EU Tech Policy Brief: September 2017

This is the September 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.

Copyright in the DSM: Run-up to the Parliamentary Vote in Leading Committee JURI

The Legal Affairs (JURI) Committee, which leads the Copyright in the Digital Single Market (DSM) proposal in the European Parliament, is scheduled to vote in October, although it is likely to be further delayed. We’ve been disheartened by the latest series of developments before the summer break, particularly with the adopted Opinions in the Committees on Industry, Research and Energy (ITRE) and Culture and Education (CULT). The adopted amendments in both committees would make what we already consider a bad proposal worse. Moreover, the change of leadership in JURI, with MEP Axel Voss as new Rapporteur, is far from promising: the EPP joint position practically mirrors that of the European Commission, missing the opportunity to advance a forward-looking copyright reform. This month in the European Parliament, the Civil Liberties (LIBE) committee will be the last to vote and adopt its Opinion, which will focus on Article 13.

Copyright in the DSM: Estonian Council Presidency Compromise Proposal

Statewatch recently leaked a Council document from the Estonian Council Presidency outlining its first Compromise Proposal regarding Article 1, 2, and 10 to 16 of the Commission’s proposed Copyright Directive. In this document, the Estonian Presidency presents several options when it comes to the most controversial provisions: Article 11 (ancillary copyright for press publishers) and Article 13 (upload filter obligation for online platforms). On Article 11, the Estonians appear divided on the appropriate solution going forward. While one of the options would negatively expand the new right from digital publications to publications in any medium, the other option aims to tackle cases of copyright infringement by creating a presumption for publishers of press publications to facilitate the enforcement of their rights before courts, a solution which we continue to support. Regarding Article 13, unfortunately both options presented by the Estonian Presidency seem to fully support the idea of mandatory upload filters for online platforms as proposed by the Commission, going against intermediary liability safeguard provisions enshrined in the e-Commerce directive. This compromise text is deeply troubling, as it indicates an attempt to do away with the existing intermediary liability regime for online platforms through the Copyright in the DSM Directive, posing a direct threat to fundamental freedoms online. The concern over the legality of Article 13 has also been voiced by six Member States (Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands) in another document leaked by Statewatch.

ePrivacy Regulation: LIBE Submits over 800 Amendments  

The European Parliament continues to abide by the ambitious timeline set by the European Commission to have the ePrivacy Regulation in place by May 2018. In late July, the Civil Liberties (LIBE) committee leading the proposal in Parliament submitted over 800 amendments. Amongst the most prominent amendments is the proposal to introduce “legitimate interest” as a legal ground for the further processing of data, other than consent [AMs 205, 212, 475, 476, 568]. MEPs Michal Boni (EPP, Poland), Axel Voss (EPP, Germany), and Daniel Dalton (ECR, UK) are among those supporting the introduction of legitimate interest under Articles 6 and 8 and corresponding recitals. While some fear that the legitimate interest exception will be too broad, we believe that DPAs should have the authority to to make determinations about the rights of the data subject and the legitimate interest of the processor. This would be consistent with GDPR. However, this promises to be a contentious issue, since ePrivacy LIBE Rapporteur Marju Lauristin does not see any reason to include legitimate interest. Overall, while LIBE is set to vote in committee in October, there is still many points to discuss, particularly at the Member State level.

European Commission Notice-and-Action Initiative: From Consultation to Legislation?

CDT and others have argued in our criticism of the DSM Copyright Directive Article 13 that, rather than undermine the liability protections in the E-Commerce Directive, the European Commission should move to establish more coherent and consistent guidance for notice-and-action procedures. Properly framed, this could help clarify the responsibilities of intermediaries and notifiers, protect against excessive removals and ensure transparency and accountability. We made these suggestions in a consultation response in 2012, and will do so again. Several leading Members of the European Parliament asked Commission Vice President Ansip to bring out legislation in this vein, which is something we would fully support.

New Digital Commissioner to Set Up New Expert Group on ‘Fake News’

On 29 August, the recently appointed digital Commissioner, Ms. Mariya Gabriel, informed the press that she’s planning to set up a high-level expert group on fake news as one of her first initiatives under her mandate. This will be accompanied by a public consultation that is likely to be published towards the end of the year, and which will play a role in deciding whether a legislative proposal is needed in this area. CDT will participate in the debate, advocating the principles as laid out in the Joint Declaration issued earlier this year by the freedom of expression representatives of the United Nations (UN), the Organization for Security and Co-operation in Europe (OSCE), the Organization of American States (OAS) and the African Commission on Human and Peoples’ Rights (ACHPR).

New Focus on the Role of Tech Companies in Dealing with ‘Controversial’ Content

In August, a demonstration by white supremacists in Charlottesville, Virginia, during which a counter-protester was killed, brought new focus on the issue of hateful content online, and how technology companies should deal with such content. As a result of the incident, several companies terminated services for a well-known white nationalist website, The Daily Stormer.

This ignition of concern over what should not be allowed on the internet re-sparked the debate of whether and how to regulate content in Europe. Dealing with such content, while at the same time protecting free expression online, was the topic of an invitation-only convening organised by CDT and a leading Member of the European Parliament. We brought together Parliament representatives, Commission and Member State officials, academic experts, industry and civil society. The debate feeds into ongoing European debates about radicalisation, hate speech, and other controversial and/or illegal content, and how companies, lawmakers and the authorities should respond.

CDT Previews Research on Automated Content Moderation at Brussels Event

CDT has consistently called for the rejection of the Commission’s proposal mandating that a broad set of content hosts put into place automated content filtering to prevent copyright infringement. New research undertaken by CDT and previewed at an event at the Centre for European Policy Studies demonstrates why such technical measures would be dangerous for free expression. Surveying technical literature on the subject, CDT’s research concludes that existing technology tools that recognise and filter various types of content – whether video, audio, photos or text – are not sophisticated enough to ensure that only illegal content is targeted. Human supervision remains critically important to avoid suppressing legitimate speech. And, as CDT has frequently argued, determinations about the legality and illegality of content should be made by courts, not automated content moderation tools.

E-evidence: European Commission Issues Impact Assessment

The European Commision is moving ahead in its work on law enforcement access to electronic data. In August, the EC’s Directorate-General for Home Affairs published an ‘Inception Impact Assessment’ and a consultation document to gather further input and data from law enforcement agencies, communications providers, NGOs and trade associations. Key questions are whether the EC should put forward legislative initiatives to enable law enforcement agencies to issue voluntary production requests or mandatory production orders to service providers for data held in other countries. A very controversial idea put forward in the Commission’s IIA is a proposal to create a legal basis for ‘direct access’: unmediated access to devices or computer systems without the participation of a service provider, also known as ‘government hacking’. CDT will participate in the consultation and further meetings of the EC’s stakeholder group. Our goals will be to push for strong privacy safeguards, judicial oversight and transparency in any initiative the Commission proposes.

E-evidence: Council of Europe to Progress Work on Cybercrime Convention

Along with the European Commission initiative, the Council of Europe’s Cybercrime Convention Committee (T-CY) has begun to draft terms of reference for a “2nd Additional Protocol to the Budapest Convention on Cybercrime”. This work overlaps with the Commission’s process and includes “provisions allowing for direct cooperation with service providers in other jurisdictions with regard to requests for subscriber information, preservation requests, and emergency requests”. CDT will follow this process closely and intervene as appropriate; our goals are to ensure that the CoE initiative results in processes that, while enabling necessary cross-border law enforcement cooperation and criminal investigations, maintains strong privacy protections and judicial oversight.

LIBE Committee Delegation Mission to Washington D.C. Pays CDT a Visit

A delegation of the LIBE Committee traveled to Washington, D.C. from 17 to 21 July 2017 to be informed of the state of play for issues such as justice and home affairs in the U.S. and those that directly affect EU-U.S. relations. CDT was honoured to be amongst the stakeholders to discuss with the LIBE delegation topics such as the EU-U.S. Privacy Shield and its implementation by the U.S; law enforcement access to data, and the plans to roll back net neutrality protections in the U.S.