11 March 2011

Digital Oblivion: To Be Or Not To Be?


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1 if 3 Zoom blur experiment - Woodphoto © 2008 Mike Baird | more info (via: Wylio)

Have you ever tried to search the web for information relating to yourself?
If yes, how accurate were the results that showed up, say, in Google?
And what would you do if you found information or data that were not really up-to-date, or were inaccurate or even libelous?

Well, you might rely on the law of data protection and undertake certain actions. And if you are domiciled in Spain, which is known for its higher standards on data protection, your actions are likely to be more fruitful than elsewhere.
This is at least what the story of the Spanish doctor Guidotti Russo evidences.

Imagine

that a 20 years old newspaper article covering some accusations against you, is still being accessible via Google’s search engine. Imagine further that, in the mean time,  you have been cleared from all those accusations.
What would you do? Or put another way, what are the remedies you may rely upon?

The law on data protection

in the European Union is approximated by the Directive 95/46/EC. Accordingly, its Article 6 provides that “… every reasonable step must be taken to ensure that data which are inaccurate or incomplete… are erased or rectified.”
This is what Dr Russo appears to have requested before the Agencia Española de Protección de Datos, namely that Google be ordered to cease the access to that newspaper article.
Not surprisingly, Google, asserting the right to information access, did not obey and the issue landed before an ordinary court in Madrid.
From what I read, this court has been considering to ask the Court of Justice of the European Union for a preliminary ruling.

Other commentators on the Web did already make a link between this case and

“The right to be forgotten”

which the European Commission recently presented in its communication COM(2010)609. That oddly named right seems to be a part of Commission’s plan to revise the data protection rules, in order to strengthen individuals’ rights.
The Commission defines it as “the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes. This is the case, for example, when processing is based on the person’s consent and when he or she withdraws consent or when the storage period has expired;”

Hmm, I do not see any significant difference to the language of the Data Protection Directive I quoted above. Do you?
So, I guess clarifications will follow.
Anyway, my personal opinion is that a right to be forgotten should result in a mechanism of data self-destruction or data fading away which individuals should be able to configure as they like. Equally important, such right should be incapable of being contractually waived. 

Once introduced, however, a right to be forgotten will very likely collide with another fundamental right –

The right to access information

It is obvious – in today’s information society the right to access information has become important more than ever. Data or information that is subject to a self-destruction will, however, seriously challenge that rights’s fundamental character.
At a first glance, this argument seems to hold water.
But hey! What data should the right to be forgotten concern?
Is it not about personal data?
And since it is, why should someone else’s right to access my personal data trump my right to determine whether that someone should access it in the first place?

Invitation to discuss

For me, the existence of a digital oblivion right evokes questions upon questions. It appears to be a really promising discussion topic, does it not?
Hence, do not hesitate to tell me what you think about it!

 

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27 January 2011

All Quiet On The IP Enforcement Front?


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Intellectual Property Zonephoto © 2008 Robert Nunnally | more info (via: Wylio)

As recently as on 22 December last year the European Commission issued its long awaited report on the application of Directive 2004/48/EC that deals with the enforcement of intellectual property rights (“IPRED”). The report represents a very interesting read and is accompanied by another, no less interesting, paper – the Commission staff working document. I strongly recommend reading those two records or, alternatively, the analysis thereof outlined in this very blog post.

If you are still reading this article, I assume you are definitely aware of the IPRED and I will skip its introduction. And since the above documents almost sound a charge against the Internet and its users, I will limit my explanation only to the Internet relevant issues.

Not surprisingly, the Commission stresses on the difficulties rightholders have been experiencing while pursuing IPR infringers on the Internet. Accordingly, those difficulties are attributable to “the relative anonymity of the Internet” as well as to the fact that the IPRED “does not sufficiently address this constantly growing, serious problem”. The latter appears somewhat inconsistent, since the IPRED equipped rightholders with a set of strong weapons – the so called right of information and the specific injunctive relief. The staff working document refers to the right of information as “an important tool for the rightholders to pursue … IPR infringements committed via the Internet such as illegal file-sharing of protected works through peer-to-peer protocol.” Further, and with respect to the injunctive relief the same document reads “Internet service providers, being the intermediaries between all the users of the Internet, on the one hand, and the rightholders, on the other, are often placed in a compromising position due to the infringing acts of their customers….It results from Member States’ reports that injunctions against intermediaries are used relatively often as the infringers are often unknown.

No doubt, these measures were clearly adapted to bring “intermediaries” (mainly Internet service providers, ISP) down to knees so they eventually provide the rightholders with the personal data of infringers on the Internet. So where are the difficulties?

Hmm, let us think about this one: what used to be the shield that (nearly always) managed to block rightholders’ weapons’ attacks?

Bingo, it is the law on privacy and data protection!

Indeed, the Commission notices that in some member states, pointing out Spain and Austria, ISP are practically not in the position to disclose the relevant information  in infringement proceedings. The reason therefor would often lie in that ISP are under data protection obligations resulting in the erasure of the data they might have previously gathered.

This is the point where the Commission touches the sore spot of the IP enforcement on the Internet – the fairly notorious conflict between the fundamental right to property and that to privacy. The Promusicae landmark decision is quoted as Community law’s requirement to fairly balance those two rights. However, this is followed by a caveat stating that “the European legal framework on the protection of personal data/privacy on the one hand and enforcement of intellectual property rights on the other is neutral, in that there is no rule that would imply that the right to privacy should generally take precedence over the right to property or vice versa” . I understand it like Commission’s reluctance to enter the territory of the Court of Justice of the European Union. What do you think?

Interestingly, but the Commission is very careful and even anxious on data retention. Nevertheless, their statement evidences that the purpose of data retention has never been directed to perpetrators of “serious crimes”, but rather to file-sharers.

A word should be dedicated also to the current absence of harmonized protection through criminal law. The Commission submits the fact that almost all member states provide for criminal measures to protect IPR, but the national definitions and level of penalties vary. That is, in the view of the EC, a “serious obstacle and may hinder the cross-border cooperation between the law enforcement agencies.”

All in all: the report has many bad news to tell. What could be its impact on the Internet users? Well, I guess that the Commission will initiate a new legislation to deal with the points and outcomes made in the report. Consequently, we should prepare to face more stringent civil sanctions, data protection undermining information requests and harmonized criminal measures.

Will they be capable to fight “Internet piracy”? I doubt it, unless the entertainment industry comes up with suitable lawful offerings. It is odd, but even the report admits that “file-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content.”

In the end, is there anything that Internet users can do in order to prevent the impact of the report? Yes, there is! You can all participate in the consultation the Commission set up on the report.

Raise your voice, because it is not all quiet on the IP enforcement front!

 

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21 January 2011

Of Sushi and Data Protection


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Just ordered a large set of sake sushi on the phone.


Credit: Ricardo Bernardo

Again, I had run a long day and needed some refreshment. I rang up, could order pretty fast and felt well-served.

Besides one thing.

They knew who I was and where I lived. I was not even supposed to tell them my name… Strange, I thought, and started speculating how could those guys have obtained my personal data. Could that be, since I have ordered there already? However, what was even more worrying: what were/are they going to do with that?

Why am I concerned? Because I do not like to represent a record in a database whose existence I could not even assume. This is the reason why data controllers have an explicit obligation to obtain data subjects’ (written) consent prior to processing their data. Otherwise such processing is not lawful according to our fancy legislation on data protection.

To the best of my knowledge, I have never allowed the sushi restaurant to process my data. In order to be absolutely sincere, I checked their website while composing this blog post. Their general terms and conditions are just as silent as the fish they make sushi of.

It is funny, but data protection provisions were once introduced to oppose the dealings of state agents. Nowadays data traders are their primary objective and that does not surprise, since data are considered tradable commodities. Some of them are – depending on their exposure to the public – deemed really precious.

So, I will let those sushi makers know of their lack to comply with stringent law. I thought of writing them an email so I will not forget to tell them how good their sushi was.

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9 March 2010

Spam


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Spam & Baconphoto © 2010 Robert Simmons | more info (via: Wylio)

I guess every Internet and e-mail user has at least once received a spam, scam or any other sort of a junk mail in their inbox. So far, the system admins at my employer have always managed to filter such undesired messages. Yesterday, however, I received an e-mail that has apparently succeeded to overcome the protection designed to restrain it.

It is not the usual marketing spam telling you how to buy cheap watches or to enlarge certain body parts, but rather a scam mocking an urgent situation. The sender pretends to be Marina Encheva and the e-mail reads as follows:

How’s everything on your end? This has had to come in a hurry and it has left me in a devastating state. I travelled to UK for a volunteer Training Program (UTP 2010), unfortunately for me I was robbed and my wallet was taken at the hotel where I lodged. The Embassy only cleared me of my travelling documents and ticketing since I came in on unofficial purposes. I only need to clear the hotel bills before I can leave but ofcourse they stopped billing me since the incident. I didn’t bring my phones here and the hotel telephone lines were disconnected during the robbery, so I have access to only emails. Please can you send me £1370 as early as possible so I can return home. As soon as I get home I would refund it immediately, I need you to get back to me so I can let you know how to send.


I’m looking forward to hearing from you.


Regards,

Marina.

So what – could the well informed Internet user ask – spam should not bother you anymore in these days – do not overestimate it! To an extent that would be fine – I would reply – but there are not only well informed users surfing the net. The average users’ age is said to amount to 28 years and as a result of Web 2.0’s advent more and more minors are entering the net. No doubt, the Internet brings many advantages that oftenly show its bright side, but spam, scam & Co show definitely its dark one.

Spam mails are in the most times misleading or even fraudulent. Hence they have the potential to cause damage to their recipients. Yes, just look at the above spam mail and consider the “professional” drafting skill applied to create it. The most users, I am sure,  would cross-read and then delete such a mail. A certain, maybe small percentage would read it carefully, and then spend some time questioning its authenticity prior to deleting it. An even smaller percentage might consider some support and probably contact the sender with an offer to help. That’s it, that’s how it works. This is what these guys are aiming at.

It is possible that the sender’s e-mail account has been hacked and misused by a wrongdoer. It is however possible that the sender is truly experiencing the described difficulties.

In any case, I will take the risk and have the sender, whoever she or he may be, wait for my reply until the cows come home.

 

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16 December 2009

Would you still use Yahoo!, if you knew they sold your personal data at a fixed price?


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Have you got an e-mail account on Yahoo! or do you use any of the services, such as messenger, groups or Flickr, provided by the Sunnyvale company? You were certainly aware of Yahoo!’s privacy policy, weren’t you? What you most probably did not know is the fact that Yahoo! surveil your personal data and then offer them to law enforcement at a fixed price. Not bad, huh?

Cryptome, a website hosted in the US that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance got the ball rolling since it has obtained and made Yahoo!’s Compliance Guide for Law Enforcement available on its website. Seemingly, Yahoo! were not amused and served Cryptome with a takedown notice based on the US Digital Millenium Copyright Act (DMCA). Stretching copyright law for the purposes of preventing access to information is an interesting, albeit not novel, strategy.
By the way, this is the reason why the DMCA and, particularly, its Section 512 has come under criticism – it causes a so called chilling effect on free speech.

So long Cryptome has not complied with Yahoo!’s demand and is still hosting the document in suit. It starts to get exciting!

14 December 2009

Will the data retention directive be fully implemented across Europe: a reprise.


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About a year ago I composed one of my first blog postings and asked “Will the data retention directive be fully implemented across Europe?”. The reason behind was the then pending decision of the ECJ caused by Ireland’s concern on the data retention directive’s grounds legitimacy and, the wrong way the directive was initially  implemented in Bulgaria.

Recently, I covered the startling decision of the Romanian Constitutional Court that rejected the data retention implementing act due to inconsistency with constitutionally guaranteed and fundamental human rights, such as the right to privacy. Seemingly, this decision will not remain a single one.

In a hearing, appointed for tomorrow, the German Constitutional Court is expected to deal with the mass-complaint filed by nearly 35 000 citizens in which they ask the Court to abrogate the provisions on data retention. I believe the whole data retention concept would then fall apart, if the German Constitutional Court decided in favour of the complainants.

Press releases in Austria which, in my view, attempt to encourage the government in its Fabian position towards data retention, even call for a final ruling by the ECJ on the overall legitimacy of the data retention concept. In such a case, the ECJ will have to scrutinise whether the data retention directive is conciliate with the Charter of Fundamental Rights of the European Union that, together with the Treaty of Lisbon,  is in force as of 1 December 2009.

27 November 2009

Romanian Constitutional Court abrogates data retention act


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The framers of the Data Retention Directive must have underestimated several factors in the course of its subsequent implementation. First Ireland brought a challenge before the ECJ then Austria still shows totally reluctant to implement. However, the big bang is currently unrivalled owned by Romania! This country’s Constitutional Court is the first to deliver a ruling that declares an act implementing the directive into a member state’s law unconstitutional.

Prof. Ioan Vida, Romanian Constitutional Court. Courtesy to BOGDAN MARAN / MEDIAFAX FOTO.

Now, after Dracula and Johnny Weissmuller, Romania has, in the person of Prof. Ioan Vida being the President of the Romanian Constitutional Court, good chances to be awarded a third VIP contribution to the world!

Basically, the Court pointed out that the law on data retention interfered with following articles of the Romanian Constitution: Art 25 Freedom of Movement, Art 26 Intimate, Family and private life, Art 28 Secrecy of Correspondence and Art 30 Freedom of Expression. In addition, the Court examined Art 12 of the Universal Declaration of Human Rights (UDHR), Art 17 of the International Covenant on civil and political rights (ICCPR) and Art 8 of the European Convention on Human Rights (ECHR) and found them affected too.

The Court recognized in its reasoning that neither the Romanian Constitution nor the ECHR prohibited state authorities to interfere with the rights mentioned above on a general scale. However, the Court, relying upon the judicateure of the European Court of Human Rights (ECtHR) in Klass vs Germany and Popescu vs Romania, opined that such interference was permissible only within a narrow path, fenced by sufficient safeguards to protect a person against arbitrary acts of state authorities.

The Court further opined that the legislator has created uncertainty because it used terms in the act that were either not or only ambiguously defined. Such uncertainty was contrary to the drafting techniques which the legislator was required to employ in the course of legislation.

Finally, the Court addressed critically two more issues in the act on data retention. The first critic dealt with the breadth of applicability of the act’s provisions – they were not limited only to wrongdoers, but covered also innocent bystanders. The second regarded the lengthy period of time for which the data were to be retained.

The entire above put together just fortified the majority of Court’s members to vote for the abrogation of the act.

Now, before the opponents and fighters of data retention fall in a state of euphoria, one has to consider that the Court did not reject the act per se. Quiet the contrary! To me, this ruling reads as a cooking recipe directed to the legislator. The recipe contains an enabling set of hints and aims to support the legislator to successfully implement that act later on.

 

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24 November 2009

The US cares for data protection


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IMG_1458photo © 2011 John Taylor | more info (via: Wylio)

 

Well, I agree the title of this post reads somewhat provocative. Nevertheless, it is driven by the criticism that European data protection practitioners usually express towards their US colleagues’ approach when dealing with privacy and protection of personal data.

This should not surprise as the right to privacy is a highly developed area of law in Europe. Accordingly, the European Union has long had a privacy framework for the processing of personal information that is different – and more restrictive — than privacy practices in the US. By contrast, the United States prefers what is called a “sectoral” approach to data protection legislation, relying on a combination of legislation, regulation, and self-regulation, rather than overarching governmental regulations (see “A Framework for Global Electronic Commerce“. To date, the US has no single, overarching privacy law comparable to the EU Directive.

The EU Data Protection Directive requires EU member states to provide for legislation that prohibits the transfer of personal data outside the EU. However, there are some exemptions from that rule, one of which applies where the EU has determined that the laws of the country of destination provide “adequate” protection for personal data. Among others, Switzerland and Argentina were determined to be such countries. In the late 1990s, the EU determined that the laws of the United States did not meet its adequacy standard.

However and in order not to totally prohibit the personal data transfer between the largest economies, the US Department of Commerce in consultation with the European Commission developed the “Safe Harbor Arrangement”. As a consequence, US companies that are under the jurisdiction of the Federal Trade Commission or the US Department of Transportation may enrol to that arrangement and process personal data submitted by European partners (subsidiaries) of theirs.

A company under the FTC’s jurisdiction that self-certifies its compliance with the Safe Harbor Arrangement, but fails to observe them may be subject to an enforcement action under Section 5 of the FTC Act, which prohibits unfair or deceptive trade practices.

After a decade without any enforcement actions, the FTC recently proceeded against seven companies and obtained consent orders against them.

While these actions by the FTC are said not to represent substantive enforcement within the Safe Harbor Arrangement, they do signify that companies need to be even more vigilant about the content of their privacy policies and marketing assertions.

22 November 2009

Data retention in Austria becomes even likelier


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Austria’s DerStandard informs that the data retention bill to amend the existing Austrian Telecommunications Act was in place. In a consultation procedure, the responsible minister Doris Bures has called upon the appraisal of the participants (eg regional authorities, chamber for commerce and industry, trade unions). She thereby vowed to apply “the highest standards under the rule of law” in drafting the bill.

Austria has not implemented the data retention directive yet, wherefore the European Commission threatened the government with the launch of infringement proceedings. Austrian politicians have used the data retention related set of problems in their last election campaign in 2008. For some period thereafter and, since the subject matter is highly controversial, no one appears willing to cease the delay in implementation.

Quite often, the enforcers of intellectual property rights have been viewed as the real beneficiaries of the data retention becoming a fact. Many of their lobbyists and legal representatives utilized the duration caused by the governmental delay in addressing the public and stating the necessity to access retained internet traffic data that evidences, for instance, illegal file sharing.  However and given an implementation, it is still unclear as to whether such enforcers shall have access to data so retained.

According to recent cases on file sharing, Austrian courts seem to opine that file sharers’ interest in the protection of their traffic and identity data outweighs the enforcers’ interests to access such data.

It is clear that the data retention could easily change the so established balance. I hope to soon have certainty on that.