archief:edri_gram_nieuwsbrief:09_02_11
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+ | ====== EDRI-gram Nieuwsbrief - 9 februari 2011 ====== | ||
+ | ===== 1. Data retention law provisions declared unlawful in Cyprus ===== | ||
+ | The Cyprus Supreme Court decided on 1 February 2011 that some of the provisions of Law 183 (I) / 2007 on disclosure of telecommunications data are unlawful, as they breach the Cyprus Constitution and its jurisprudence, | ||
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+ | Law 183 (I) / 2007 (Retention of Telecommunication Data for Purposes of Investigation of Serious Criminal Offences Law of 2007) was adopted by Cyrpus on 31 December 2007 as the national implementation of the EU Data retention directive. | ||
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+ | In the case brought to the Supreme Court, four people claimed that Articles 4 and 5 of the national law, that provided police forces access to the retained data, were unlawful. The court considered that the articles in question go beyond the provisions of the EU Directive which does not address the issue of access to the retained data. | ||
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+ | Therefore, the court considered it may check the constitutionality of these articles, especially in relation with Art 15 of the Cyprus Constitution (right to privacy) and article 17 (confidentiality of communications). | ||
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+ | Based on the Cyprus Constitution, | ||
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+ | The court considered that three of the four court orders for disclosing telephone numbers and calls were illegal and should be annulled. In the case of the fourth person the case was rejected, since the person was imprisoned and banned for using a mobile phone. | ||
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+ | It is unclear how this decision will affect the law and its application. According to a statement of police spokesman Michalis Katsounotos to Cyprus Mail, "the decision will be studied in depth by the assistant police chief and all under investigation or criminal proceedings will be identified for which a court order was secured for the disclosure of telecommunications data, so that in consultation with the Attorney-general, | ||
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+ | ===== 2. Commission' | ||
+ | On 2 February 2011, the European Commission released its proposal for a directive on the use of Passenger Name Records. This would require airlines flying into and out of the EU to give travellers' | ||
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+ | The document is a follow up to the proposal for PNR in 2007, for which the European Parliament, led by rapporteur Sophia in't Veld (ALDE, Netherlands), | ||
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+ | With a number of databases related to travellers already in existence, such as the Schengen Information System (SIS), the Visa Information System (VIS) and the Advanced Passenger Information system (API), many members of European Parliament were and are sceptical about the necessity of a Passenger Name Record regime. | ||
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+ | The scope of the purpose of PNR is widened. Whereas, in the 2007 document, the purposes were preventing and combating terrorist offences and organised crime, now it extends to " | ||
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+ | The processing of the PNR data outlined in Article 4 stipulates that the Passenger Information Unit (PIU -the body responsible for the storage and management of PNR databases), can use the data for profiling purposes, an issue that has been highly criticised in Parliament. The data can also be compared with other " | ||
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+ | The document indicates that it will " | ||
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+ | Furthermore, | ||
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+ | The document also prohibits the collection, storage and processing of " | ||
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+ | MEP Sophia in't Veld seems pleased with the document, saying, "we will closely scrutinise the proposals, but at first glance there is a substantial improvement compared to the previous proposals" | ||
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+ | Other members of the European Parliament are not so optimistic. EPP member Manfred Weber (Germany) is sceptical of the necessity of PNR, saying, "there are deficits in the usage of current data. So why should we collect even more mass data?" | ||
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+ | "The EU-US PNR agreement is already bad enough", | ||
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+ | Claude Moraes (S&D, UK) has concerns about the Commission' | ||
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+ | Commissioner Malmström is likely to meet with the LIBE committee in the next few weeks to discuss the contentious elements of the proposal. The entire negotiation process in the Council and the Parliament is expected to take around two years. | ||
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+ | ===== 3. German study finds the data retention ineffective ===== | ||
+ | A study of police statistics published by the German Federal Crime Agency on 26 January 2011, finds telecommunications data retention ineffective for the prosecution of serious crime. | ||
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+ | An analysis of Federal Crime Agency statistics published on 27 January 2011 by German civil liberties NGO AK Vorrat reveals that data retention, while in force, did not make the prosecution of serious crime any more effective. With data retention in effect, more serious criminal acts (2009: 1 422 968) were registered by police than before (2007: 1 359 102), and a smaller proportion were cleared up (2009: 76.3%) than before the introduction of blanket retention of communications data (2007: 77.6%). Likewise, after the additional retention of Internet data began in 2009, the number of registered Internet offences surged from 167 451 in 2008 to 206 909 in 2009, while the clear-up rate for Internet crime fell (2008: 79.8%, 2009: 75.7%). | ||
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+ | According to AK Vorrat, user avoidance behaviour can explain the counterproductive effects of blanket data retention on the investigation of crime. In order to avoid the recording of sensitive information under a blanket data retention scheme, users begin to employ Internet cafés, wireless Internet access points, anonymisation services, public telephones, unregistered mobile telephone cards, non-electronic communications channels and the like. This avoidance behaviour cannot only render retained data meaningless but also frustrate more targeted investigation techniques that would otherwise have been available to law enforcement. Overall, blanket data retention can thus be counterproductive to criminal investigations, | ||
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+ | * [[http:// | ||
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+ | ===== 4. UK Supreme Court to hear DNA cases ===== | ||
+ | Following a decision of the European Court of Human Rights (ECtHR), the UK Coalition Government has recently stated its intention to dramatically reduce the retention period of DNA data. In 2008, the ECtHR ruled that a blanket policy of retaining DNA samples of people who were not charged or convicted of offences indefinitely was breaching human rights. | ||
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+ | The UK Supreme Court has recently held hearings in two cases related to the retention of DNA, fingerprints and other information by the Police of Metropolis of two individuals, | ||
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+ | "It makes good sense to hold the DNA of dangerous convicts, but holding intimate information on thousands of innocents is discriminatory as well as intrusive. The high numbers of black men arrested and never charged explains but doesn' | ||
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+ | The Supreme Court will decide whether the respective data retention violates the rights of the plaintiffs under Article 8 of the European Convention on Human Rights. The decision will probably largely influence the actions taken further on by the UK authorities. | ||
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+ | The Coalition expressed the intention to introduce a similar policy to that in Scotland where only the samples of people suspected of serious offences are retained and only for a limited period of time. | ||
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+ | "The Government is committed to adopting the protections of the Scottish model for DNA retention. In particular, we are examining whether the provisions of section 23 of the Crime and Security Act 2010 should be brought into force. This would empower the National DNA Database Strategy Board to issue binding guidance to chief police officers on the types of case in which deletion would be appropriate," | ||
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+ | For the time being, according to the statistics, one out of four people whose DNA data are retained by the UK police forces are innocent and the data are retained indefinitely. | ||
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+ | In January 2011, Northern Ireland' | ||
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+ | "The lengthy, perhaps indefinite, retention by the police of the Applicant' | ||
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+ | [[http:// | ||
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+ | ===== 5. Spanish sports streaming domain seized by US authorities without warning ===== | ||
+ | The US authorities have recently seized, without any warning, the domain names of several sports streaming sites over alleged copyright infringements within the " | ||
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+ | In July 2010, the Department of Justice (DOJ) and Homeland Security' | ||
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+ | Among the recently seized domains, DOJ and ICE have included Rojadirecta.org, | ||
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+ | Furthermore, | ||
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+ | Rojadirecta, | ||
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+ | This seizure of a site domain already declared legal in Spain, raises concerns related to generic domain names that are controlled exclusively by US companies. Without even contacting the site owners, the US authorities may obtain a seizure warrant from a District Court judge and use this to take control over the domains in question even if the sites are not based in the US, which provides US censorship powers over a great part of the Internet. | ||
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+ | Besides Rojadirecta.org, | ||
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+ | The sites in question had the option to move to alternative domains, which they did in a short time. Rojadirecta is presently available on several alternative domains, such as .es, .in and .me. Channelsurfing.net, | ||
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+ | ===== 6. France: Increased powers for Hadopi authority ===== | ||
+ | The Hadopi law continues to develop as the French Government pushes last minute amendments to be passed by the Parliament. | ||
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+ | Thus, the French National Assembly adopted on 1 February 2011, late at night, an amendment filed at the last moment by the Government, that would allow French three strikes authority (Hadopi) to pay private-sector companies for carrying out online surveillance and filtering. | ||
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+ | Amendment 151 to the draft Law on Simplifying and Improving the Quality of Laws extends Hadopi powers to " | ||
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+ | Although it was passed in a rush and late at night, the amendment did not go unnoticed. The legal commission of the General Assembly showed concerns regarding the constitutionality of the amendment stating it had no time to examine it and asked for its withdrawal. Deputy Alain Vidalies warned that the opposition would take the issue to the Constitutional Court, considering the amendment as a " | ||
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+ | Another draft decree related to Hadopi was on CNIL's agenda on 20 January 2011 and is now to be examined by the State Council. The decree, already modified once in October 2010, introduces means to interconnect ISPs' subscriber files with infringement information received by the Hadopi authority and makes electronic transmissions of all files from Hadopi to courts. | ||
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+ | This modification fulfils Hadopi' | ||
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+ | The current procedure is that the files are verified first by the Commission for the Protection of Rights (CPD) before being sent to the prosecutor. However, the president of CPD stated in an interview at the end of 2010 that he supported the idea that the " | ||
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+ | The transmission of Hadopi files to the prosecutor offices is already covered by a procedural decree of July 2010 which says that the files are sent "to the prosecutor of the Republic attached to the competent high court." | ||
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+ | The idea is to make these transmissions electronic and to allow the courts to send their decisions electronically. Hadopi wants to make certain that a decision to suspend a subscriber' | ||
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+ | * [[http:// | ||
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+ | ===== 7. ENDitorial: Internet blocking and damage to child protection ===== | ||
+ | The child protection industry has been campaigning for years for the introduction of EU-wide mandatory blocking of websites accused of being illegal by the police, by independent authorities, | ||
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+ | Unfortunately, | ||
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+ | Every country in the world except Somalia has signed and ratified either the UN Child Rights Convention or its Optional Protocol on the sale of children, child prostitution and child pornography. The Convention requires governments to take all appropriate national, bilateral and international measures to prevent the exploitative use of children in " | ||
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+ | We are told that some countries leave child abuse websites online for months. Where is the public condemnation from the United Nations for these blatant breaches of its most successful binding Convention? Where are the shadow reports from child protection organisations condemning those countries for gross failures to protect the weakest in society? Where are the sanctions from governments bound under international law to take "all appropriate national, bilateral and international measures to prevent the abuse"? | ||
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+ | The problem is that the Convention and the Optional Protocol have no enforcement mechanisms. They can be signed and forgotten and states can move on to the next soundbite. | ||
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+ | We are told that web blocking is meant to be a " | ||
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+ | So, why does the child protection industry insist on promoting blocking? It would be unfair to say that they are funded by governments and therefore unwilling to criticise them. The issue appears to be based more on misunderstandings than anything else. If we look at one particular child campaigner' | ||
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+ | " | ||
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+ | A system which leaves the material online is not a form of deletion. Nobody has been able to indicate any statistical difference between the number of - or trends in - reports to child abuse hotlines in countries with or without blocking. | ||
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+ | It has, therefore, no discernible impact on the great majority of internet users. In any event, the great majority of internet users never find child abuse material and, according to statistics from Internet hotlines. Furthermore, | ||
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+ | He goes on to say: " | ||
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+ | It is difficult to know which opponents of blocking might be referred to here. Innocent people very rarely access the material and there is no evidence that blocking stops this to an appreciable extent. What we object to are measures which take the pressure off governments to take real action against websites containing evidence of real abuse and which destroy fundamental rights in the process | ||
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+ | He then explains that: "A number of opponents of blocking make references to "the thin end of the wedge" and to " | ||
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+ | This fails to recognise that this is not a "stand alone" argument. The " | ||
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+ | He continues: "More reprehensible in some ways are those who make no attempt to deny that blocking child abuse images is a good thing to do. Instead, and often without any apparent embarrassment, | ||
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+ | Terrorism, anorexia or suicide related materials frequently get mentioned as examples of the types of content it is known others are pushing to be blocked." | ||
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+ | Having worked on this issue for several years, I have never once heard someone make this argument. Blocking is dangerous, counter-productive and useless for child abuse images, whether other types of site are blocked does not change this. | ||
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+ | He adds: "Why do they find it difficult to agree that they should be blocked pending their deletion? It does not add up." | ||
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+ | Having seen governments sign, ratify and forget the UN Child Rights Convention, the Convention' | ||
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+ | There MUST be investigations in order to identify and rescue as many children as possible. There MUST be investigations in order to find and prosecute both the owners and users of such sites. Blocking will immediately warn the people behind the websites that they have been spotted by law enforcement authorities and they can act to protect themselves. Why would child protection organisations want this? | ||
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+ | He says: "The techie world generally dislikes solutions which it believes are " | ||
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+ | The problem that the techie world has is the same as the one that the political world increasingly has with blocking. Techies are parents too and therefore understand that all efforts to protect children must be effective. They understand that every failed initiative has real human consequences. If a policy has demonstrable costs and no demonstrable benefits, it must be avoided. | ||
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+ | He continues: " | ||
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+ | Nobody says that blocking of child abuse images will directly cause this. | ||
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+ | However, " | ||
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+ | Sadly and disappointingly, | ||
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+ | One of the many clear analyses of why the " | ||
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+ | To finish, and bearing in mind that total lack of any benefit of blocking and the real dangers to child protection that blocking presents, I will finish with two quotations from the campaigner that sum up the debate very neatly: | ||
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+ | "If your starting point is the best interests of the child there is no way you can end up concluding that, actually, after a lot of careful thought, a great deal of soul searching and hand wringing it is best to leave pictures of children being raped on full public view for a little while longer." | ||
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+ | "This argument turns sexually-abused children into bargaining chips." | ||
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+ | This is completely and reprehensibly true. It is incomprehensible to find oneself trying to defend measures that will force governments to take proper action against child abuse, being fought every step of the way by those people whose job it is to do this. | ||
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+ | ===== 8. Recommended Action ===== | ||
+ | With new data protection challenges arising everyday, the Convention is being overhauled to meet new realities and time is now ripe to think about modernising it. The technological developments of the information and communication society as well as the globalisation of exchanges lead to unexplored challenges and potential new risks for the protection of human rights and fundamental freedoms. Is Convention 108's protection still in line with today' | ||
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+ | ===== 9. Recommended Reading ===== | ||
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+ | ===== 10. Agenda ===== | ||
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archief/edri_gram_nieuwsbrief/09_02_11.txt · Laatst gewijzigd: 2017/09/11 21:36 door KapiteinG