ACTA 'May Interfere With Fundamental Freedoms' -- EU Data Protection Supervisor

from the reading-between-the-lines dept

Wed, Apr 25th 2012 4:45am — Glyn Moody

The dramatic announcement that the EU's rapporteur on ACTA, David Martin, would be recommending that the European Parliament should reject the treaty was made at the end of a morning conference on the subject organized by Socialists and Democrats in the European Parliament. One of those speaking in favor of ACTA at that meeting was Helienne Lindvall, a professional songwriter and musician, who has now blogged about it:

I was told to prepare a five-minute speech, so apart from speaking of the reality musicians are facing, I spent days reading the actual agreement, different points of views on it, as well as looking into the different issues it deals with, to make sure I knew what was being discussed. I'd heard from the Pirate party as well as some other action groups that it would impede freedom of speech so naturally I was concerned -- after all, musicians rely on freedom of expression, as do journalists. I was surprised to find that Acta would do nothing of the sort.

That's curious, since Amnesty International does indeed see ACTA as a threat to freedom of speech -- and much else: Amnesty International believes the pact's content, process, and institutional structure impact in a number of ways on human rights -- especially the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.
Part of the problem is that ACTA was intentionally drawn up to be as vague as possible. That can be seen in the fact that its negotiators chose to use terms that have no meaning in the context of international treaties: Amnesty International is also gravely concerned about the ACTA’s vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as "fundamental principles" and even invents a concept of "fair process", which currently has no definition in international law.

"Worryingly, ACTA’s text does not even contain references to safeguards like 'fundamental rights', 'fair use' or 'due process', which are universally understood and clearly defined in international law," said Widney Brown.
The EU's own European Data Protection Supervisor (EDPS), which is "an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies", has just released a second opinion on ACTA (pdf) (the first dates back to 2010, and was equally critical). It concurs with Amnesty International's view of the treaty's worrying vagueness in the area of human rights: At international level, freedom of expression and privacy are recognised as fundamental rights in the Universal Declaration of Human Rights, and not as mere 'principles'. Furthermore, the notion of 'fair process' does not correspond to any generally recognised human right.
The latest EDPS report is mainly concerned with ACTA's problems from the point of view of privacy, where it concludes: Many of the measures envisaged in the Agreement in the context of enforcement of IP rights in the digital environment would involve the monitoring of users' behaviour and of their electronic communications on the Internet. These measures are highly intrusive to the private sphere of individuals and, if not implemented properly, may therefore interfere with their rights and freedoms to, inter alia, privacy, data protection and the confidentiality of their communications.
But the report does touch on the issue of freedom of speech when it analyzes the effects of ACTA's "Enforcement cooperation mechanisms and the monitoring of Internet by ISPs": These forms of enforcement cooperation mechanisms which entail the processing by ISPs of personal data for the purpose of IP rights enforcement and/or the monitoring of individuals' behaviour, including electronic communications, on a large scale raise serious concerns from a privacy and data protection perspective. They furthermore may lead to the disconnection of Internet access or the blocking of websites, which may interfere with fundamental freedoms such as the freedom of expression, the freedom to receive or impart information and access to culture.
ACTA threatens free speech largely because of the following, apparently innocuous, sentence: Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
As the EDPS points out, "a mere reference to these principles [freedom of expression, fair process, and privacy] is not enough." What counts is what would happen in practice. And the practice -- and the problem -- is that ACTA would encourage signatories to move to "co-operative" approaches already being deployed by some countries, with a presumption of guilt rather than innocence: These include various forms of voluntary enforcement cooperation mechanisms, such as three strikes mechanisms, blocking and filtering of peer to peer traffic, or the blocking of websites allegedly infringing copyrights.
Clearly, all of those mechanisms mentioned by the EDPS "would impede freedom of speech" hugely, just as the Pirate party and others have suggested. The threat of ACTA is not just the laws that it will bring in, but the extra-judicial actions that it will encourage beyond the law.

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Filed Under: acta, amnesty international, david martin, eu rapporteur, european union

37 Comments

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Anonymous Coward, 25 Apr 2012 @ 5:18am

the vagueness in ACTA, TPP and other proposed Bills and Laws is done intentionally. that intentionality is simply because the US wants certain of it's industries to be able to take away basic human rights as recognised in the EU (and elsewhere), including freedom of speech, the right of innocence until proven guilty, the right to cheap (if not free) effective medical treatment and the right of a fair trial, just to protect their own particular merchandise. these and similar proposals are a complete piss take, showing nothing but contempt for citizens everywhere and the US should be thoroughly ashamed of what it is trying to do!
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Anonymous Coward, 25 Apr 2012 @ 5:21am

Ahh Glyn, you were doing really good... but then I went back and took your conclusion phrase "would impede freedom of speech" and went back to look for the source earlier in your document:

"I'd heard from the Pirate party as well as some other action groups that it would impede freedom of speech"

I would say that building your entire conclusion on something that someone heard from someone in a party that would be grandly opposed to ACTA because it's against their founding beliefs isn't exactly an impartial source here.

"These include various forms of voluntary enforcement cooperation mechanisms, such as three strikes mechanisms, blocking and filtering of peer to peer traffic, or the blocking of websites allegedly infringing copyrights."

The suggestion is that any type of enforcement activity is somehow based on presumed guilt rather than innocent. We have already shown that not to be true in the case of HADOPI, where all three strike cases are sent for judicial review. We have also already shown that blocking websites in order to conform to local law is current practice in many places, including the EU (yes, I am looking at your Germany!).

Any other strawmen you want to toss out there?
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Anonymous Coward, 25 Apr 2012 @ 5:27am

Re:
ACTA 'May Interfere With Fundamental Freedoms' -- EU Data Protection Supervisor

Shilltroll spots Pirate Party saying this, claims victory.

Shilltroll doesn't RTFA, misses the entire last 3/4 of the article, which deals with the words of the EU Data Protection Supervisor, including the headline quote.

Shilltroll continues to be vastly overpaid for shitty, shitty, shitty service to his employers.
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abc gum, 25 Apr 2012 @ 5:41am

Re:
"Any other strawmen you want to toss out there?"

How is it a strawman?
Possibly, the term strawman does not mean what you think it means.
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The eejit (profile), 25 Apr 2012 @ 6:09am

Re:
Well, I'm pretty sure damanding personal information so that you can blackmail people isn't freedom of speech: that's called racketeering.
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Capt ICE Enforcer, 25 Apr 2012 @ 6:14am

US Congress
So my question is, If the US President signed this treaty without Congress approval, and he is not authorized to sign this treaty. Why has the US Congress kept their mouths shut instead of doing something like the other countries are?

Pathetic...
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Yogi, 25 Apr 2012 @ 6:19am

about vague terms
The use of vague terms in legislation is a common practice in modern dictatorships. This serves the purpose of preserving a humane image while also allowing the regime to implement draconian interpretations of the law at any moment.
Many people are gullible enough to then believe that the regime had nothing to do with the legislation and its effects.
Just ask any human rights activist who lives in a totalitarian regime.

I can't say that I am surprised that the practices of the MPAA/RIAA resemble those of any common dictator. Shame on Obama for being in bed with them - that's unforgivable!!
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Anonymous Coward, 25 Apr 2012 @ 6:21am

Every Country is Turning Into America
I am very sorry about this.
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Anonymous Coward, 25 Apr 2012 @ 6:23am

Re: US Congress
Congress doesn't even write legislation anymore. It's written by lobbyists. Expecting things from Congress is like expecting your pet to fly.
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Lowestofthekeys (profile), 25 Apr 2012 @ 6:24am

Re: US Congress
I blame money. It seems to be the fundamental thing that can change a person's perspective on a whim.
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gorehound (profile), 25 Apr 2012 @ 6:27am

Re:
+1

I will make sure that what money I have to spend goes to NON-MAFIAA Stuff for the rest of my life.
I did it to the RIAA/Big Labels and did this back in my 70's Original punk days.Stopped supporting the Majors by end of 70's.
I am doing it now to all forms of MAFIAA.
Buy INDIE Only !
And yes I hate my Government.A Plutocracy is what it sounds like not a Democracy.My present form of Government is making us good US Citizens look bad.
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Richard (profile), 25 Apr 2012 @ 6:27am

Re: Re: US Congress
What if my pet is a parrot?
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Anonymous Coward, 25 Apr 2012 @ 6:30am

Re: Re: Re: US Congress
I knew someone would say that.
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Anonymous Coward, 25 Apr 2012 @ 6:54am

Vague and broad terms spell doom for ACTA in the eyes of those who stand in opposition.

Thank goodness they, its opponents, were not around when the US Constitution was drafted and enacted (in a backroom, secret deal no less).
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Anonymous Coward, 25 Apr 2012 @ 7:26am

Re: Re:
Strawman: Falsely representing the other side's position and goals, and then shooting them down with your argument. A dummy target, often as part of a tactic to put scary information out there and show how you must defeat the unrealistic and dishonest representation of the other side's position.
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Anonymous Coward, 25 Apr 2012 @ 7:28am

Re: Re:
Dumbass happened to miss that the EU Data Protection Supervisor started down this road as a result of the Pirate Party's statements.

You will also notice that his statements are incredibly vague, with plenty of "mights" and "could" and "possibly" type things in there.

Perhaps rather than calling me names, you might actually want to read the whole article and put it together as a full piece, rather than ignoring half of it because you don't like it.
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Overcast (profile), 25 Apr 2012 @ 7:40am

Really, wow.. what a revelation..

Does it always take politicians two years or more to figure out obvious things like this?
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The eejit (profile), 25 Apr 2012 @ 7:43am

Re:
To High Treason! Without which, we wouldn't be in this mess.
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Lowestofthekeys (profile), 25 Apr 2012 @ 7:53am

Re: Re: Re:
So are you erring on the side of optimistic, naive caution and assuming that none of the "mights", "coulds" and "possiblies" could come to pass for a treaty that hasn't been enacted yet.
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Anonymous Coward, 25 Apr 2012 @ 7:54am

Re: Re: Re:
So you tell him not to call you names and read the article, right after opening by calling him a name?

Very mature. I'm glad you took the high road. In fact, you started off by doing so. /s

Don't you see, if there's a problem with the article or piece or you interpret things differently, feel free to say so and then back it up with assertions. But going "oh Glynn you poor fool" or "Oh Mike how you missed the point" and so on and so forth (as is your usual M.O.) DOES NOT make anyone NOT want to insult your or be rude to you. It makes them want to do the opposite, which is do exactly that, insult you and be rude to you.

You come off as quite condescending without actually backing up why you're being condescending. Point out how they're wrong, quote people, present citations, cite sources. Do all that and maybe we'll not call you a troll (because that is what you are, you come to this site, daily, insult the writers, belittle the people commenting, etc AND ONLY when you have had enough do you present any kind of argument, and usually then only grudgingly so and still with the attitude).

Example, see what I'm replying to. You start by insulting the author of this article on TD. You then refer to mights, coulds, and possiblys without actually citing any of them. All while laying this to blame at the feet of the Pirate Party. Be specific. Stop acting like a douche. And we'll all be better off for it. And perhaps stop treating and talking to you like the condescending jerk you are.
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Anonymous Coward, 25 Apr 2012 @ 7:56am

Re:
Two years is impressive.... most of them never get it....
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Dark Helmet (profile), 25 Apr 2012 @ 8:02am

Re:
"Thank goodness they, its opponents, were not around when the US Constitution was drafted and enacted (in a backroom, secret deal no less)."

Really?!? You actually dropped a comparison between ACTA and the United States Constitution? Are you completely insane? Forgetting the import of each document, do you not see the irony of comparing a "backroom, secret deal" made by revolutionaries fearful of an authoritarian regime, and a "backroom, secret deal" made by a conglomerate of semi-authoritarian regimes? WTF?!?!!??
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TtfnJohn (profile), 25 Apr 2012 @ 8:29am

Re:
The last time I read the US Constitution it was chock full of terms in wide spread legal use of the time and of now. These words and phrases did and do have well defined legal meanings.

On the other hand ACTA is written in "coulda, shoulda, woulda" language which could mean anything and even where there's long standing legal precedence it's phrased so that it can mean anything. As ACTA provides for real time monitoring of ISP user's communications based on unproven allegations of infringement just how that doesn't chill speech, the legitimate expectation of privacy of communication (such as it can be said to exist on the Internet) and freedom of action (such as sharing files I have every right to share legally ) is beyond me.
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Edward Teach, 25 Apr 2012 @ 8:40am

Re: Re: Re: US Congress
Beautiful plumage on the Norwegian Blue.
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John Fenderson (profile), 25 Apr 2012 @ 9:00am

Re: Re: Re:
Good, so you know the definition. Now, please explain what was the strawman.
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Anonymous Coward, 25 Apr 2012 @ 9:23am

#22,

The Articles of Confederation and the US Constitution were prepared after the cessation of hostilities with England and at a time when the United States was recognized by other countries as a sovereign nation.

#23,

"Well established meanings"? Surely you jest. "general welfare", "commerce among the several states", "necessary and proper", "high crimes and misdemeanors", "good behavior", etc., etc. ad nauseum.

Even now the Supreme Court has before it a case involving the meaning of "commerce among the several states"; namely, the Affordable Care Act.

While arising a bit later, the Bill of Rights, Amendments 1 through 10, it is chock full of terms that at the time of its enactment had no established meaning for a myriad of terms, which for reasons unknown you seem inclined to believe.

For over 200 years we have had the Supreme Court struggle with trying to divine was the many undefined terms were intended to cover.

Sorry, but your understanding of constitutional law is a bit weak on the facts.
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Anonymous Coward, 25 Apr 2012 @ 9:24am

Re: Re: Re: Re:
"Very mature. I'm glad you took the high road. In fact, you started off by doing so."

Stuff the sarcasm. He stated it, I just pointed out how silly it was for him to do it. Shallow and igorant.

"You come off as quite condescending without actually backing up why you're being condescending."

Learned from reading Mike and getting into his writing style.

"You start by insulting the author of this article on TD. "

I did no such thing. In fact, I specifically said: "ou were doing really good... but then I went back and took your conclusion phrase "would impede freedom of speech" and went back to look for the source earlier in your document:" and went on to show that it wasn't an impartial source.

Where do you get the insult?

Perhaps you might want to realize that you are reading my comments in a certain way, and reading things into them that are just not there. I think that Glyn made an error on this post by basing his conclusion of comments made by a clearly biased political party. Am I wrong to have that opinion?

"perhaps stop treating and talking to you like the condescending jerk you are."

I would say that the advice is best served for yourself in this case.
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Chosen Reject (profile), 25 Apr 2012 @ 10:35am

Re: US Congress
That's easy. The Democrats won't do it because they have one of theirs in Office. The Republicans won't do it because they hope of one of theirs is in Office next and they want that power too.
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Chosen Reject (profile), 25 Apr 2012 @ 10:42am

Re:
For over 200 years we have had the Supreme Court struggle with trying to divine was the many undefined terms were intended to cover.
No, we've had the Supreme Court trying to figure out how they can weasel their own interpretation (for good or for bad) into the words that were in the Bill of Rights and Constitution. When you also have the writings of the founding fathers to look at, it all becomes incredibly clear. When you have your own personal agenda (for good or for bad) that doesn't jive with those documents, and you realize it's easier to confound the language than to get an amendment passed, you just confound the language.
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That One Guy (profile), 25 Apr 2012 @ 12:41pm

Re: Re: Re: US Congress
I assume you got one that doesn't 'pine for the fjords', as that breed seems to be rather flight-challenged.
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abc gum, 25 Apr 2012 @ 5:39pm

Re: Re: Re:
Non-answer noted.
I'm sure you have helped many people that definition which was unavailable to them otherwise.
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Anonymous Coward, 25 Apr 2012 @ 7:17pm

Re: Re: Re:
>Dumbass happened to miss that the EU Data Protection Supervisor started down this road as a result of the Pirate Party's statements.

So someone took them seriously... you mad?
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Anonymous Coward, 25 Apr 2012 @ 10:31pm

Re: Re: Re: Re:
Mad? Why would I be? Some people also though that the show "The Hills" was real too. There are ignorant, easily lead people all over the place (including this place!).
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Anonymous Coward, 25 Apr 2012 @ 10:34pm

Re: Re: Re: Re:
The major strawman is the idea of HADOPI as "guilty until proven innocent". That's been entirely dispelled by the simple fact that the third strike cases aren't leading to immediate disconnection, but rather that those cases are being referred to the judicial branch for review (as "reported" here on Techdirt).

So the argument is a strawman, because reality says it doesn't exist.
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Anonymous Coward, 25 Apr 2012 @ 10:39pm

Re: Re: Re: Re: Re:
So you're saying that the EU Data Protection Supervisor is ignorant and easily led. Marvellous, why don't you tell him that.
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Anonymous Coward, 26 Apr 2012 @ 5:48am

Re: Re: Re: Re: Re:
You getting a strike is considering you guilty. Unless you're telling us that you get to fight the strike?
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abc gum, 26 Apr 2012 @ 6:16am

Re: Re: Re: Re: Re:
The fact that 3-strikers are presently allowed their day in court prior to disconnection does not imply this practice will continue, nor does it imply the practice is required by law - because it is not.

None of this matters because they are considered guilty at the first strike, there is no due process at that time is there.
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