This is the November 2019 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.
Little Progress in Negotiations on the Terrorist Content Online Regulation
Trilogue negotiations on the proposed Regulation on Terrorist Content Online were expected to finish in mid-December, but have not made significant progress so far. Negotiations are difficult because the European Parliament’s position (which CDT supports) differs significantly from the Commission’s draft text and the Council (Member States) Common Position. Among the key issues in these negotiations will be upload filters and proactive measures, how Member States appoint ‘competent authorities’ and how many, whether ‘referrals’ will be part of the Regulation, and how the definition of ‘terrorist content’ will be shaped. Considering the difficulties, it is unlikely that an agreement will be reached in the expected timeframe. CDT is following the negotiations closely.
Parliament Rapporteur Proposes Solutions to Shortcomings in Draft EU E-Evidence Legislation
On 11 November 2019, MEP Birgit Sippel (S&D), Rapporteur for the Committee on Civil Liberties, Justice and Home Affairs (LIBE), presented her draft report on the European Commission’s E-Evidence proposals. The report takes on board several recommendations CDT put forward and is a significant improvement on the Commission’s proposal. The E-Evidence process is meant to result in clear new rules for government authorities to access electronic evidence, and Ms. Sippel proposed significant improvements in the form of privacy and procedural safeguards. The original proposal limits review of evidence production orders by any authority besides the issuing authority, and provides little scope for review by the service provider. The risk is that production orders are issued for too broad a range of data, infringe disproportionately on privacy rights, and may involve privileged and confidential information. Among other things, Ms. Sippel proposes providing simultaneous notification to executing state authorities when orders are issued, and where necessary, the authorities of the state of residence of the person whose data is sought. Other MEPs will propose further amendments to be debated by the Committee.
CDT Submits Comments on the Council of Europe Budapest Convention Draft Protocol on Subscriber Information
CDT provided comments ahead of the Council of Europe’s OCTOPUS Conference consultations on the drafting of a Second Additional Protocol on subscriber information to the Budapest Convention on Cybercrime. Among other things, we called for the text of the draft Protocol to be improved on a number of points: to provide for judicial oversight; to include a dual criminality condition; to ensure a strong factual basis for orders for subscriber information; to provide for notification of state authorities and persons whose data is sought; and to include reimbursement of providers for executing orders for data.
European Parliament Approves New European Commission
The new College of Commissioners took office on 1 December, following a vote of approval by the Parliament on 27 November. The Commission’s entry into force was delayed when MEPs refused to approve nominees from France, Bulgaria, and Hungary. The approval went ahead with a majority of 461 votes to 157 against, with 89 abstentions. The vote followed a presentation by the new President of the College of Commissioners and their programme for the next five years. The presentation – reflecting the President’s existing strategy document – included several digital and technology policy issues. These included the review of EU legislation on intermediary liability, a regulatory framework for artificial intelligence, a data strategy for the EU, measures to combat disinformation and election interference, and the concept of technological sovereignty.
Implementation of the Copyright Directive: 51 Academics Co-Sign Recommendations on Safeguarding User Freedoms in Implementing Art. 17
In context of the ongoing Art. 17 Stakeholder Dialogue, 51 copyright academics co-signed a set of recommendations on safeguarding user freedoms in implementing Article 17 of the Directive on copyright in the Digital Single Market. This Article is the most controversial in the Directive because it effectively mandates the use of upload filtering by content hosts. This raises concerns that filtering technology is not sophisticated enough to enable users to benefit from exceptions and limitations to copyright and results in overblocking of legitimate content. The recommendations should be followed by Member States to ensure that hosting service providers covered by the Article “optimise preventive measures for user rights and freedoms, and design user-friendly complaints and redress mechanisms”. CDT continues to participate actively in the Stakeholder Dialogues.
CDT and Public Knowledge Respond to BEREC Consultation on Draft Guidelines on the Implementation of the Open Internet Regulation
CDT and Public Knowledge (PK) responded to the Body of European Regulators of Electronic Communications’ (BEREC) consultation on their draft guidelines for implementing the EU’s Open Internet Regulation. We appreciate that BEREC provided additional guidance for assessing commercial agreements like zero-rating, which can vary widely. Their impacts on consumers and relevant markets also depend on many interdependent factors. Therefore, a case-by-case approach is the best way to ensure that potentially anti-competitive, content-discriminatory, or otherwise harmful arrangements are prohibited, while still allowing arrangements that provide more choice and benefits to consumers without impacting users’ rights. We also appreciate that BEREC’s guidelines anticipated some of the new network use cases and capabilities that may emerge in conjunction with 5G networks, such as Quality of Service guarantees. Although predicting the practical realities of these developing technologies is difficult, BEREC’s proposed guidance would help national regulatory authorities address some of the biggest concerns associated with new capabilities like “network slicing.”