EU Tech Policy Brief: March 2021 Recap

This is the March 2021 recap issue of the Centre for Democracy & Technology Europe’s monthly 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. Our aim is to help shape policies that advance our rights in a digital world. You can subscribe here.

CDT Europe and Dozens of Other Human Rights Organisations Urge MEPs To Vote Against TERREG Proposal

The Center for Democracy & Technology Europe (CDT Europe) joined over 60 other human rights and journalist organisations in signing a letter to the Members of the European Parliament, urging them to vote against adopting the proposed Terrorist Content Online Regulation in the April 2021 plenary sitting. 

Since the draft legislation was published in 2018, we have warned against the serious threats the proposal presents to fundamental rights and freedoms, especially freedom of expression and opinion, freedom to access information, the right to privacy, and the rule of law. Thanks to the work of the European Parliament’s negotiations team, an extended debate and the involvement of civil society, a number of problematic issues have been addressed. 

However, despite the outcome of the negotiations, the final text of the proposal still contains dangerous measures that will ultimately weaken the protection of fundamental rights and the rule of law in the EU. The text has also come under fire from a group of UN Special Rapporteurs on account of its non-compliance with international human rights law. 

CDT Europe Provides Feedback on Digital Services Act Proposal

CDT Europe welcomed the opportunity to comment on the proposed Digital Services Act as part of the European Commission’s feedback collection procedure. The proposal includes a number of key provisions that would help safeguard rights in online content regulation, such as the Good Samaritan Principle, the prohibition against general monitoring obligations, and certain provisions increasing transparency over algorithms and online advertising. 

CDT Europe is concerned, however, that a number of these elements are inadvertently undermined by other provisions. International and European human rights law is clear that decisions on the legality of speech are the sole purview of the Courts. Yet, the draft Regulation assigns this task to a range of non-judicial actors, including private companies and state authorities. 

Further consideration is also required as to the expertise and competence of the body carrying out oversight of algorithmic and recommender systems, in order to ensure its independence and effectiveness. Generally, the lack of independence of the proposed governance structures raises concerns. 

CDT Europe and EAID Continue to Work on the Schrems II Case

In January of this year, CDT Europe partnered with the European Academy for Freedom of Information and Data Protection (EAID) to organise a discussion on transatlantic data flows in light of the July 2020 Schrems II decision by the Court of Justice of the European Union (CJEU). 

After a successful live streamed debate that attracted over 500 viewers in total, CDT Europe and EAID came together again to convene top policymakers from the EU institutions and the data protection community, as well as representatives from civil society, academia and industry, in a closed online roundtable. The participants discussed issues of proportionality and redress raised in the CJEU decision, and possible solutions to achieve compliance.

In that regard, CDT previously released a memorandum calling for a series of administrative and legislative reforms to U.S. surveillance law and practice. In short, our recommended reforms would:

• increase transparency about surveillance actually conducted;
• limit the purposes for which surveillance can be conducted;
• focus surveillance on legitimate targets;
• require more timely deletion of information collected unnecessarily; and
• establish a route to court-ordered redress for unlawful surveillance.

EDPB Issues Statement on Latest State of the Draft ePrivacy Regulation

The European Data Protection Board (EDPB) adopted a statement on the proposed ePrivacy Regulation, calling for the legislation to complement the GDPR by providing additional strong guarantees for confidentiality and protection of all types of electronic communication. 

The EDPB raises concerns regarding processing and retention of electronic communication data for the purposes of law enforcement and safeguarding national security, and stresses that the Regulation must comply with human rights law and the latest case law of the CJEU. Data processing should be subject to general prohibitions with only narrow, specific, and clearly defined (purpose-oriented) exceptions. 

Further, the EDPB stresses that strong encryption should be the general rule to ensure a secure flow of data, and is crucial to ensure compliance with the security obligation of the GDPR. The EDPB also recalls that provisions on consent under the GDPR apply in the context of the ePrivacy rules, and stresses the need to explicitly prohibit the use of unfair practices which make access to services conditional on the consent of the user (e.g., cookie walls). 

Iverna McGowan Gives CDT Europe’s Views on the Spread of Disinformation on Social Media

CDT Europe’s Director, Iverna McGowan, spoke at a debate in March about the spread and impact of disinformation on social media organised by University of Kent’s Brussels School of International Studies (BSIS). 

The event, called ‘Post-Post-Truth: What now for disinformation after Trump?’, explored the impact of disinformation on social cohesion and democracy, and what actions might be needed to prevent the spread of mis- and disinformation while respecting freedom of expression. 

McGowan emphasised the link between pervasive use of personal data and the spread of online disinformation. She also highlighted the importance of transparency behind recommender and algorithmic systems that drive content online. She cautioned, however, against government-mandated laws that risk creating ‘Digital Ministries of Truth’ online.