Technology Policy Questions the European Parliament Should Ask Candidates for the New European Commission

Next week, the European Parliament will be holding hearings to scrutinise the nominees for President-elect Von der Leyen’s designated team of Commissioners for the 2019-2024 mandate. Before the new College of Commissioners can take office, it must be confirmed by Members of the European Parliament (MEPs). The hearings are an opportunity for MEPs to question candidate Commissioners on their views and positions on important issues in their assigned portfolios. They can also be used by political groups to challenge candidates fielded by Member State governments aligned with rival political groups. The final vote will be on the entire team of Commissioners, but it may well be that one or more candidates is rejected and replaced before the process is finalised.

Digital policy questions should feature primarily in the hearings of Margrethe Vestager, who has been nominated as Executive Vice President for digital policy and competition, and of Sylvie Goulard, candidate commissioner for internal markets with responsibility for the Commission’s Directorate-General CONNECT, the main engine for digital policy strategy in the new Commission. Additionally, the hearings of Didier Reynders, (slated to be responsible for justice), and Ylva Johansson (candidate for the home affairs portfolio) and Vera Jourová (candidate VP responsible for values and transparency), should include questions on rule of law, security, and law enforcement issues. 

The following is a brief set of questions that focus on CDT’s core policy concerns. We recommend that MEPs ask questions in these areas to the relevant candidates. 

On intermediary liability and the Digital Services Act: Protecting free expression and innovation

President-elect von der Leyen’s policy strategy calls for a Digital Services Act that will amend the current rules governing web hosting in the EU. The current liability protections have enabled a vast array of internet services to spread and grow. A good question for Vestager and Goulard would be how they will undertake this reform in a way that maintains essential liability protections for content hosts and avoids creating prohibitive risks, obligations  and liabilities for platforms hosting user generated content. Getting this reform right will be essential to safeguarding free expression on the internet and enable the broadest possible set of voices to be heard. In addition, they should ask how the candidates will ensure that any new obligations and responsibilities for user-uploaded content do not create disproportionate costs and risks for start-up companies and SMEs.  

On 5G: Preserving net neutrality principles 

Rapid deployment of 5G communications networks will be a strategic priority for Europe in the coming years and is expected to enable a broad array of new services. 5G involves a number of important policy debates. One is on open internet and net neutrality. The EU passed legislation in late 2015, embedding in law the fundamental principle that end-users can access and distribute internet content and services of their choice. The legislation also states that electronic communications providers must conduct necessary traffic management in a non-discriminatory fashion. However, there will likely be calls to relax net neutrality rules to enable new forms of network management and possibly discrimination among different types of applications. It would be useful to question Vestager and Goulard about their commitment to ensuring that EU net neutrality principles will continue to apply, and are properly enforced, as 5G networks are rolled out.  

On 5G: Preserving and promoting encryption

Another debate associated with 5G network rollout has to do with encryption and the capacity of law enforcement access to electronic communications. The debate on encryption and law enforcement has gone on for decades, and it will receive new impetus with the transition to 5G. Law enforcement and security officials have long argued that their capacity to conduct criminal investigations depends on their ability to intercept and access electronic communications content. CDT and others argue that proposals to enable law enforcement access to encrypted communications would create vulnerabilities that would undermine trust and security in online communications and services. We would like to hear from candidates Vestager, Goulard, Reynders, and Johansson where they stand on these issues. Do they agree that it is necessary to promote the use of encryption in online communications and do they commit to ensuring that European users have access to the best available encryption technologies, now and in the future?  

Data retention: Bringing Member State practice into line with EU law 

The EU Data Retention Directive was struck down by the Court of Justice of the EU in 2014. In 2016, in its ruling on the Tele2/Watson cases, the Court gave further guidance about the limits EU Member States’ data retention systems must respect. However, Member States have by and large neglected to make the necessary changes to their data retention laws and policies to bring them into line with CJEU jurisprudence. On the contrary, Member States have stated clearly that they consider access to electronic communications data vital to effective law enforcement, and have asked the Commission to study options for continuing data retention practices, including legislative proposals. It would be interesting to hear what candidate Commissioners have to say about this issue, notably Reynders, Ylvasson, and Jourova. Would they recommend that the European Commission should bring forward infringement proceedings against Member States whose data retention schemes continue to violate CJEU jurisprudence?