EU Tech Policy Brief: May 2018 Recap

Written by Laura Blanco, Jens-Henrik Jeppesen

This is the May recap issue of CDT’s monthly EU Tech Policy Brief. It highlights some of the most pressing technology and internet policy issues under debate in Europe, the U.S., and internationally, and gives CDT’s perspective on them.

Member States Move to Introduce Pervasive Upload Filtering – Can Parliament Do Better?  

On 25 May 2018, the Council’s permanent representatives committee (Coreper) agreed on a common position on the European Commission’s draft Directive on Copyright in the Digital Single Market. Unfortunately, Member State governments did not deviate substantially from the Commission’s position: upload filters (Article 13), a press publishers’ right, and a limited Text and Data Mining exception were agreed upon. The Council missed the opportunity to propose a forward-looking innovative and harmonised copyright framework. It is now up to the European Parliament to step up and fix this mess ahead of the JURI vote on 20/21 June. We encourage people to use Mozilla’s ChangeCopyright tool to contact parliamentarians. Other platforms include Vox Scientia, which brings together the knowledge community and allows awareness-raising via its “Call to Action” page.

GDPR Has Arrived: What CDT Would Like to See Next

With the General Data Protection Regulation (GDPR) being adopted on 25 May 2018, its true impact on society and businesses is yet to be seen. Will it introduce a new era of individual empowerment or raise new barriers to innovation in technology? CDT’s President and CEO Nuala O’Connor acknowledges that ‘while the GDPR is not perfect, the values it advances are the right ones: individual autonomy and dignity’. The key will be proper and targeted enforcement, but it is already clear that it sets new standards that many companies will seek to apply globally. The United States Congress should move ahead with long-overdue federal privacy legislation that mirrors international standards. This would move us towards creating a global framework on privacy that provides transparency, control, and autonomy to individuals online.

EC Public Consultation on Tackling Illegal Content Online Requires a Human Rights Approach

When we submitted our views on the European Commission’s Inception Impact Assessment, we called on the Commission to conduct and publish a comprehensive collection of data about the nature and volume of content it targets. Without such analysis, we deem it premature to propose any legislative option. Now the Commission is collecting responses to a public consultation on ‘measures to further improve the effectiveness of the fight against illegal content online’, deadline 25 June 2018. We continue to warn that ‘progress’ in tackling various types of content should not only be measured in terms of faster takedown of more content. Also, the Commission has to avoid extending its policy results in de facto censorship of legal political speech. In this respect, we highly recommend that the States and companies abide by the latest report of the UN Special Rapporteur on free expression and regulation of user-generated content online. David Kaye, amongst other recommendations, urges States to reconsider speech-based restrictions.

E-Evidence: European Parliament Appoints Rapporteur

On 17 April, the European Commission (EC) published its draft legislation on E-Evidence to facilitate cross-border law enforcement demands for internet users’ communications content and metadata. The proposed Regulation and Directive set out a great risk to privacy worldwide, given that the proposals would give each EU Member State access for law enforcement purposes to the data of internet users worldwide: each provider in the scope of the Regulation can be compelled to disclose its users’ data no matter where the user is located and no matter the country of citizenship of the user. Discussions in the European Parliament will begin soon, with MEP Birgit Sippel (German/S&D) as rapporteur in the Civil Liberties (LIBE) committee. Going forward in this debate, our main line of advocacy will be that enhanced access to electronic data by law enforcement authorities cannot come at the expense of fundamental privacy and procedural rights protections. We previously set out ten human rights standards to measure the proposal against. As it currently stands, the legislation needs to incorporate additional safeguards and remedies in order to meet those standards.

E-Privacy: Member States Continue to Struggle to Reach Compromise

Ahead of the Council meeting scheduled on 8 June, the Bulgarian Presidency issued its latest progress report on ePrivacy. The report highlights “considerable progress” but at the same time asks for political guidance on several questions. The latest text seems to exclude some machine-to-machine communications and add exceptions to enable efficient security and antivirus services, something we have advocated for. Whether Member States will be able to agree on a text remains unclear. Meanwhile, the newly established European Data Protection Board (EDPB) published a statement on the draft ePrivacy Regulation. The EDPB among other things supports the notion of explicitly banning ‘cookie walls’ or tracking walls. The EDPB argues that use of and access to a communications service cannot require the user to consent to tracking or monitoring with the use of cookies or any other technology. The European Parliament made a similar proposal. This will be one of many controversial issues to be negotiated between Parliament and Council at a later stage. 

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