel.de/statt-klarnamen-digitales-gewaltschutzgesetz
EU action needed: German NetzDG draft threatens freedom of expression
(23.05.2017)
https://edri.org/eu-action-needed-german-netzdg-draft-threatens-freedomofexpression/
(Contribution by Ulf Buermeyer, EDRi member Gesellschaft für
Freiheitsrechte - GFF, Germany; translation from German into English by
EDRi volunteers Stefan and Sebastian)
5. E-Commerce review: Opening Pandora’s box?
The next important battle for our rights and freedoms in the digital
sphere is looming on the horizon. While the public debate has recently
focused on upload filters for alleged copyright infringements and online
“terrorist” content, a planned legislative review will look more broadly
at the rules for all types of illegal and “harmful” content.
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This review aims to update the rules on how online services, such as
social media platforms, should or should not delete or block illegal and
“harmful” content. A reform might also bring changes to how online
services could be held liable when such content is not taken down. The
big question is: will the review of the E-Commerce Directive (ECD) open
Pandora’s box and become one of this decade’s biggest threat to
citizens’ rights and freedoms online - or will it be a chance to clarify
and improve the current situation?
Christchurch, copyright and election manipulation
The recently adopted Copyright Directive and the draft European rules
for the removal of terrorist content online initiated the creation of
sector-specific rules for content removals.
Events like the Christchurch tragedy, potential disinformation threats
during the European elections and hateful comments from increasingly
radicalised right-wing extremists after the murder of a German
pro-migrant politician contributed further to the debate surrounding
illegal and "harmful" online content.
These events led to a multiplication of calls towards online services to
“do more” and to “take more responsibility” for what is being uploaded
to their servers. Several countries have started discussions about the
adoption of national rules. For instance, following the German example,
France has just introduced a law against online hate and the UK
published a controversial Online Harms Paper.
E-Commerce Directive: What is it and its unavoidable reform
Adopted nearly 20 years ago, the E-Commerce Directive sets up liability
exemptions for hosting companies for content that users share on their
networks. Until very recently, these rules applied horizontally to all
sorts of illegal content, including copyright infringements, hate
speech, and child abuse material. The current rules for take-downs and
removals are therefore (indirectly) defined by the ECD.
While the Directive is not perfect and created a few issues, mainly due
to lack of clarity, its safe harbour provisions encouraged the
protection of the fundamental rights of users, in particular the freedom
of expression and that of information.
Since the adoption of the ECD, however, the landscape of services that
might or might not fall under liability exemptions has drastically
changed. Notably, cloud services and social media platforms became very
important players and some have gained significant market power.
Currently, a small number of dominant platforms have a high impact on
individuals’ rights and freedoms, our societies and on our democracies.
The nature of the internet has also vastly changed in the past 20 years
towards an increasingly participatory community. As a result, the amount
of user-generated content has increased exponentially. On the other
hand, we witness more government pressure on companies to implement
voluntary mechanisms against alleged illegal or “harmful” content. These
two parallel developments resulted in an increasing number of wrongful
removals and blocking of legitimate speech.
In the past months, the Directorate-General for Communications Networks,
Content and Technology (DG Connect) of the EU Commission already started
the process of exploring policy options for content moderation that will
be presented to the incoming College of Commissioners. A reform of the
ECD to attempt the harmonisation of liability exemptions and content
moderation rules seems to have become unavoidable.
The upcoming reform can therefore be both a chance and a potential trap
for policy-makers. On one hand, it offers the opportunity to create
legal certainty and introduce safeguards that will enable users to enjoy
their rights and freedoms. On the other, the reform can be a trap if
policy-makers embrace blunt one-size-fits-all solutions that avoid real
solutions for societal issues and instead lead to massive collateral
damages.
Filters Incorporated (09.04.2019)
https://edri.org/filters-inc/
e-Commerce Directive
https://ec.europa.eu/digital-single-market/en/e-commerce-directive
EU Parliament deletes the worst threats to freedom of expression
proposed in the Terrorist Content Regulation (17.04.2019)
https://edri.org/eu-parliament-deletes-worst-threats-to-freedom-of-expression-terrorist-content-regulation/
Phantom Safeguards? Analysis of the German law on hate speech NetzDG
(30.11.2017)
https://www.law.kuleuven.be/citip/blog/phantom-safeguards-analysis-of-the-german-law-on-hate-speech-netzdg/
E-Commerce directive: ensure freedom of expression and due process of
law (17.11.2010)
https://edri.org/edrigramnumber8-22edri-e-commerce-directive-consultation/
(Contribution by Kirsten Fiedler, EDRi)
6. EU Commission discards criticism of net neutrality enforcement
On 30 April 2019, EDRi and 31 other civil rights organisations sent an
open letter to the EU Commission and BEREC. The letter criticised the
lack of enforcement of current net neutrality rules in Europe. The
signatories also emphasised that the EU finally needs to act against the
widespread use of zero-rating practices. Zero-rating favours internet
traffic from certain companies by billing it to customers at a lower
(zero) rate while discriminating against everybody else. The letter also
highlighted that many EU member states do not impose effective penalties
against infringers of net neutrality.
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Only two weeks later, we addressed a second letter to the EU Commission,
warning against the increased use of so-called Deep Packet Inspection
(DPI) by telecom operators. DPI is a highly intrusive technology
allowing telcos to scan and classify your online content with high
granularity, for instance in order to slow down certain internet traffic
or bill certain content differently. Of course the technology could also
be used to block certain types of traffic such as video streaming or
virtual private networks (VPNs).
Commission does not seem to plan action
Unfortunately, the EU Commission’s official responses to those letters
have not addressed the points raised by civil society.
In its first response, the EU Commission acknowledges “that the types
and levels of sanctions differ widely between Member States” and says it
was “monitoring how the existing sanctioning powers are used in
practice”. However, no concrete actions or plans are proposed that could
tackle the lack of enforcement in Europe. In reality, almost no
penalties against infringing telcos have been pronounced so far and
those that were issued have been too low to lead to meaningful change.
Worse, Portugal and Ireland still have not enacted any penalties for net
neutrality infringements at all despite their obligation to do so under
EU law.
In its second response, while acknowledging the illegality of slowing
down or discriminating traffic in principle, the EU Commission does not
seem to think that zero-rating as practised by European telcos today is
a problem. Instead, the Commission says, this should be decided on a
case-by-case basis – which in practice means that telcos can zero-rate
as they please.
Net neutrality violations still happening
As a recent study carried out by EDRi member epicenter.works shows, net
neutrality violations have spread across the EU in the past years, the
response of national regulators is inconsistent or lacking, and the EU
Commission seems to largely ignore the problem.
The European net neutrality guidelines are in the process of being
updated and the EU Commission says it plans to publicly consult civil
society during that process “so that their interpretation and their
arguments will be expressed and taken into account”. EDRi and its member
organisations will of course participate in these consultations and hope
that they will indeed be taken into account.
Response of the EU Commission to our open letter on the lack of
enforcement of 30 April 2019 (PDF)
https://edri.org/wp-content/uploads/2019/06/20190517_commission_
reply_open_internet.pdf
Response of the EU Commission to our open letter against Deep Packet
Inspection of 15 May 2019 (PDF)
https://edri.org/wp-content/uploads/2019/06/20190618_commission_
reply_dpi.pdfR
Net neutrality wins in Europe! (29.08.2016)
https://edri.org/net-neutrality-wins-europe
Zero rating: Why it is dangerous for our rights and freedoms (22.06.2016)
https://edri.org/zero-rating-why-dangerous-for-our-rights-freedoms
A study evaluates the net neutrality situation in the EU (13.02.2019)
https://edri.org/a-study-evaluates-the-net-neutrality-situation-in-the-eu
(Contribution by Jan Penfrat, EDRi)
7. Recommended Action
Join EDRi as Communications Intern!
The EDRi office in Brussels is looking for a Communications Intern to
work with us starting from September on social media, publications,
campaigning, press work, production of written materials, and community
coordination. Send your application by 17 July 2019!
https://edri.org/communications-intern-september-2019
Get involved in BornHack 2019!
Join this year's BornHack outdoor tent camping festival for hackers,
makers, and anyone interested in technology and society - submit a talk,
host a workshop, play some music, or volunteer to set up the space!
https://bornhack.dk/bornhack-2019/program/call-for-participation/
8. Recommended Reading
An op-ed from the future: I shouldn’t have to publish this in the New
York Times (24.06.2019)
https://www.nytimes.com/2019/06/24/opinion/future-free-speech-social-media-platforms.html
ICANN eliminates .org domain price caps despite lopsided opposition
(01.07.2019)
https://arstechnica.com/tech-policy/2019/07/icann-eliminates-org-domain-price-caps-despite-lopsided-opposition/
9. Agenda
31.07.2019, Toronto, Canada
Citizen Lab Summer Institute on Monitoring Internet Openness and Rights
https://citizenlab.ca/summerinstitute/2019.html
08.08.2019, Gelsted, Denmark
BornHack 2019
https://bornhack.dk/bornhack-2019/
21.08.2019, Mildenberg, Germany
CCCamp 2019
https://events.ccc.de/
13.09.2019, Berlin, Germany
Netzpolitik-Conference
https://netzpolitik.org/
08.11.2019, Brussels, Belgium
Freedom not Fear 2019
https://www.freedomnotfear.org/
10. About
EDRi-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
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