August 31, 2016 | Javier Ruiz

Bad news in leaked EU Copyright Directive

Leaked EU Copyright Directive ignores ordinary internet users and presents limited reforms to support creators, researchers, teachers and librarians, while providing a sledgehammer of protectionist measures for the incumbent news, music and film industries.

Several documents have been leaked from the European Commission providing a clear picture of the proposed reforms to copyright that will be presented later in the year. The picture is quite negative as the proposals range from the timid to the openly regressive, such as the introduction of a new ancillary right for news publishers. Several key initiatives have been dropped, including changes to the current exceptions for freedom of panorama that allow taking the pictures of public art and buildings.

The documents leaked include the Impact Assessment on the Modernisation of EU Copyright Rules, prepared by EU officials; an official communication titled ‘Promoting a fair and efficient European copyright-based economy in the digital single market’ due to be published later this month; and finally the full text of the proposed new Directive on Copyright in the Single Market.

The new Directive will complement and not replace current legislation such as the Infosoc Directive, although there are some minor technical modifications. Existing directives will not be reopened for discussion, thus limiting the possibilities for reform in key areas such as Digital Rights Management. The directive applies to the European Economic Area (EEA) and will probably be relevant to the UK whatever shape Brexit eventually takes.

These leaks make the past two years of pre legislative discussions about comprehensive copyright reform feel like a waste of everyone’s time, except of course for a few industry lobbyists. The EU is about to throw away the first chance in over a decade to adapt copyright to the digital world, instead choosing classic protectionism for incumbent industries. These measures will not promote the creation of a vibrant digital industry in Europe capable of standing up to Silicon Valley - as EU policymakers want.

Below is a summary of the main contents of the leaked Directive. There are other initiatives in the wider package, including: a Regulation for online broadcasting, implementation of the Marrakesh treaty on accessibility for the visually impaired, a broad package on copyright enforcement and more provisions to promote European works.

The contents of the Directive are a mix of initiatives that include some mandatory limited exceptions for culture and education and measures to help improve remunerations for creators, but in the main are openly about supporting right holders and European industry.

Protectionist measures

Publishers ancillary right

This is the most controversial reform is the creation of a completely new intellectual property right for news publishers which lasts 20 years and will add a new layer of complexity to Internet regulation. The new right has the same scope as rights of reproduction and making available and it’s covered by the same exceptions, including criticism or review. The EU is open in aiming to support the financial sustainability of news publishers, and the right does not cover scientific or academic publishers. We are not completely clear on the situation of blogs, but the right is meant to cover only publications by a “service provider”.

This right is meant to stop internet news aggregators to simply copy a portion of the news article and stop revenues flowing to the original site. Similar initiatives in Germany and Spain had a disastrous effect on media access, but we will need more time to fully understand how bad this one is. The first analyses are extremely negative as the new right seems even less constrained than previous initiatives.

User uploaded content: YouTube Law

Another major concession to industry aiming to address the “value gap” created by the disparity between the number of people watching content in platforms - basically YouTube - and the revenues received. The Directive forces relevant online platforms to seek licenses from rightsholders. While there may a case for Google to share some of its profits with rightsholders it is unclear that copyright law is the best way to do it. This law will extend beyond YouTube with unpredictable effects on Internet activities, as lawyers cotton on to the new powers given to industry.

This new power goes to the heart of Internet regulation: the (lack of) liability of intermediaries that enables content to be hosted and linked around, expressed in the E-commerce Directive. In principle the new power covers services that go beyond providing “mere physical facilities” and perform and “act of communication to the public” by taking an active role in curating or promoting content, but this is not always clear cut.

The Directive does not include an obligation to monitor preemptively - which would contravene other laws - but it forces the implementation of technological protection measures to protect works, such as Google’s Content-ID - with transparency obligations towards rightsholders.

Fair remuneration for authors and performers

There are some positive measures to protect creators that include transparency over online media sales, powers to renegotiate contracts and alternative dispute resolution mechanisms. Overall they seem positive albeit a bit weak, when compared with the sledgehammers given to news publishers and the music industry.

New mandatory exceptions

These exceptions are positive but in all cases limited when compared to the initial demands of libraries, educators and cultural institutions. They do not include many of the more far fetching reforms proposed by civil society and even the European Parliament.

The call for a mandatory exception for “freedom of panorama” campaigned for by many civil society groups including ORG fell on deaf ears. The Commission has simply stated in their documents that the status quo works fine, while politely asking all countries to implement the exception.

Text and Data Mining exception

This exception allows the making of copies to perform analysis for scientific research by non-profit or public interest organisations. There is no compensation for rights holders and an explicit ban on contractual clauses overriding the exception. Technical measures to restrict access or copying are allowed but should not affect the exception.

This is a positive move, although many research organisations and libraries had been asking for a broader scope as they feared that a lot of important research may be excluded.

Online Teaching exception The rationale for this exception is the lack of clarity on whether existing exceptions in the Infosoc and Database Directive apply to online education, particularly cross border access . The exception covers only “educational establishments”, which must control access to the resources, and will likely exclude many online educational initiatives. The exception allows for licensing schemes to take precedence over the exception and this could be used to weaken the provisions.

Digital Preservation

Libraries, archives and similar cultural heritage institutions will be allowed to make necessary copies of works for preservation, but only of works in their permanent collections. The exception is only for internal copies and not for online libraries.

Supporting the digital market

A couple of fairly minor initiatives that are positive but of limited impact in the context of the once-in-twenty-years reform of copyright.

Out-of-commerce works

Libraries have been lobbying for a long time to be allowed to engage in collective licensing deals to digitise and distribute out-of-commerce works. They see this as both an extension of their mission and an opportunity to generate funds, although in principle this is framed as non-commercial cost recovery of the costs of mass digitisation. The exception only applies to works first published in the EU. This is not a full free copying exception, but the option to enter extended collective licensing deals without the need to get approval from every author. There is a six month compulsory notice in case authors are around and object.

Video on demand 

The directive forces member states to create a voluntary “negotiation mechanism” with the support of and impartial body to help parties license work for Video on demand (VoD) services.

In summary, a disappointing culmination of a two year discussion that started with high hopes of seeing Europe take bold moves to really modernise copyright. The legislative process starts now, however, and while the UK is in the EU, ORG will continue to try to influence the shape of these laws as they go through the European Parliament. We must also remember that this is all based on leaked documents and the European Commission may still make some changes.

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August 23, 2016 | Javier Ruiz

Review of bulk surveillance powers gives one side of the argument

The review of bulk surveillance powers by David Anderson supports the operational case for the current practices of the agencies. The review did not look at the wider impacts of mass surveillance and any further discussions need to take both aspects into account.

David Anderson’s Review of Bulk Powers gives broad endorsement to the contents of the Investigatory Powers Bill. This should come as no surprise, given his job was to determine their utility to the government and not any wider social impacts, including on human rights. The review also had a limited remit to look at potential alternatives to bulk, and found that these may exist for some of the cases examined, but are generally too cumbersome, slower or less effective. The review makes only one recommendation for reform: the creation of a new Technical Advisory Panel of independent security cleared experts to support the Investigatory Powers Commissioner.

We are concerned that the government will try to use Anderson’s review to end the public debate on mass surveillance. This would be a mistake, as the underlying issues will not go away. Countless human rights experts and bodies have condemned mass surveillance and a large proportion of the population remains concerned about their online privacy.

The IPB will be scrutinised again by the Lords in the Autumn, and the other side of the debate needs to be included in the discussions. Focusing on the utility of bulk - the operational case - is important in establishing the necessity for such powers. This does not tell us however whether wholesale collection and analysis of data is proportionate in a democratic society. As Anderson himself repeatedly makes clear in his review, these are matters for Parliament to decide.

Anderson arrived at his conclusions after looking at the classified activities of the Security and Intelligence Agencies - MI5, MI6 and the GCHQ - including several visits by him and his team. The Review also summarised most influential reports in this area, including those by the Intelligence and security Committee, Anderson’s previous report, and also some US reports that cover similar issues. Anderson found that all available evidence supports the operational case for bulk interception, bulk datasets and acquisition of communications data.

The only area where in Anderson’s view the case is not yet fully proven is bulk “equipment interference”, aka bulk hacking, as this is a new power. He quotes extensively security personnel claiming this power is required to cope with the growing threats that encryption and anonymity present to other bulk collection methods. There is little discussion about what this power may look like in practice. Documents leaked by Snowden mention GCHQ’s interference activities causing disturbance to the internet traffic of whole countries, such as Pakistan. Unfortunately, Anderson does not engage with the leaked documents and glosses over “the potential of CNE to create security vulnerabilities or leave users vulnerable to damage” (p. 108).

The review was completed in a very short period of time, rushed to avoid delaying the legislative process. Concerns have been expressed from various quarters that a lack of time might have impacted the results, but it seems unlikely that more time would have changed these. The Review was asked whether there is an operational case for bulk, and given the scope and sources of evidence the answer would almost certainly have been the same. Anderson neutralises the dissonant evidence, such as the last report from the Intelligence and Security Committee that criticised bulk hacking, or the US Privacy and Civil Liberties Board report that found there was no value in giving all phone records to the government for analysis.

The main new piece of information is the extended evidence from the security and intelligence agencies. Throughout the paper Anderson deals with criticisms of bulk by referencing new secret evidence that he has been able to see and was not available - and never will be - to critics. The argument is collapsed into a question of trust, in this case of trusting Anderson to vouch for the agencies.

Government will brandish this review’s headlines to support the Investigatory Powers Bill, but a more detailed follow up is needed. For example, the discussions on alternatives to bulk seem to point at some options, but these are quickly dismissed. It would be important for Parliament to probe these potential options in much more detail.

The recommendation for a Technical Advisory Panel can hardly be rejected, but its success will depend on how it is handled in practice. There are numerous advisory boards across government with very mixed results. Technically proficient staff should be part of the oversight and authorisation bodies, not just in advisory roles.

The review joins a veritable body of publications from security related bodies and individuals that cross-referentially support the practices of the agencies while ostensibly asking for some reforms. Since the Snowden leaks three years ago there has been a huge improvement in the level of public debate in the UK about surveillance . It would be foolish to deny that we have a much better understanding of how these systems work, and not all from the Snowden leaks. At the same time we have to ask ourselves what has actually changed in practice.

Unfortunately, the most serious concerns about the agencies do not relate to whether surveillance powers are useful and not misused, but how secrecy and pervasive monitoring affect democracy and individuals’ personal development in the medium to long term. There is little that Anderson’s review can do to allay those fundamental concerns.

Anderson puts his finger briefly on these most basic aspects, quoting his own previous report to support the need for strong surveillance powers:

A perception that the authorities are powerless to act against external threats to the nation, or unable effectively to prosecute certain categories of crime (including low-level crime), can result in hopelessness, a sense of injustice and a feeling that the state has failed to perform its part of the bargain on which consensual government depends.(p. 120)

A very different conclusion could be reached. The pervasive sense of hopelessness and insecurity created by technological change, economic crises and broader geopolitical upheaval might be perceived as the failure of the state to successfully plan, regulate and intervene diplomatically. The development of an all-powerful mass surveillance state seems the wrong overcompensation mechanism, which will do little to address the underlying causes of insecurity, injustice and disenfranchisement.

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July 22, 2016 | Slavka Bielikova

IPBill Committee stage latest sitting

The House of Lords debated the IPBill in the Committee this Wednesday for the last time before the summer recess. The topics covered the Internet Connection Records (ICRs), the Request Filter and equipment interference. Here is a brief breakdown of what was said. We will be back in September with more.

Throughout the debate, the Lib Dem Lords mounted strong opposition to the Government in all three areas being discussed.

Internet Connection Records

Lord Paddick and Baroness Hamwee presented their amendments requesting removal of the ICRs, arguing they fail to meet the basic test of necessity. Lord Paddick made excellent points to justify their position.

Internet connection records do not do what the Government claim they do. … At best, internet connection records provide only details of which communications platforms have been used, most of which are based in the United States.

Lord Paddick referred to earlier statements made by MI5, MI6 and GCHQ claiming they do not have explicit necessity for ICRs because they have other ways of securing the data they need.

Lord Strasburger seconded their reasoning and pointed to high costs and impracticalities related to keeping the records. He made a case for the ICRs weakening the safety of British citizens. Strasburger said

It is a matter of when, not if, these sensitive data get into the wrong hands.

The unique position of the UK stubbornly requiring ICRs was questioned by Lord Oates. He pointed out that none of the Five Eyes countries, or any western democracy, collects ICRs. According to Lord Oates, it will be a horrific experience for the public when they discover that government insists on the retention of the details of every single person in the country's access to every single website.

The Government maintained their position that ICRs are necessary in combatting crime but did not offer any compelling evidence, instead repeatedly stressing their desire for ICRs to future-proof the Bill.

Under the agreed amendments on ICRs, they can only be obtained by UK authorities if they are to be used to help prevent or detect crime. Lord Keen of Elie said that ICRs would only "be able to be acquired only for offences that are sufficiently serious that an offender can be sentenced to at least six months’ imprisonment". The amendments were still criticised because of their vague phrasing.

Request filter

The request filter was debated under similar narrative. Lord Strasburger argued the filter would be too intrusive. Ha called it “a bulk power masquerading as an innocuous safeguard to reduce collateral intrusion.” 

The Government's response to him was that the filter facilitates public authority cross-stakeholder communications; Lord Keen even called the request filter a safeguard because the authorities will only see the data they need to see (they did not provide any information on how this is technically possible).

Strasburger's concerns of misuse were also shared by the Conservative Lord Lucas.

The potential for casual misuse or misuse suborned by journalists will be considerable. On top of that is potential misuse by government.

Equipment interference

The Lords also discussed several probing amendments on thematic warrants and hacking, including training and testing warrants. The training and testing warrants became the centre of attention after it became obvious that an innocent citizen could be the subject of the above warrants.

Baroness Jones submitted her proposal to create the Investigatory Powers Commission instead of IP Commissioner. Her reasoning is that

this approach confuses and conflates the roles of authorisation and oversight. It is constitutionally inappropriate for those involved in decision-making to have responsibility for the oversight of those same decisions. Such conflation gives rise to a potential conflict of interest.

Mentions of the CJEU Advocate General's opinion

Regarding the opinion of the Advocate General published the morning of the debate, Lord Strasburger used it to challenge the ICRs collection. However, Lord Keen refused to comment on potential implementation of the opinion until the European Court of Justice rules in the DRIPA challenge.

The Government maintain that the existing regime for the acquisition of communications data and the proposals in the Investigatory Powers Bill are compatible with EU law, and clearly it would not be appropriate to comment further while legal proceedings are ongoing.

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July 20, 2016 | Jim Killock

Is the CJEU passing the buck on data retention?

It is an increasing feature of debates about the mass retention of data that nobody wants to be the person that says yes or no. It is so clearly problematic to retain huge amounts of personal data, and in some cases to analyse it, that it is hard to see how it could ever be reconciled with the right to privacy.


However, who is prepared to stand up against these practices when police or others say it is necessary for their work?

That is the dilemma facing the Court of Justice of the European Union (CJEU) in their decision on the Davis-Watson (now just Watson) challenge to the Data Retention and Investigatory Powers Act (DRIPA). The CJEU were asked by the UK courts how EU law might restrict domestic data retention law, as the EU court had found the EU’s Data Retention Directive 2006 to be unlawful, after a challenge from Digital Rights Ireland (DRI). Open Rights Group intervened in the Watson case with Privacy International, and made oral submissions at the CJEU, thanks to the many hundreds of supporters that joined to help us challenge DRIPA in the courts.

The Advocate General’s opinion on this essentially appears to say that it may be possible – if difficult – to justify mass data retention, when there is literally no other means of solving serious crimes. However, he says that this decision has to be made in a national context, and is therefore up to national courts. In his Opinion, he states that the extent of EU law is to set compulsory minimum guidelines around any data retention scheme, that they must only relate to metadata, rather than content, and to insist that any scheme must protect the “essence” of the right to privacy.

Retention schemes must relate to serious crimes, not other, less important concerns. As with what the “essence” of the right to privacy could be interpreted to mean by our domestic courts, the same problem exists for what should be classified as a “serious” crime. There is no continuously applicable definition of what a serious crime is across English criminal law. Should “serious” crime be interpreted to mean: offences that are indictable only (which means they can only be tried in the Crown Court) such as murder, rape and false imprisonment; offences which are so serious that only the National Crime Agency should investigate them, such as human trafficking, kidnap and extortion; or offences which could attract Serious Crime Prevention Orders under the Serious Crime Act 2007 in the interests of public protection, such as drug and firearms trafficking. Or will the bar be set so low as to include offences which could attract a maximum of a six month custodial sentence at the Magistrates’ Court, such as common assault or criminal damage under £5,000?

The Opinion makes it clear that independent authorisation of access requests is absolutely critical to safeguard any retention scheme. It also notes that this is absent from the UK’s regime, which allows police officers to make these decisions. By reiterating the original criteria that the CJEU outlined for data retention in the DRI judgment, the Advocate General makes it clear that he believes a UK court should insist on independent authorisation as part of the minimum requirements under EU law.

The CJEU leaves it open to make further challenges to the proportionality of data retention. In the UK, this would require our Supreme Court and possibly the European Court of Human Rights to decide whether our own schemes are proportionate.

In some senses, this may be the natural balance, in the absence of more codified EU requirements and the longstanding assumption that domestic courts apply EU law directly, but it is also something of a cop out. If the UK becomes increasingly out of step with EU norms, would it still be reasonable to say that national courts should decide these balances, when it is every EU citizen that engages with the UK whose rights are affected? Why should different member states, each with the same right to privacy, come to wildly different conclusions about the legitimacy of data retention? And they have, with many EU countries simply ruling data retention incompatible with domestic constitutional privacy rights.

The interesting and difficult problem with data and Internet based services is that free expression and privacy are very often impacted. Unlike the sale of many traditional goods, human rights have to be a consideration.

This problem will not go away, even if the UK leaves the ambit of the CJEU and perhaps EU law altogether. The EU’s legal framework would insist that guarantees exist. This led Max Schrems to speculate that there could be a challenge to any data protection arrangement between a Brexit UK and the EU if our current surveillance laws are still in place. The new Investigatory Powers Bill (IP Bill), which will replace DRIPA, would in his view make a nonsense of the UK’s claims to protect data and privacy.

The government may be tempted to play down or ignore these concerns, as it has done in the past. This is tempting, as the IP Bill will need to be challenged afresh.

However, this clash is not something where Theresa May or Amber Rudd are simply in control of events, and can face down opponents. The courts will be forced to make judgments, sooner or later, and the EU and its legal system will be under increasing pressure to ensure that the UK has sufficient respect for the rule of law and fundamental rights as it concludes agreements with us as an external partner. The safe option is to do everything possible to comply with these judgements, so that they do not become a matter of dispute in our new relationship with the EU.

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July 14, 2016 | Pam Cowburn

Could Boris Johnson’s appointment persuade the Lords that we need judicial authorisation?

Boris Johnson’s appointment as Foreign Secretary has become a listicle lover’s dream as every news outlets compiles its favourite diplomatic faux pas.

Is it penning a goat-shagging limerick about Turkey's President Erdogan? Claiming Barack Obama's Kenyan heritage means he has an “ancestral dislike of the British empire”? Or describing Hillary Clinton as having “a steely blue stare, like a sadistic nurse in a mental hospital”. While Eton-educated Alexander Boris de Pfeffel Johnson is commended for taking politics to the common man, there are concerns that his gaffe-prone tendencies mean he is unsuited to managing the diplomacy needs of a Brexiting UK that wants to secure its place on the world stage.

However there has been little discussion of one of Johnson's key responsibilities in his new role. Along with new Home Secretary Amber Rudd, Johnson will get to authorise surveillance warrants for the UK’s intelligence agencies.

While Rudd is still something of an unknown, the man who likes to respond to difficult questions with “blah blah fishcakes” is not known for his love of detail. Nor does he appear to have an aversion to breaking the rules – he was sacked by The Times for making up a quote, and from the Conservative front bench  in 2004 when he failed to come clean about an affair.  But now decisions about whether GCHQ should be permitted to hack networks or tap into fibre optic cables, will fall to a man who it is alleged did not follow procurement procedures properly while Mayor of London. Boris will of course be supported by senior officials in making these decisions. And who knows, he may scrutinise warrants with the dedication that he showed for cricket in the days after Brexit.

Flippancy aside, this is something that both Rudd and Johnson are likely to find challenging. They will need to learn the legal interpretations of necessary and proportionate, and assess what the agencies are asking of them. They will need to swiftly understand the legal frameworks as they decide who and how people are surveilled and assess whether the requests are justified. There is also a questions of logistics. Theresa May reportedly signed off the equivalent of ten warrants a day while Home Secretary.

Such complex legal decisions should not be down to politicians who may have little or no expertise in the practicalities of surveillance and the law. Most countries insist that independent judges sign off warrants for surveillance. The UK is the only Five Eyes country ( a group that includes the US, New Zealand, Australia and Canada) to allow politicians to do so. The reason is obvious. A leaked GCHQ document noted: “Senior High Court judges (they) are INDEPENDENT, non govt (sic) and not openly swayed by personal contact”.

Prime Minister Theresa May has claimed that the Investigatory Powers Bill will introduce a double lock of authorisation with Judicial Commissioners checking ministers' decisions. But the detail of the Bill means that Commissioners will be checking the process and will not have the powers to challenge surveillance decisions.

Independent judicial authorisation will do more than just ensure that surveillance decisions are necessary and proportionate. It may help the Government get the cooperation it seeks from US tech companies. In his report, A Question of Trust, the independent reviewer of Terrorism, David Anderson noted: “a number of major US companies, accustomed to the FISC procedure in the US, disliked the notion of authorisation by the Secretary of State and indicated to me that they would be more comfortable about complying with a warrant if it were judicially authorised.” (p207)

The IP Bill is currently being scrutinised by the House of Lords who can amend it to ensure that the UK has independent judicial authorisation. It's not too late to get the ‘blah blah’ details right.

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July 13, 2016 | Javier Ruiz

Telcos threaten to pull 5G investments if EU net neutrality rules are not watered down

European telcos and big industrial conglomerates demand relaxation of Net Neutrality rules, threatening to delay major investments on new 5G mobile technology.

A public EU consultation on the future deployment of 5G mobile technology closed yesterday. The same day a coalition of Europe’s largest telecommunications companies and industrial conglomerates — from Vodafone to Siemens - sent the European Commission a “5G Manifesto”. The document is standard policy lobbying fare, describing the untold wonders that 5G’s low-latency hyper-connectivity will deliver: such as self-driving cars, remote healthcare, smart grids and immersive media; while asking for leadership, massive public funding and the softening of regulations.

The global roadmap and standards for 5G have been developed by the International Telecommunications Union (ITU), an intergovernmental body, in collaboration with the mobile industry. The main headline of the ITU’s IMT–2020 vision is the peak data rate of speed up to 20 Gbps - 100 Mps for the user — with data taking centre stage from calls, but behind those figures there are many complex technical changes to how data is transmitted and networks configured.

Industry’s policy offensive is focused on the Net Neutrality rules that have been put forward for public consultation by BEREC, the European body of telecoms regulators that includes Ofcom.

The main argument from industry is the BEREC’s rules would hamper the development of “network slicing,” a key feature of 5G, which means creating virtual separate networks using the same physical infrastructure. These sliced networks are aimed at “industry verticals”: transport, energy, health, etc. The paper does not explain why the allowances for “specialised services”in BEREC’s proposed rules would not make this possible. The lobbyists’ manifesto simply threatens that investments will be delayed unless regulators find a way to “reconcile the need for Open Internet with pragmatic rules that foster innovation.”

The mythical golden days of the Open Internet as a geek run paradise of free expression may have passed — but we still need to keep in check these kinds of statements. For starters, it is hard to see what can be more pragmatic and innovative than the deceptively simple technical standards that built the Internet.

The protection of particular traffic and the development of specialised software based networks in itself may not be an issue. Everyone would want their self-driving car — or school bus, or street cleaning robot — to be as safe as possible. The relationship between industrial machine-to-machine traffic and human oriented traffic may not be the critical angle either. After all, media and entertainment appear in roadmaps as just another industry that can get its own slice of the cake. Net neutrality rules would appear to leave enough flexibility for such developments.

The main problem with the vision for global mobile hyper connectivity proposed by industry and the ITU is that it may hamper innovation by locking in the future profits of incumbent telcos and locking out citizens and SMEs from an internet-of-everything controlled by Siemens, Thales and other mega-conglomerates. A future mobile communications system purely driven by the needs of industry will also derail the social innovation required to get the European continent out of the current crisis. Freedom of expression may not thrive in the same way in such a controlled environment. For example, paragraph 18 of the BEREC text clearly states that machine to machine communications like smart meters are "outside the scope of the Regulation, unless they are used to circumvent this Regulation."

What the manifesto really says is that telcos are fed up with seeing connectivity becoming a commodity and will only invest if they can create a differentiated market and charge a premium for exclusivity. This is a natural demand, and fair play to them. They should explain how this will not lead to a repeat of the extortionate prices for mobile communications we are only now barely starting to leave behind. Someone will have to pick up the tab. What is more depressing is seeing the European Commission once again uncritically supporting big businesses’ demands, as if that was the only kind of industrial policy possible.

The future of mobile connectivity is too important to leave it to a small group of profit seeking organisations and bureaucrats. Society needs to be part of the discussions on strategic telecommunications such as 5G, in the same way we accept that decisions on high speed rail or nuclear power need a wider input. These developments will affect our lives and will cost taxpayers billions of dollars, euros and pounds.

It is unclear whether the mobile telephony model based on ITU top down standards, absolute government control and centralised infrastructure built by a handful of large companies can deliver the kind of ubiquitous connectivity required in the future. The Open Internet that everyone claims to protect has been a success so far precisely because it has taken a very different route based on open standards, decentralisation and multi-stakeholder governance. Large investments will certainly be required, but the role of industry and ideas of profit rewarded risk and investment may need to be questioned for projects that are too critical to fail.

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July 12, 2016 | Ed Johnson-Williams

Net neutrality in Europe: what are the issues?

BEREC, the European telecommunications regulator, is consulting on net neutrality at the moment.

Net neutrality is the principle that Internet Service Providers should treat all data on the Internet equally. This might sound dry but it's crucial. It means that ISPs can’t arbitrarily decide that some content, applications or services should be given priority, delivered faster, or blocked.

This has helped ensure that ISPs have to compete with each other and so helps keep broadband prices down. It also minimises the restrictions on which parts of the Internet you can access and how quickly you can access them. Finally, it helps startups to compete with big Internet firms and supports innovation in the digital economy.

The European Parliament adopted a new regulation on net neutrality in October 2015. There are good things in the regulation including the requirement for Internet providers to tell customers in contracts what the minimum, average and maximum bandwidth of any Internet access connection is.

Unfortunately, some areas of the text are not clear and are open to abuse. Because the text is unclear, the European Parliament in effect left it to BEREC - the European telecoms regulator to decide how to interpret the text.

BEREC published its draft guidelines on how it was going to interpret the net neutrality regulations and a consultation on those guidelines in June 2016. The consultation is open until 1pm on Monday 18th July (UK time). The Regulation says that BEREC will have to publish its final guidelines on Tuesday 30th August 2016.

The campaign is asking people to contact the BEREC consultation to call for the rules to protect ordinary Internet users and the online economy. You can take part in the consultation through here before Monday 18th July 1pm (UK time).

Major concerns remain in particular about three areas: specialised services, traffic management, and zero rating.

Specialised services
There are concerns that the BEREC's guidelines could allow companies to pay ISPs to become Specialised Services - whereby the Internet traffic from their service would be delivered more quickly. This is one of the headline concerns of net neutrality campaigners - that big companies could pay to join an Internet 'fast lane' to the detriment of smaller companies. is calling for BEREC to ensure rules and systems are in place to guarantee that if a company is granted a specialised service that the optimisation is objectively necessary for the service to be accessed. If there is a comparable service on the open Internet, a specialised service should not be granted. also calls for ISPs to ensure that if the quality of Internet traffic to and from specialised services is improved, that the quality of Internet access for everybody else is not harmed.

Traffic management
ISPs can manage traffic on their networks. This means they can prioritise certain traffic and restrict the speed of others.'s position is that traffic management should be used for a specific purpose, with the least intrusive measures possible, and for limited time when it is genuinely necessary to achieve a legitimate goal. There are also concerns that because ISPs cannot tell what services or applications their customers are using when they use encrypted connections, such data may automatically put in a “slow lane” and that this may disincentivise the use of encryption.

Zero rating
Zero rating is the commercial practice of Internet Service Providers not counting data downloaded from certain applications or services towards a customer's download cap. Although it may appear to save consumers money, the effect of it can be that the ISP becomes a gatekeeper on which services you can use or are incentivised to use. It helps big companies to protect their position in the market and harms their competition. It is common in some parts of the world but we are unable to find examples of it in the UK. The campaign is calling for BEREC to clearly prohibit zero rating.

There is a comprehensive list of FAQs on these issues on the website.

Remember you can take part in the consultation through here before 1pm on Monday 18th July.

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July 08, 2016 | Javier Ruiz

Overview of the Digital Economy Bill 2016

Our first impressions on the Digital Economy Bill 2016. We will be looking each section in more detail over the coming weeks.

Digital Economy Bill 2016

The Digital Economy Bill 2016 was announced in the Queen’s Speech 2016, and has its first reading in the House of Commons this week. It will deliver several policy initiatives that ORG has engaged with over the past two years. Over the coming weeks, we will provide further analysis and campaign around the many issues raised by this far reaching Bill.

The Digital Economy BIll looks like the drawer where all the "fix the internet" ideas that the current government has been considering over the past few years have ended up. Digital rights activists will be busy for some time.

• Part 1: Access to Digital Services

This part of the bill seems the least controversial and likely welcome. The government is introducing a new broadband Universal Service Obligation (USO) of 10Mps and enhancing Ofcom’s powers to demand more transparency and compliance. We will be looking at this part of the Bill to see if there are any potential pitfalls, or improvements that can be presented as amendments.

• Part 2: Digital Infrastructure

This part includes a highly technical series of measures dealing with a range of infrastructural issues, from land acquisitions to spectrum management. There seem to be few digital rights issues.

• Part 3: Online Pornography

This is a very problematic section. After several years of discussions, the government is finally making it compulsory for all porn websites available in the UK to implement age verification. The Bill covers all commercial websites designed for sexual arousal, including materials classified as 18 and not only R18 (the hardcore that must be sold only in sex shops), located anywhere in the world. On demand services are excluded, and there are issues with the definition of commercial, but the intent is to capture as many websites as possible.

A new regulator will be created to deal with this challenging idea. There are very serious privacy and security issues here -  the potential data breach of British citizens' porn preferences and credit card details, is a blackmailer's paradise. The mechanisms for age verification are not defined and making this work in a privacy respecting manner will be very difficult, if even possible. Simple mechanisms such as providing a card or inputting a date of birth will not cut it. The Digital Policy Alliance (DPA) has been working behind the scenes with the porn industry and other sectors to try to define an industry led standard for age verification. We have heard some vague ideas about using smart crypto and decentralised trust frameworks similar to the government initiative Verify, but there are no details available.

The main enforcement mechanism appears to be based on the wider “follow the money” approach we see in copyright debates. The regulator will work with payment providers to remove sources of income. It is very unclear how this is going to stop advertising funded websites as porn specialist ad networks may not be easy to get on board. The Bill also includes injunctions, but we need to analyse properly to what extent blocking will be used.

Original proposals to use the existing web blocking infrastructure for the mandatory blocking of all porn websites unless they complied – a whitelisting of age verified sites – seem to have been abandoned. But it is unclear if an aggressive regulator could use the powers in the Bill to block sites. We have concerns that making payment providers a core element of enforcement is part of the slippery slope away from due process and clear state responsibilities in Internet regulation.

• Part 4: Intellectual Property

The penalties for “online infringement” (communication to the public) are being increased from a maximum of two to  maximum ten year prison sentence. We ran a campaign during the consultation and it seemed that we had won the argument, but political pressure eventually bypassed the consultation process and other evidence.

Partly in an attempt to deal with headlines that this was “10 years for filesharing", the IPO has rewritten the definition of criminal liability. They told us during meetings that the new definition would make it very clear that ordinary internet users - including filesharers - would not be targeted, and raising the penalty would also mean narrowing its application to real criminals. Unfortunately the final draft appears to be as bad or worse than the original, with a very low threshold of “having a reason to believe” that the right holder will be exposed to “a risk of loss”.

• Part 5: Digital Government

This part of the BIll is the conclusion of the long process of open policy making on data sharing, where ORG has been involved throughout. There are no big surprises there, and we have summarised the issues and concerns in various blogs and consultation responses.

Some of the proposals are not too problematic, such as sharing data to help to deliver winter fuel discounts, but when put together they amount to a massive shift in data processing across government. The safeguards proposed are not always strong enough and are mostly placed in codes of practice of dubious enforceability. Some of the proposals are more worrying. We have raised concerns particularly about the bulk sharing of civil registration data - births and marriages - without any apparent purpose limitation and with thin safeguards.

The proposals to share the data of people in debt across government departments are also worrying as they could affect vulnerable people and may not deliver benefits without changes to how data is handled. Even if governemnt departments know that someone also owes money elsewhere, they cannot cancel or reprioritise the debt. Despite repeated assurances to the contrary, it is hard not to see this new power as connected with the new privatisation of debt collection across government with the Debt Market Integrator. It appears that the bill is creating the data sharing powers to enable policies that have not been properly outlined or discussed.

ORG will be seeking improvements in some areas: tightening purposes, strengthening safeguards and moving these from codes of practice to the face of the bill, and making any reviews proper sunset clauses requiring a Parliamentary reboot, rather than a ministerial nod.

We will also ask for the removal of the disproportionate powers for bulk sharing of civil registration, or at least severe restrictions on their scope.

• Part 6: Ofcom and Other Regulation

An omnibus within the omnibus Bill, this part contains a ragbag of measures around OFCOM, e.g. appeals process; but also apparently the power for the BBC and public service broadcasters to charge Sky and Virgin for retransmission. This is another area where we need further work picking up any issues.

There are also new powers for the ICO to deal with direct marketing and nuisance calls, which seem much needed, but may need improvements.

We will be campaigning on various aspects of the Bill. Get in touch or join ORG if you’d like to get involved.

Bill supporting documents Bill in parliament

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