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November 23, 2005 | Suw Charman Anderson

Music industry tries to hijack serious crime legislation in Europe

When the UK Presidency suggested to the EU that telecoms service providers and ISPs should be forced to retain information about the telephone calls you make and the sites you visit, they stated that it was an essential "balance" struck between liberty and security: a grave compromise necessitated by the threat of terrorism and serious crime. We don't remember them mentioning "and might help the recording industry fish for file-sharing networks, DRM workarounds, and spurious patent infringers". The newly-formed Creative and Media Business Alliance (CMBA), made up of companies such as Sony BMG, Disney, EMI, IFPI, MPA and Universal Music International, this week expressed an interest in communications traffic data so that they can more easily prosecute "intellectual property infringements". Thanks to a combination of two fast-tracked EU directives, they may just get their wish: and allow a UK plan to limit civil liberties to turn into a privacy-invading free-for-all by the entertainment lobby. Data Retention to Fight Piracy? This week, the CMBA emailed all MEPs (Word doc), calling for the data retention legislation currently under discussion in Europe to be widened far beyond its original scope. The CMBA want data retention legislation to be an "effective instrument in the fight against piracy", and believes that "the conditions set out in the proposal are too restrictive and would create obstacles to law enforcement in a number of situations. Moreover, many amendments submitted, including to the Industry Committee, seek to further reduce the scope of the Commission proposal." You can read and cross-reference the amendments that the CBMA object to here, and here. These amendments are some of the few that try to rein in already bad legislation which may well violate the European Convention on Human Rights. For these companies, however, industry interests trump democracy, human rights and civil liberties. The CMBA demands:

1. The scope of the proposal should include all criminal offences The Directive, as proposed, is limited to "the prevention, investigation, detection and prosecution of serious criminal offences such as terrorism and organized crime" (Article 1.1). The position of the CMBA is that the scope of the proposal should be extended to all criminal offences. Limiting the proposal to "serious" offences would hamper the effectiveness of the Directive and the enforcement activities for other forms of criminal offences.
Liberal Democrat MEP Bill Newton Dunn has already helped the industry out here, by requesting that the word 'serious' be removed from the legislation:
Original version: "...data is available for ... prevention, investigation, detection and prosecution of serious criminal offences, such as terrorism and organised crime." Dunn version: "... data is available for ... investigation, detection and prosecution of criminal offences."
Remember that under current EU law, copyright criminals include not just large-scale commercial infringement operations, but thanks to the EUCD, also anyone who sells or "distributes ... as to affect prejudicially the copyright owner" circumvention devices or components. In other words, if you put the DeCSS code on a web page - six months of phone calls and sites visited may be used against you. Or if you reveal that putting tape on a CD will circumvent Sony rootkits. Furthermore, the CMBA demands:
3. The access and use of data for law enforcement purposes must not be limited. If the proposed directive is limited, in particular in its scope, it must be clear that it does not preclude the possibilities to obtain data for the enforcement of rights under EU or national legislation, in compliance with Data Protection rules. The possibility for law enforcement authorities to use data in other cases, to be determined by national law or other EU instruments, is essential, otherwise there will be no way to prosecute the infringements that are not covered by this proposal.
Whether or not you agree with the need to retain traffic data for fighting terrorism and serious crime, there can be no benefit to national security from allowing the creative industries to use this information for prosecuting simple "infringement" cases. Copyright Criminals Now tie this in with IPRED2, another nasty bit of legislation which criminalises all "intellectual property" infringement on a commercial scale and "aiding and abetting such infringement", with very thin definitions of what "commercial scale" or "intellectual property" means. The two directives together become even more alarming. IPRED2 mandates that the police work with rightsholders to pursue suspected cases of IP infringement - including patent infringements - or merely vocal encouragement of infringement. And the Data Retention directive provides them with reams of data they can mine for evidence against these suspected infringers. At the latest IPRED2 hearing, that's exactly what the CBMA's parent organisation, the International Federation of the Phonographic Industry (IFPI), demanded. This opens up a very ugly can of worms where entire industries can get unparalleled powers of investigation, provided at the taxpayer's expense. Moreover, if the CMBA get their way, the number of data retention enquiries that the telcos and ISPs will have to process will be far higher than if restricted to terrorism and serious crime. This will put far more pressure on the telcos and ISPs who will not only have to bear the cost of storing the data, but also of providing access to the information to the authorities. So, why is this important right now, this minute? Both Data Retention and IPRED2 are being frogmarched through the European Parliament at an alarming speed. Votes are being held by three committees over the next few days on Data Retention, with secret meetings going on in the background between the Council, the Commission and the Parliament, with the aim of reaching a tacit agreement on what this legislation should look like. On 13 December 2005, the Parliament votes on the Data Retention directive. Usually, they get two stabs at it, with the Council having a say in between. This time, they get just one vote. This time, MEPs will have just a few days between being presented with the proposed legislation as drawn up in the secret meetings and being expected to come to an informed, considered decision on whether it should become law. Word has it that there are some MEPs who do not even realise that this is a single reading process - they are expecting the normal two reading process instead. Most MEPs have probably not been following the debate around Data Retention in detail, and giving them just a few days to absorb, understand, and analyse the proposals will ensure that, by the time they must cast their vote, they will through no fault of their own still not be in a position to make a reasoned decision. This is not democracy. What can you do? Email your MEP now. Tell him or her that you oppose Data Retention, and that you are concerned about the way it is being rushed through the European Parliament. Read this pamphlet (sent to all MEPs by EDRI) for talking points to discuss. Read up about IPRED2. With all the work going on with software patents and data retention, IPRED2 has not had the coverage it deserves. The FFII (the Foundation for a Free Information Infrastructure) has been doing a fine job tracking it, but it needs more exposure. Blog about your concerns and encourage your readers to contact their MEP and particularly the Green Party, who may yet play a vital role in protecting your civil liberties by tabling a rejection of the Data Retention proposal. The recording industry and the UK presidency are determined to get their way through stealth, not debate. We can't let the European Parliament sleep-walk their way into these statutes.

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Comments (13)

  1. ArtistiqueB:
    Feb 27, 2008 at 02:23 PM

    I would urge you to oppose the directive or at the very least quash the CMBA’s proposed amendments. The legislation is ill conceived, expensive and invasive; the CMBA’s amendments will only make matters worse.

  2. The Open Rights Group : Blog Archive » Digital Rights Ireland challenge data retention laws:
    Sep 14, 2006 at 05:08 PM

    [...] ORG campaigned strongly against the Data Retention Directive, particularly when the music industry said they wanted a piece of the action, but once the Directive was passed, there’s been little to do here in the UK but sit and wait for government implementation. Although Germany’s Budestag have voiced serious doubts that the Directive could be implemented “in a constitutional manner”, it has already been established that their constitution is subordinate to European Law. It’s therefore unlikely we’ll see a challenge from that direction. [...]

  3. record label dude:
    Nov 25, 2005 at 09:13 PM

    as the owner of a small record label, i say FUCK YEAH to this legislation. the majors continue to weave the web that will utlimately cut themselves out of the distribution game while retaining profits for small artists and labels...

    but anyways all the chinese designed cpus that will be coming out on the market in the next few years will UTTERLY ignore all the DRM crap.. so spies and traitors and the like can buy chinese computers if they don't wanna be monitored..

  4. Chris Clark:
    Nov 26, 2005 at 09:02 AM

    Whilst I appreciate what the previous commentator has said, I've just signed up to the Open Rights Group, follow EFF, and am not impressed with the language used here.

    Can we moderate the language please - the words will have more effect.

  5. David Brake:
    Dec 15, 2005 at 01:33 PM

    I just read that "The European Union wants to know what it can do to encourage the digitisation of books, and the making accessible of these digital works. Specifically, the European Commission (the

  6. Tonnerre:
    Nov 24, 2005 at 10:15 PM

    Salut,

    Please note as well that the Commission sent out a document (COM(2005)583) interpreting the ECJ judgement in case C-176/03 Commission v Council as ambolishing the current IPRED2 directive proposal, which could basically mean a restart of the proposal.

    Thanks for listening,
    Tonnerre Lombard.

  7. Suw Charman:
    Nov 24, 2005 at 10:26 PM

    Tonnerre: Yes, I just heard about this. Need to read up on it, but even if IPRED2 is dead, it's only a part of the battle.

  8. Thomas Pull:
    Nov 25, 2005 at 12:39 PM

    Mussolini was quite straightforward about all this. In a 1923 pamphlet titled 'The Doctrine of Fascism' he wrote, 'If classical liberalism spells individualism, Fascism spells government.' But not a government of, by, and for We The People - instead, it would be a government of, by, and for the most powerful corporate interests in the nation."

  9. P. Rasmussen:
    Nov 25, 2005 at 12:54 PM

    Are you sure about the date being the 12th? I admit that I'm no genius at deciphering the (deliberately?) Byzantine EU documentation, but looking at the draft agenda for the plenary session of 12-15 December, it looks like the directive is up on the 12th, already.

  10. John Girvin:
    Nov 24, 2005 at 04:45 PM

    Sent this to my MEP:

    -------

    Dear XXX,

    I live in XXX and have been a long time XXX supporter and voter but this is the first time I have felt the need to write to my MP or MEP.

    I read with great concern the report "Music industry tries to hijack serious crime legislation in Europe" [1] regarding how a media company group, the "Creative and Media Business Alliance" (CMBA), is lobbying for changes to data retention legislation currently under consideration to make it possible for companies to gain access to the telephone and internet records of private citizens with little or no reason or oversight. The legislation in its current form is already an affront to privacy and civil liberties and imposes heavy compliance and access costs on telephone and internet service providers (that will no doubt be passed on to customers), but restricts access to authorities' investigations of serious and organised crime; the CMBA seeks to greatly extend these access rights to include their members.

    Recent press reports [2] show the kind of behaviour we can expect from these companies - Sony BMG surreptitiously installing unremoveable virus like spy software on customers' computers - and I for one object in the strongest possible way to such groups having free access to my personal records. Our society is already one of the most heavily surveilled (by government) in the world and any extension of these powers to private industry much be treated with the utmost suspicion and care. For these companies industry interests trump democracy, human rights and civil liberties.

    On 13 December 2005 Parliament is to vote on the Data Retention directive. This is a single reading process, not the usual two reading.

    I would urge you to oppose the directive or at the very least quash the CMBA's proposed amendments. The legislation is ill conceived, expensive and invasive; the CMBA's amendments will only make matters worse.

    Yours sincerely,
    John Girvin.

  11. Ian Clarke:
    Nov 23, 2005 at 07:20 PM

    First sentence of "Protecting Privacy in the Information Society" PDF:

    "This is the first time in history that human activity generates such vast logs."

    If I was an MEP and I read that example of plain bad English *in the very first sentence*, I would toss the document into the rubbish bin without a further thought. Who writes this stuff, and why can't they have someone who understands how to write clear non-technical English review and edit it before they embarrass us further?

  12. Crosius:
    Nov 23, 2005 at 08:47 PM

    I think it's great that just after the public discovered just how vile Sony BMG's attitude towards them was, these other companies have stepped into the light and by their collective actions let us know that they share her values.

    It makes it ever-so-much easier to determine whose products not to buy when they clump up like this (and presumably stamp CMBA on everything.)

  13. Andy Green:
    Nov 24, 2005 at 10:27 AM

    I live in MEP Bill Newton Dunn's constituency, and emailed him the following on 2005-11-23 17:46. I did not hear any reply so far.


    Hi Bill -

    I live in Kettering, Northants, and am a natural and active Lib Dem voter for 20 years, in local, national and EU elections. I just read a report about the CMBA here:

    http://www.openrightsgroup.org/2005/11/23/music-industry-tries-to-hijack-serious-crime-legislation-in-europe/

    which notes that you have 'requested' to widen the scope of this proposed data retention legislation by removing the word 'serious' from the definition of the crimes the data would be made availble for.

    I'm writing to hear your side of the story as to why you would support what would be a drastic and Orwellian reduction of privacy in this way. I'm very concerned that the combination of the EUCD introduction a couple of years ago, with increasing DRM, and the dubious legality now of reverse engineering devices even for the sake of interoperability, will lead to an extraordinary anticonsumer world in the next few years. By supporting such abuse of the CMBA original intent it seems that you are hardly representing the interests of your constituents.

    As I say I welcome hearing your side of the story.

    -Andy



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