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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11 January 2011

Hunted on Facebook, drafted by the Israeli Defense Forces


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Soldiers and the priest_1937cphoto © 2007 James Emery | more info (via: Wylio)

I am always curious to read news and articles related to social media networks and privacy. The last one I got aware of deals with Israeli women’s attempts to escape their duty to join the  military service alleging some religious reasons.

However, the Israeli Defence Forces (IDF) did not accept those allegations with just a good faith. Moreover, the IDF officers sought for applicants’ profiles on Facebook that possibly showed them being not that devoted to God. Reportedly, they were successful.

For me this incident is important for two reasons. First, it represents just another alert to all users of social media networks that ignore the consequences of sharing personal data with the world at large. Second, it comes at the same time with the EU Commission’s decision to declare Israel “an adequate” country in terms of data protection. Not that such an incident could not have happened under the jurisdiction of an EU member state, but the coincidence is somewhat symptomatic.

Now, what is the moral of the story? Once again, beware of what you share with others and do neither underestimate nor neglect the consequences. Last but not least, do not blindly trust in Commission’s choices as to a state of data protection adequacy.

 

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26 May 2010

Will Ireland eventually overthrow data retention?


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The Four Courts Dublinphoto © 2008 William Murphy | more info (via: Wylio)

There has not been much discussion in the aftermath of the German Constitutional Court’s ruling on data retention and the matter somehow started to collect legal dust. The recent Irish involvement, however, could cause the necessary aeration and preserve the issue from getting buried in oblivion.

Digital Rights Ireland, a non-governmental organization formed as a limited liability company under the Irish Companies Act, brought proceedings before the Irish High Court against the Minister for Communication, Marine and Natural Resource, the Minister for Justice, Equality and Law Reform, the Commissioner of An Garda Siochana, Ireland and the Attorney General because of latter authorities’ breaches against rights provided for by Irish statutes and Constitution as well as by European legislation. Claimant’s proceedings were triggered by Minister for Public Enterprise’s direction, issued in 2002, to the telecommunications providers in Ireland to retain data generated by customers of the telecommunications providers, purportedly in compliance with Section 110 (1) of the Postal and Telecommunications Services Act 1983. This direction was addressed by the Data Protection Commissioner who then threatened said Minister with the issuance of judicial review proceedings to challenge the validity of any and all such directions.

The response of the Irish Government was to pass the Criminal Justice (Terrorist Offences) Act 2005, and specifically the incorporation therein of the provisions of Part 7 thereof. Under that part of the Act, the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both.

This is also what claimant is combatting. They have asked the High Court to refer the matter to the European Court of Justice (ECJ). The questions the ECJ needs to deal with all relate to the validity of Directive 24/2006, in particular with rights under the EU and EC Treaties, the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR). The High Court, in its ruling, granted this motion of claimant.

It is somewhat surprising that another “Irish issue” will land before the ECJ in less than a year following ECJ’s ruling agaisnt Ireland in the Case C·301/06. In the latter, the ECJ found that Art 95 of the EC Treaty represented a sound fundament for the enactment of the Directive 24/2006 since it was apparent that differences between national rules adopted for the retention of data were liable to have a foreseeable direct impact on the functioning of the internal market which would become more serious over time.

However, following the debates in Bulgaria, Romania and Germany it was high time to have the ECJ rule on data retention’s – this time hopefully – not only procedural, but also material aspects. In a somewhat best case for the preservation of our all’s digital rights the ECJ might find against the Directive.

The hope, as is well-known, springs eternal – so let us hope the best.

 

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3 March 2010

German Constitutional Court abrogates provisions on data retention


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Bundesverfassungsgericht Karlsruhephoto © 2006 Johannes Bader | more info (via: Wylio)

Hear ye, hear ye, you all supporters of the fundamental right of privacy – 7 out of 8 German Constitutional Justices voted to declare the data retention provisions as applied in the Telecommunications Act and in the Code on Criminal Procedure null and void!

Enough of enthusiasm, however, we can go on observing the facts some of which may prove unlikely sobering when compared to yesterday’s news titles that went around the world.

You might remember that some months ago nearly 35 000 German citizens filed a mass-complaint in which they asked the Court to abrogate the provisions on data retention.

In reviewing the complaint, the Court makes an initial statement that the Federal German Constitution would not by itself forbid the retention of telecommunications traffic data for a certain time period. However, the data retention as transposed in German legislature interfered with the fundamental right of privacy in such a manner that the legal system was previously not familiar with. Hence to avoid such interference and, similar to the Romanian Constitutional Court, the German authority uses its ruling to create a recipe to be followed by the lawmakers in future. The main point made by the Court in its ruling, is the instruction towards lawmakers to observe the so called principle of proportionality (Verhältnismäßigkeitsgrundsatz).

Under reference of the above principle, the Court distills 5 requirements that need specifically be observed when drafting the prospective laws. In particular, the Court demands

– the adoption of specific provisions relating to enhanced data security and safety which the Court views mandated by the huge amounts of data to be retained;

– to safeguard that the retained data’s direct processing shall be limited to prevent only concrete danger situations arising out of  serious crimes;

– to ensure the transparency of data transfer by notifying the data subject in advance, and – where not appropriate – to subject the transfer to a respective court order and notify the data subject afterwards;

– to provide for the data subject’s legal protection amounting to, inter alia, data subject’s right to challenge the processing and transfer of their data before a court of competent jurisdiction, and – in case of breach of the above protection – to penalise such breach;

– to guarantee that indirect data processing for the purposes of IP address detection and identification, as may be the result of an enforced right of information , is not undertaken to prevent mere misdemeanours. The Court points out the importance of the latter as it states that such indirect data processing need not be subjected to a court order.

Put it all together, this long awaited ruling did hardly hit the jackpot being on stake: is the fundamental right of privacy the long expected silver bullet which is supposed to kill the vampire attempting to quench its thirst by accessing Internet users’ data? I personally read the ruling as a clear “NO”.

The Court does not really question the existence of data retention provisions. Moreover, it determines the borders of their constitutionally acceptable framing. See whether and to what extent the ruling will influence the EU member states that are still defaulting to transpone the Directive 24/2006.

 

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10 February 2010

Do not post on Facebook while wanted


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Facebook for Dummies, anyone?photo © 2008 David Fulmer | more info (via: Wylio)

 

Imagine you are wanted by law enforcement officers who, upon discovery, would imprison you without any delay. What would you do? I bet you would hide and keep beneath surface. Moreover, you would very likely think twice before using social media, whereby proudly communicating your wanted poster to the public. No, you would not? Your case then would pretty much equate Christopher Crego’s current situation.

It is somehow surprising that some society’s members do not recognize social media as well as other web 2.0 applications to be “public”.  This appears even weirder as the desire to “communicate with the public” is considered the main drive behind the use of such platforms. In the field of internet, hence, public is where others could look into your content, get notice what you do or otherwise interact with you. Everything leaving your privacy almost automatically enters the public realm.

In this regard social media has the potential of great convenience – communication with others is just a click away. Equally important, however, social media has also proved problematic – think of people that got fired for being on Facebook while actually on sick leave or of recently reported recruiters’ practices.

So, be careful because the social media has you!

23 January 2010

Data retention aims to fight file sharing users rather than terrorists


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Well, some have always suspected what Austria’s Die Presse has recently reported thereby quoting an official.

The gentleman in question is Christian Pilnacek who is the Head of the Criminal Procedure Department within the Austrian Ministry of Justice. When asked by a journalist, he confirmed the information, according to which the data retention provisions’ applicability should not be limited to only so called “serious crimes”. The latter is, by the way, what the Directive 2006/24 requires. It has been said that this idea has originated in the Ministry of Justice and has found support in the Ministry of Interior. Moreover, in the officials’ view retained data should be accessible in the prosecution of minor crimes and/or in dealing with civil wrongs and hence would perfectly fit in the scope of the provisions conveyed by the Enforcement Directive.

Now the show is over. Seemingly, the entertainment business’ lobbyists have done a good job for their clients. See whether the idea shall prove capable of gaining a legislative majority.

18 January 2010

Austria’s data protection council disfavours new bill on data retention


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The Data Protection Council is an advisory body within the Austrian Federal Chancellery’s administration. In a recent session the Council debated on the newly presented bill on data retention and passed an opinion to the government. The authority’s chair publicly presented the opinion’s upshot: the bill conflicts with Articles 8 and 9 of the ECHR, hence the Council moves for a balance between the privacy right of the persons concerned and the public interest to maintain security and order.

The Council further calls for a restrictive definition of a “serious crime” in order to achieve the data retention directive’s goal to fight organised crime and terrorism.

The Council seems to carefully observe the international, in particular the European, development on data retention. This is mirrored in Council’s recommendation to await the inauguration of the new European Commission and the enactment of the Stockholm Programme, which, given a sufficient consideration to certain privacy aspects, may lead to the data retention directive’s annulment.

I personally share that view and strongly hope for the Council to be proved correct.

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.