EU privacy czar against ACTA

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Richard Forno <rforno () infowarrior org>
> Date: February 22, 2010 10:45:56 AM EST
> To: Undisclosed-recipients: <>;
> Cc: Dave Farber <dave () farber net>
> Subject: EU privacy czar against ACTA

> EU Data Protection Supervisor Warns Against ACTA, Calls 3 Strikes  
> Disproportionate
>
> Monday February 22, 2010
>
> http://www.michaelgeist.ca/content/view/4809/125/
>
> Peter Hustinx, the European Data Protection Supervisor, has issued a  
> 20-page opinion expressing concern about ACTA.  The opinion is a  
> must-read and points to the prospect of other privacy commissioners  
> speaking out.  Moreover, with the French HADOPI three strikes law  
> currently held up by its data protection commissioner, it raises  
> questions about whether that law will pass muster under French  
> privacy rules.
>
> Given the secrecy associated with the process, the opinion addresses  
> possible outcomes based on the information currently available.  The  
> opinion focuses on three key issues: three strikes legislation,  
> cross-border data sharing as part of enforcement initiatives, and  
> transparency.
>
> Three Strikes
>
> On three strikes, the opinion begins by noting the privacy  
> implications:
>
> Such practices are highly invasive in the individuals' private  
> sphere. They entail the generalised monitoring of Internet users’ ac 
> tivities, including perfectly lawful ones. They affect millions of l 
> aw-abiding Internet users, including many children and adolescents.  
> They are carried out by private parties, not by law enforcement auth 
> orities. Moreover, nowadays, Internet plays a central role in almost 
>  all aspects of modern life, thus, the effects of disconnecting Inte 
> rnet access may be enormous, cutting individuals off from work, cult 
> ure, eGoverment applications, etc.
>
> The opinion then assesses three strikes within the context of  
> European data protection law, concluding that it is a  
> disproportionate measure:
>
> Although the EDPS acknowledges the importance of enforcing  
> intellectual property rights, he takes the view that a three strikes  
> Internet disconnection policy as currently known - involving certain  
> elements of general application - constitutes a disproportionate  
> measure and can therefore not be considered as a necessary measure.  
> The EDPS is furthermore convinced that alternative, less intrusive  
> solutions exist or that the envisaged policies can be performed in a  
> less intrusive manner or with a more limited scope. Also on a more  
> detailed legal level the three strikes approach poses problems.
>
> Among the specific problems, Hustinx concludes that the benefits  
> simply don't outweigh the costs:
>
> The EDPS is not convinced that the benefits of the measures outweigh  
> the impact on the fundamental rights of individuals. The protection  
> of copyright is an interest of right holders and of society.  
> However, the limitations on the fundamental rights do not seem  
> justified, if one balances the gravity of the interference, i.e. the  
> scale of the privacy intrusion as highlighted by the above elements,  
> with the expected benefits, deterring the infringement of  
> intellectual property rights involving - for a great part - small  
> scale intellectual property infringements.
>
> Data Sharing
>
> The opinion also considers the privacy implications of data sharing  
> arrangements facilitated by ACTA for enforcement purposes:
>
> It can be questioned first whether data transfers to third countries  
> in the context of ACTA are legitimate. The relevance of adopting  
> measures at international level in that field can be questioned as  
> long as there is no agreement within the EU member states over the  
> harmonisation of enforcement measures in the digital environment and  
> the types of criminal sanctions to be applied. In view of the above,  
> it appears that the principles of necessity and proportionality of  
> the data transfers under ACTA would be more easily met if the  
> agreement was expressly limited to fighting the most serious IPR  
> infringement offences, instead of allowing for bulk data transfers   
> relating to any suspicions of IPR infringements. This will require  
> defining precisely the scope of what constitutes the 'most serious  
> IPR infringement offences' for which data transfers may occur.
>
> The opinion follows this with detailed recommendations on how ACTA  
> can facilitate sharing of information and ensure appropriate privacy  
> safeguards.
>
> Transparency
>
> Hustinx is direct and to the point on the issue of transparency:
>
> The EDPS strongly encourages the European Commission to establish a  
> public and transparent dialogue on ACTA, possibly by means of a  
> public consultation, which would also help ensuring that the  
> measures to be adopted are compliant with EU privacy and data  
> protection law requirements.



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