How Lobbyists' Changes To EU Data Protection Regulation Were Copied Word-For-Word Into Proposed Amendments
from the well,-just-look-at-that dept
Everyone knows that politicians are lobbied, sometimes massively. But it's rare to be able to track directly the detailed effects of that lobbying. That's why a new site called LobbyPlag is so interesting: it allows people to do precisely that in the case of the controversial data protection rules in the EU, which aim to regulate how personal information harvested from users of online services can be used. Naturally, many large Net companies -- mostly in the US -- are unhappy about these moves; some US diplomats are even talking of a possible "trade war" if the proposals go through in their current form. That's unlikely, not least because the lobbying is starting to pay off, as LobbyPlag's analysis makes clear.
The site takes two sets of publicly-available documents -- those prepared by companies or their lobbyists, and the amendments proposed for the Data Protection Regulation -- and compares them, showing the results in a highly visual way. It turns out that entire paragraphs have been copied word-for-word from the lobbyists' documents and put forward as suggested amendments. Similarly, some of the deletions that European politicians have proposed are precisely those asked for by various companies.
One amendment concerns what LobbyPlag terms "forum shopping":
This amendment allows companies to "designate" its main establishment. The previous version of the law would make the member state of the factual "main establishment" responsible. This amendment allows massive "forum shopping" -- companies can choose the member state with the weakest data protection authority or the littlest enforcement (e.g. UK or Ireland) while actually being situated in a totally different member state. Even Peter Fleischer (Google’s Privacy Officer) has recently criticized Microsoft for "forum shopping" in Luxemburg
Here's the original text from the European Commission (pdf), Article 4(13):
'main establishment' means as regards the controller , the place of its establishment in the Union where the main decisions as to the purposes, conditions and means of the processing of personal data are taken; if no decisions as to the purposes, conditions and means of the processing of personal data are taken in the Union, the main establishment is the place where the main processing activities in the context of the activities of an establishment of a controller in the Union take place. As regards the processor, 'main establishment' means the place of its central administration in the Union;
Here's what Amazon (pdf) and eBay (Microsoft Word) wanted:
'main establishment' means the location as designated by the undertaking or group of undertakings, whether controller or processor, on the basis of, but not limited to, the following optional objective criteria: (1) the location of the European headquarters of a group of undertakings; (2) the location of the entity within a group of undertakings with delegated data protection responsibilities; (3) the location of the entity within the group which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; or (4) the location where effective and real management activities are exercised determining the data processing through stable arrangements. The competent authority shall be informed by the undertaking or group of undertakings of the designation of the main establishment;
Here's what several MEPs proposed as an amended version:
'main establishment' means the location as designated by the undertaking or group of undertakings, whether controller or processor, on the basis of, but not limited to, the following optional objective criteria: (1) the location of the European headquarters of a group of undertakings; (2) the location of the entity within a group of undertakings with delegated data protection responsibilities; (3) the location of the entity within the group which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; or (4) the location where effective and real management activities are exercised determining the data processing through stable arrangements. The competent authority shall be informed by the undertaking or group of undertakings of the designation of the main establishment;
As you can see, the last of these is identical with the companies' text. Of course, there's nothing wrong in using lobbyists' suggestions if they are valuable; and there's no reason why companies shouldn't come up with good ideas that could be used. But what's striking about the changes adopted by European politicians, as revealed by LobbyPlag, is that they seem to favor the companies, and to be detrimental to the European public -- not what you would hope for from the latter's representatives in the European Parliament, who should be protecting their interests, not attacking them.
Some have countered these accusations by pointing out that suggestions from civil groups moving things the other way have also been included; that may well be true, although I've not seen any proof that exactly the same wording has been adopted. But even if that were true, that doesn't represent balance of any kind: the money that companies like Amazon or eBay are able to put behind lobbying efforts in the European Union (and around the world) dwarf the very limited resources of cash-strapped citizen rights groups.
Given that lobbying will never disappear, perhaps the best we can hope for is what LobbyPlag provides us for the first time: real transparency. Using the powerful digital tools now available, we can easily compare huge numbers of documents to find similarities. That allows us as citizens to follow the threads that link lobbyists -- of all persuasions -- to the politicians that shape our laws. The hope has to be that by shining a light on those links, and letting politicians know that we are watching what they do and where they get their amendments from, the more blatant dependencies on external groups might be diminished, or at least made more subtle.
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Filed Under: data protection, eu, lobbyists, politics
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Anyone who takes even a basic Political Science class will know that if a big donor gives you enough campaign cash you'll let them write bills and submit it to a congressman's office for that congressman to introduce.
Unfortunately that's how it's worked for many decades, I know because I had a teacher in one such class who used to be a congressional aid during Nixon's impeachment.
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It's important that these things be called out, as the alternative of just saying "that's how it is" and ignoring it is unacceptable. We need to change how it is.
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In the beginning it was 4 big countries and a lot of smaller countries completely running the show. It was almost 100 % nationalistic voting. Later political groupings started to gain a more ideological basis.
What americans forget to look at in EU is unions and the leftwing. If you look through the list on the website nobody from the greens or red/green alliance wants to add anything from businesses.
Red/green alliance is far left and contains some communists and other left socialists. They are very much against increasing EU power since EU above all else is a free trade area, which is against the China-like neo-mercantilism they want!
Greens are giving some service to lobbyists, but it is more specific and not so much single companies as unions and the grassroot human right etc. groups.
A few socialists chip in on the banking laws, but they are severely underrepresented on the site. They are bound by union opinions!
The liberal party is getting quite some economy from businesses and do give a good deal of lipservice, but EPP and ECR are conservatives and they are business-friendly to the poing of being self-destructing lemmings. They represent by far the majority of the illegal copying of lobbyist documents and it is completely as expected! You will also see a lack of the nationalistc group on any of these lists. The nationalistic group is more or less entirely ideologically driven by the will to vote down most of what would weaken the member-states on account of EU. Since that is a minority opinion, you will not see much help from international industry players!
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Right to be Forgotten
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MEPs don't have big congressional-style staffs. Instead, they rely on wording suggestions presented to them, either by affected parties on one side, or NGOs on the other.
If you want to change upcoming EU legislations, you have to form a group, or get in with La Quad du Net or whoever, get together some proposals and start talking to the MEPs.
This is where EU amendments come from. They don't write themselves, or fall ready formed out of the vacuum. You have to get in there and make it happen.
That's what we did, and we eventually killed a software patents directive.
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As for "right to be forgotten", it is almost 100% certain that it will pass in some way. Only question is where the lines are drawn. So far it is taking a slow road towards acceptance, with more than 500 proposed amendments in its current draft-form.
I am unsure about where the line is drawn in the "personal data" definition, where synonyms are mentioned as personal data. The very open definition will give some nasty surprises unless it has already been limited in the courts so character-names on websites and in games are not covered? Things like email is also relevant to define as "address" or not...
"right to be forgotten" is part of a larger update on data-laws in EU that is scheduled to get to the national level around the start of 2014, making it rather far in the process.
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This is newsworthy because it shows people how to do it, this is not a game only for big companies, people can also write their own legislation and they have one advantage, they can also put people to actually make those drafts into law.
Any intelligent person would have realized that politicians can't and don't write all the legislation they propose, they are not experts in all areas and thus not competent enough, they are guided, what people should do is change the channels that are used to convey those drafts, right now the only people plugin is the big donors.
People can change that by simply organizing and agreeing to something, and then voting for the people who would put it in practice.
This is also why is not important to call your representative, they are not listening, they are not on the same page as the rest of the population that they represent, this is why it is not important to complain to your representative.
What is important is to create a public source of laws and drafts that is on the same page and make that the de facto authoritative source for laws, thus replacing all the other little guys that where put in place for that purpose by special interests.
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