1 April 2011

Austria’s Data Protection Council On Data Retention – A Déjà Vu


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Who remembers the cat scene in The Matrix?
The scene depicted Neo, Morpheus & the other good guys convinced that they had already witnessed or experienced a certain situation. What do we usually call this experience or state of mind?
Déjà vu, right?
Unlike the most cases of a déjà vu where no determination can be made as to whether the circumstances of the previous encounter were imagined or true, in that particular scene from The Matrix the cat indeed passed the door twice.
The good guys instinctively felt that something was wrong. And their feelings did not betray them: something was wrong indeed!

Data retention is The Matrix in real life

In a previous blog post I did already compared the laws on data retention with the bad guys’ attempt to maintain total control in The Matrix.
When I recently read that the Austrian data protection council had again disfavoured the then current bill on data retention in a critical statement, it felt like a déjà vu to me.

What does the council criticise?

1. The council has some very serious doubts as to data retention bill’s compatibility with Art 8 of both, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

2. While the council acknowledges that law enforcement authorities should be equipped by sufficient powers in order to fight organized crime and that access to communication data might be helpful in such context, it opines that such powers must be applied only to concrete occasions and be subject to specific controls.

Data stormphoto © 2006 Dave Herholz | more info (via: Wylio)

3. The council further urges the European Commission to eventually conduct the evaluation owing to Article 14 of the Directive 2006/24/EC.

4. In the event that Commission’s evaluation results in a review of the data retention Directive which recommends the implementation of lesser onerous measures, the council suggests that the legislature opt for the so-called quick-freeze procedure. The latter recently gained a measure of popularity because of its submission to public debate in Germany.

5. Last but not least and given the “informative value” of retained data, the council calls upon the legislature to maintain the highest possible data security standards when transposing the Directive.

Will this statement halt the transposition of data retention in Austria?

Unfortunately, it will not, because the data protection council has advisory and, hence limited, powers.
Its statement is nevertheless significant – it once again makes it very clear that data retention is at odds with fundamental human rights, and that the politicians are very well aware of this fact.

What can a single individual do?

First of all inform yourself and inform others who are not yet familiar with data retention. And since data retention is considered avoidable – learn how to either avoid it or make it appear obsolete.

Thoughts?

Did I miss an important point? What else would you suggest?

 

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25 March 2011

Europe’s Last Stand Against Data Retention?


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The Matrix has you...photo © 2008 Roman Pinzon-Soto | more info (via: Wylio)

Do you remember Morpheus saying “Wake up Neo… The Matrix has you!”?
Do you remember Agent Smith implanting an electronic tracking bug in Neo’s body?
I bet you do, because the image transported by this film does not appear that fictional anymore.
It may be just an arm’s length away.
Yes, I am talking about the retention of your communication traffic data. By “you” I mean all of you who live under the jurisdiction of a member state of the European Union. Any member state? Hmm, well, possibly not, but let me first explain

What is data retention and its purpose?

Data retention in the sense of the Directive 2006/24/EC provides for the storage data arising out of telephone calls made and received, emails sent and received and websites visited. Since location data counts to traffic data, it is collected too.

The introduction of data retention has always been justified with combating terrorism and serious crimes, but it aims to fight file-sharing users instead.

Owing to its controversy, legislation produced by transposition of the data retention Directive has been contested in some EU member states. While Ireland challenged Directive’s compatibility with formalities under the then current EC Treaty,  the constitutional courts of Romania and Germany were asked to deal with data retention’s compatibility with fundamental human rights. As a consequence, the respective provisions got abrogated, but not annulled.

Data retention gains territory

Until recently, Austria managed to postpone the transposition of the Directive 2006/24/EC into its national law. Well, the ostensible resistance grounded on discrepancies between the two coalition forming parties rather than on human rights deliberations.

Doris Bures, Austria’s Minister of Transport, Innovation and Technology announces the upcoming enactment of data retention. Courtesy to APA (Archiv/Fohringer)

However, some weeks ago the farce went to an end and a bill amendment to the telecommunications act was nodded through the council of ministers prior to its submittal to the parliament. Reportedly, the bill is being heavily discussed among the members of the parliament justice committee. The result will be, despite all assurances, the total control of communication.

Now that Austria will no longer be a safe harbour in terms of privacy, are there any other member states that still have not implemented the data retention directive?
Let us have a look at the map of Europe…
Is someone missing?
Yes, there is!

The land of milk and honey

Flag countrysidephoto © 2009 Håkan Dahlström | more info (via: Wylio)

 

Can you imagine: the Swedes usually known for their discipline and law-abiding behaviour are now obstructing the implementation of Directive 2006/26/EC.
It seems that an arrangement among the Left Party, the Green Party and the Swedish Democrats managed to apply a procedural loophole in order to delay the transposition for at least a year.

What does it mean?

As I previously mentioned, the data retention directive has been referred to a judicial review a few times already. These reviews’ action items towards legislation always read the same: improve!
In this respect, it is likely that the Court of Justice of the European Union delivers a judgment dealing with data retention’s compatibility with fundamental human rights under the acquis.

The good news at the end

I still have hope that this madness will come to an end. Not only because hope springs eternal, but because anyone can make an effort and engage in lawfully fighting data retention.
At least anyone who cares about fundamental human rights.

And if Sweden should fail, then it could be us as individuals who form Europe’s last stand against data retention!

 

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9 September 2010

The Austrian gambling monopoly has survived. So far.


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Spinphoto © 2009 Conor Ogle | more info (via: Wylio)

Somewhere in the beginning of this year I wrote a blog post asking “is the Austrian gambling monopoly coming to an end?“. The reason behind was the pending case of Engelmann before the European Court of Justice (ECJ). In this lawsuit the Court was asked to address three questions, the most important of which was the one above. Today this very Court delivered an answer that seems to read “no, it is not”.

Not unusual, the ECJ has omitted to press the hot button that this gambling monopoly issue represents. Court’s reluctance appears even more blatant when reading the related statement “In view of the answers given to the first and third questions and of the fact that the national court, as pointed out in paragraph 26 of the present judgment, has established a link between the facts satisfying the definition of the offence with which Mr Engelmann has been charged and the question whether he was lawfully excluded from the possibility of obtaining a concession, it is not necessary to answer the second question.” I may remind my readers that the second question was the one particularly challenging the Austrian state monopoly over games of chance.

In this respect my forecast regarding the survival of the monopoly has proven correct. On the other hand I feel somewhat confused about our supreme judicial authority’s denial to address an issue referred to it. Do we need a judicature deliberately missing its chance to provide for legal certainty and stability? I personally do not!

 

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23 February 2010

Is the Austrian gambling monopoly coming to an end?


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photo © 2010 Bonnie Craven Francis | more info (via: Wylio)

The subject matter of this post is not necessarily related to Information Technology or Intellectual Property. Arguably, it could be deemed to be somewhere in the orbit of regulatory matters, but…”wait a moment” – might some of you ask – “what is the name of this guy’s blog again?”, and that is true – it reads “From Vegas To Legal”! So, in recognition of my blog’s name, I consider the time ripe to risk a dive into gambling’s deep waters.

In the instant case of criminal proceedings against Ernst Engelmann that was filed with the Regional Criminal Court in Linz, Austria, said court referred three questions to the European Court of Justice (ECJ) and asked the latter for a preliminary ruling. In particular, the court in Linz wanted to know whether

– Article 43 EC derogates a national provision mandating that only corporations established in a member state may there operate games of chance in casinos, thereby necessitating the establishment or acquisition of a corporation in that member state?

– Articles 43 and 49 EC derogate a national monopoly on games of chance in casinos, if the member state  in question maintains an inconsistent policy to limit gaming, inasmuch as national licensed organisers encourage participation in gaming – such as public sports betting and lotteries – and advertise such gaming, for instance, on TV?

– Articles 43 and 49 EC derogate a national provision under which a member state may exclude Community competitors (that do not belong to that member state) from a tender where a license to organise games of chance in casinos are granted.

In his today delivered opinion on the above questions, Advocate General Jan Mazak starts with a very good introduction into the federal gambling law of Austria, followed by a dissection of the same. From my perspective it is a must-read for all those interested in the matter.

Having come to the first question referred to the ECJ, the Advocate General opines that the Austrian legislation is incompatible with the freedom of establishment to the extent it reserves the operation of games of chance in casinos exclusively to corporations which have their seat in Austria. Companies registered in other member states of the European Union thus suffer a direct discrimination as they are excluded from the license grant to operate a casino in Austria. Such discrimination would be justifiable only if it grounded on deliberations with respect to public policy, public security or public health and a genuine and sufficiently serious threat affecting a fundamental interest of society existed. In Mr Mazak’s view the latter condition was not satisfied since Austrian authorities would not face a “genuine and sufficiently serious threat affecting a fundamental interest of society”, if the had to administer and supervise gaming operators which reside in other member states. Unfortunately, the Advocate General remained silent as to whether the operation of games of chance in casino should be reserved solely to corporations.

With regard to the second question, the Advocate General states that encouraging of participants in games of chance and advertising undertaken by operators does not necessarily mean that the national policy of limiting games of chance lacks consistency. Moreover, the Advocate General is of the opinion that it is the referring court to determine whether the said advertising is consistent with the objectives of the member state, since, among the various objectives which it pursues, the Austrian legislation seeks to combat fraud and criminality in the games of chance sector, by orienting demand for gaming towards an offer controlled and supervised by the State. Such determination, however, should be limited only to a sector where there is a gaming monopoly which would develop disproportionate and inconsistent advertising.

As to the third question, the Advocate General finds that the exclusion of non-residential Community competitors contradicts the freedom to provide services. Furthermore, and – in the absence of a genuine and sufficiently serious threat affecting a fundamental interest of society – the instant case’s restriction is discriminatory and unjustifiable on the grounds of public policy, public security or public health.

Put it all together, this Advocate General’s opinion has the potential to cause a ruling that would strengthen the principles framing the European Union. By the same token, it could deprive member state of the few sinecures they still possess in the realm of, say, gambling.

As regards the Austrian gambling monopoly, I personally believe that it will survive a ruling (almost) untouched.

 

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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.

25 November 2009

Austrian National Railways must not restrain an ISP to use their infrastructure


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Silver Server, an Austrian ISP, approached the National Railways of Austria (ÖBB) and requested access to their infrastructure, particularly their communications lines. Silver Server grounded their request on the joint-use right as outlined in Articles 8 and 9 of the Austrian Telecommunications Act 2003. Upon ÖBB’s refusal Silver Server referred the case to the Telecom-Control Commission (TKK) which regulates the Austrian telecommunications market.

In its recently issued decision, the TKK held ÖBB liable to grant Silver Server access pursuant to their request. In accordance with Austrian administrative law, TKK’s decision serves as a so called “contract substituting ruling”. For this reason the TKK has employed great detail in drafting and has for a first time in a matter of joint-use provided for precise conditions (e.g. definite rental price) and a share of responsibilities (e.g. performance guarantee, maintenance obligations) between the parties.

The decision is noteworthy because it extends the scope of the Telecommunications Act beyond the sector of electronic communication and affirms its applicability also to somewhat unusual market players such as the national railway company.

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.

17 August 2009

Austrian Supreme Court holds that ISP is not obliged to provide copyright enforcer with file-sharing user’s data.


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Austria’s Die Presse reports about a recent decision of the Austrian Supreme Court (4 Ob 41/09x), according to which the

File-Sharing User’s Right of Privacy Has a Higher Priority

than a copyright enforcer’s right of information.

The Supreme Court had to deal with a case where a collecting society requested an ISP to disclose the personal data of a file-sharing user, whose IP address the collecting society had already obtained.

By so deciding

The Supreme Court Overruled the Lower Instances

which found the defendant ISP liable to provide the claimant collecting society with the requested information.

The decision is considered to have a certain signalling effect.