Joris van Hoboken

Chris Soghoian’s research about law enforcement access to customer records in the United States, made it to the Cobert Report:

Rosalie Marshall reports for V3.co.uk that the Global Network Initiative, which was launched in the end of 2008, still did not find qualified staff. The result is that the initiative is failing to really take off. What could stand in the way of finding a qualified director, if the network of participating companies, non- profits and research institutions includes some of the biggest names in their fields?

As the principles that have been adopted by the initiative could probably help to bring this global discussion about freedom of expression and privacy in a global environment to a higher level, this is quite a pity.

In an important decision the French Constitutional Court has declared the core elements of the proposed three strikes law in France (Hadopi) unconstitutional, considering the freedom of expression and communication, the presumption of innocence, the right to privacy and confidentiality of communications.

This puts further pressure on the Council of Ministers to respect the EP’s adoption of amendment 138, requiring member states to respect the fundamental rights of internet end-users in the context of internet access. The Dutch minister of economic affairs recently wrote a letter to the Dutch parliament, stating the Dutch government did not consider the three strikes strategy to be acceptable. The letter also refers to the new (constitutonally problematic) Dutch notice and takedown code of conduct (my translation):

In the Dutch context, a procedure to deal with end-users with bad intentions is also not necessary, because, partly at the government’s urging, we have adopted a code of conduct on the basis of which internet providers, at the initiative of law enforcement authorities, take action themselves against criminal activity such as child pornography (notice and takedown code of conduct). It will have to be clear that the amendment does not interfere with this code of conduct. The Netherlands wants further clarification of the amendment before it can take a definitive point of view. In particular, it will have to become clear in which cases there should be a prior judicial decision and ion which cases not.

The Dutch government expects the Council to reject the Telecom package as adopted by the EP and the negotiations in third reading to be restricted to amendment 138.

This is a really great lecture! Julie Cohen manages to touch upon almost everything I am interested in, in about half an hour.

The European Parliament has just carried for the second time amendment 138 that aims to offer internet users protection against disconnection and other interferences with fundamental rights:

(fb) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened, in which case the ruling may be subsequent.

This meant the compromise between the Council and the Parliament, which had weakened the protection was not adopted. The Greens and ALDE (which withdrew their support for the compromise just before the vote) called for a procedural but very important change to the voting order. The EP president Wallis agreed that the EP should again vote on the original and retabled amendment, because of its political importance. The EP than adopted it. It can be expected that its adoption will bring the Parliament in collision with the Council, which threatened the Parliament not to destroy the 1.5 year work on the review with its (supposedly) radical stance on internet freedom. The amendment severely restricts France in its plans to adopt its three strikes regime for copyright infringers.

The parliament also adopted several amendments from the Harbour report weakening net neutrality.

UPDATE

Monica Horten:

European Parliament rejects Telecoms Package

The Telecoms Package will go to a third reading following the vote in favour of a users rights amendment by the European Parliament this afternoon. The original Amendment 138 passed with 407 in favour, 57 against and 151 abstentions. The vote means that the EU debate on the future of the Internet and civil liberties will continue into the Swedish Presidency, with the possibility that a solution can be found which is acceptable to users and to industry.

**Catherine Trautmann: “When a single point of the “compromise” was not adopted, the whole Package will go to Conciliation”

**European Parliament President: “I think the Parliament has understood the consequences of what it has done”

The vote was tense. Rebecca Harms (German, Greens) spoke twice to change the order on the voting list, which had been set up to mitigate against the adoption of Amendment 138. She looked nervous as she did so. Alexander Alvaro, (German, ALDE) also spoke and asked for the voting order to be changed. The President agreed to the change on the basis of Rule 155. MEPS were given extra time to make their vote, and the vote was recorded electronically, so that the names of the MEPS will be available showing how they voted. The large number of abstentions could mean that many MEPs were opposed to the “compromise” but were too frightened to vote in favour of Amendment 138.

PC Impact:

L’amendement Bono une nouvelle fois voté et plébiscité! Bono en concert!

Selon les informations qui viennent de Bruxelles, malgré une énorme pression sur les dernières heures, l’amendent 138 a été adopté ! Selon les premiers détails, il y a une demande des Verts de réinverser l’ordre du vote en faisant passer le 138 devant l’amendement Trautmann. Une première inversion avait eu lieu voilà quelques jours où, au surplus, une mention indiquait que l’adoption de l’amendement de compromis Trautamnn faisait automatiquement tomber le 138. La présidente ALDE Rebecca Harms a senti la trappe et est revenue sur un ordre plus logique.

Conclusion ? L’amendement Bono a été voté à 404 voix pour, et 57 contre, avec donc énormément d’abstentions !

Et maintenant ? Tout le Paquet Télécom est repoussé ! Il va donc repasser en conciliation en troisième lecture à la rentrée, avec de nouveaux échanges avec le Conseil. « On rempile pour 3 ou 6 mois de Paquet télécom » nous confie à chaud Jérémie Zimmermann, cofondateur de la Quadrature. Pour lui pas de doute, « c’est une formidable victoire, le fruit d’une mobilisation exemplaire au travers de toute l’Europe qui a montré l’importance des libertés numériques. Les débats ont permis d’affirmer que l’accès Internet est bien un droit fondamental en totale contradiction avec le projet Hadoi actuellement débattu à l’Assemblée nationale. Ce vote finit d’achever Hadopi ! »

L’amendement 138 qui fut redéposé par les Verts et défendu également par « son père », Guy Bono, dit qu’ « aucune restriction ne peut être imposée aux droits et libertés fondamentaux des utilisateurs finaux sans décision préalable des autorités judiciaires ».

The American Library Associations have filed their amicus brief to the Google Books Settlement approval procedure. They call for strong judicial oversight, stronger guarantees against possible abuse of market power, and more emphasis on intellectual freedom and privacy protection.

I have been following the settlement proceedings, mostly through James Grimmelmann’s efforts, and was looking forward to the libraries’ position on privacy and intellectual freedom. I have to admit that I am a little disappointed.

On privacy, the brief concludes:

In response to concerns raised by libraries and others, Google has stated that it will take appropriate measures to protect user privacy. The Library Associations expect Google, in consultation with the Library Associations and other representatives of user interests, to meet this commitment. Google and the Registry should develop strong policies to protect personally identifiable information, and provide users with clear notice describing those policies.

In other words the brief does not call for limitations on the registration of individual reading habits or the further use of such information. And the problem that the brief does not address is the lack of protection against government access under US law. Without legislative action, the reading records that would be collected by Google are accessible with a simple subpoena. Google and the Registry can settle what they want, and the court can approve what it wants, they cannot offer additional protection under US law against access by law enforcement and national security agencies.

On intellectual freedom, a library term for freedom of expression and information, the brief discusses Google’s discretion to exclude books for editorial and non-editorial reasons. A recent debate over library censorship shows how real these concerns are in the United States. The brief notes:

While Google on its own might not choose to exclude books, it probably will find itself under pressure from state and local governments or interest groups to censor books that discuss topics such as alternative lifestyles or evolution. After all, the Library Project will allow minors to access up to 20% of the text of millions of books from the computers in their bedrooms and to read the full text of these books from the public access terminals in their libraries. Although public libraries have often contended with demands to eliminate or restrict access to specific books, any collection management decision by a particular librarian affected only that community.

What the brief fails to notice, is that the books in the Google Books Program are already available somewhere in a United States library. One would expect this to mean that the material is legal and suitable for American readers, from a librarian’s perspective at least. Why would libraries agree to an extra round of editorial discretion with regard to material that has been carefully selected already?

The remedy proposed in the brief is accountability through transparency. The Court, overseeing the settlement, should be able to direct Google to provide a list of excluded books with a motivation for these exclusions. This will probably be enough for Google to think twice about excluding books for bad reasons, but I would have expected libraries to take a stronger stand on (private) censorship and simply oppose the removal of books from Google Books because they would be unsuitable for children.

The respectable LSE professor Willem Buiter has ‘taken up’ the debate on regulating search and is all in favor. In fact, he proposes to regulate Google (not search), and more precisely to break it up and put it out of business if possible.

I must say that I do like his style of writing and I agree that Google’s treatment of privacy and copyright are important issues to discuss. But unfortunately, the content of the essay is not all of high quality: it’s a kind of Google bashing that could ultimately do more harm than good, because the debate about Google in Europe needs economists like Buiter to explain what’s going on or even better to lay out a vision for the policies and laws of the future.

Copyright and theft

I have a particular problem with Buiter’s claims about copyright and Google. He claims that some of Google’s services are (or should be) illegal under copyright law:

Google has been making available copyrighted material for download on its websites for years (books through Google Books, music through YouTube, newspaper material through Google News), often without obtaining prior consent of the copyright holder and generally without making any payments to the copyright holders. There is a word for that kind of behaviour: theft. Just because you steal using internet technology does not make it anything other than theft. As an author, this naturally concerns me.

It’s hard to defend that YouTube is illegal altogether, simply because users can upload infringing videos. In addition, Youtube is more and more positioning itself as a partner for the audiovisual industry, because it seems need them to monetize the service. It would be helpful to get an economic perspective on that.

The Google Book Search scanning program is more complicated. From Buiter, one would expect an analysis of the public welfare benefits of a comprehensive full-text book search service.

Finally, the word ‘theft’ obfuscates the nature of the protection of intellectual labor through legally enforced monopolies for a period of time. This protection can hardly be called property. It’s not unfair to profit from each others intellectual work. The whole idea of copyright protection is to make it profitable for society as a whole. A university professor and successful author should know that.

With these superficial remarks Buiter does not add anything to the debate about copyright and Google, other than his name and some exaggerated qualifications in defense of an industry that opposes change but should be looking for answers instead. His claims are normative without economic foundation. If anything, the news, music and publishing industry probably need the platforms provided by companies like Google and Yahoo to retain some control over consumption of creative products.

Privacy

Buiter’s complaints about privacy and the importance of default settings are more to the point. He is rightly concerned about the unprecedented collection of user data by companies like Google and Yahoo and the access to that information by government agencies. But I dislike and distrust his reference to the maltreatment of copyright in this context. Politically, these issues are of a completely different nature.

Can we trust Google not to abuse the information they collect? Of course not. This is a profit-seeking company. Its owners, CEO and top managers are typical amoral capitalists who want to make as much money as they can without ending up in jail. Their ruthless, unethical behaviour as regards copyright, Of course we cannot trust them. They must be regulated and restrained by law so we can sleep at ease even though we know we cannot trust them.

I do agree that Google and others should develop an anonymous search experience and use an opt-in for their behavioral targeting program because I think that access to information and ideas should remain free (as in freedom). But default settings are hard to regulate, as an economist should know, because there are so many different products and services, default settings are part of the innovation, it’s partly a matter of technological design and legally speaking contractual freedom poses a hurdle to reckon with. It’s to simple to compare this with H-bombs. This is precisely the type of ‘do no evil’ engineering ethics that makes it harder and not easier to debate the real issues.

Buiter’s opt-out?

Buiter finishes his rant by claiming that he will start deleting everything from Google. Maybe he should also ask the FT to remove his blog from Google search (by adding its directory to this file), remove his website and publications, and tell his agent to stop advertising his speaker qualities through Adwords. Or maybe Google does offer something valuable? I hope Buiter will reconsider and come up with some more realistic proposals.

(sidenote: I took the first part of the title from a reaction to his article at the FT site.)

The Financial Times has an article giving some insight into the debate that will have a huge impact on freedom of expression and access to information in the EU. The main point of discussion is whether fundamental rights have to be taken into account when end-users would be disconnected from the network, something that is being pushed as the new copyright enforcement strategy.

European Council diplomats seem to be thinking this is not the case:

A spokesman for the rotating EU presidency said: “None of the existing conventions and laws recognise internet access as a fundamental right on its own. It is simply one of the means of access to information.”

This is a flawed position. I think it is so clearly wrong that I hope it will backfire on them. Freedom of expression and freedom of communication are protected by Article 8 and Article 10 of the European Convention on Human Rights and the EU Charter. Although there might not be an explicit fundamental right to access the Internet in most European Countries, the Internet is the most important communicative medium for European citizens. The Internet is NOT ‘simply one of the means to access information‘. European institutions recognized as much in a host of official documents. Access to the Internet is a prerequisite to communicate effectively, by email, VoIP, over social network sites, and to find and access information, ideas, and services, including an increasing variety of e-government services. EU Member state Estonia does recognize access to the Internet as a fundamental right explicitly.

The European Court of Human Rights recently stated:

“In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.”

To disconnect people from this communications and information network, thereby limiting its “important role in enhancing the public’s access to news and facilitating the dissemination of information” is simply an interference with the right to freedom of expression and communication that need to be legitimized. The Parliament’s efforts, which would merely ensure that European citizens are not unduly banned from the net, not only deserves support, it could be strengthened. In fact, the current proposal by the Parliament is simply a restatement of fundamental legal principles that an interference with fundamental rights as serious as a ban from the Internet need to follow due process.

Clearly, the opposition from the Council has also to do with the lack of will of member states to harmonize procedural safeguards:

Opponents say this is an issue of legal enforcement over which Brussels has traditionally had few powers.

But, the procedural safeguards proposed by the Parliament are simply a reaction to the attempt to high-jack telecommunications regulation in the interests of copyright enforcement. Disconnecting users from the net is not a good solution. The European Parliament should stand by its efforts to curtail disproportionate enforcement strategies that impact on communicative freedoms.

A final meeting between the parliament, Commission and member states is due tonight, with no further opportunities to agree a deal before the elections without the entire package being reopened.

A spokesman for the Commission stressed that “a solution [on intellectual property protection] must be found, and we believe it will be found”.

Google has just launched a new option for its search results, in the United States only. United States based users can (through their Google account) edit a personal profile to be shown in Google’s search results. Google presents the move as giving users more control over what people find if looking for them:

To give you greater control over what people find when they search for your name, we’ve begun to show Google profile results at the bottom of U.S. name-query search pages.

The move makes sense in a number of ways. It gives users a (limited) remedy against a bad ego- search page. Users enrich their profiles because they need to add enough information to the profile for the profile to be shown. And users also help Google to do better people search.

Maybe it’s not surprising that the feature remains limited to United States users. People search is controversial under European privacy laws (p.13-14). Google usually defends itself against application of data privacy rules with regard to personal data in their search results with the argument that it is a passive intermediary (p. 4) - Google’s own link is broken . In particular it argued that:

[...] the Google search engine is not responsible for the creation of content on the web, nor are its search results intended to form a profile of any individual. Rather, Google responds to user search queries with links to what appear to be relevant pages.

Of course, that isn’t entirely true. Google knows it when you look for a natural person, and tries to return relevant results too. It’s irrelevant if the processing is automated. In a recent law article (in Dutch) I discuss these issues in more depth. In particular, I point to the outdated media exception in Article 9 of the Privacy Directive:

Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

In my opinion, this exception should be extended to cover some of the activities of internet intermediaries and search engines. The data privacy directive, in its current form, is ill-suited to govern the public processing of publicly accessible personal data. The principles make a lot more sense for people search activities.

A few weeks ago I gave a short interview on RFID, privacy and the Big Brother Award for the Dutch citizen in 2007. The video is posted here (the third video, titled ‘Le citoyen européen sous surveillance’ (by Florence Morice).