ACTA Update XV

Since my last ACTA update, plenty has been happening – there's really never a dull moment in this area.

First, we had a surprise "Opinion of the European Data Protection Supervisor". Just in case (like me) you'd forgotten about this chap, this is what he does:

The EDPS is an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies.

That seems to give him and his assistant a remit to poke around anything happening in the European Union. He has now done this with ACTA, and not for the first time. Back in 2010, he published an opinion that left no doubt about his feelings [.pdf]:

While intellectual property is important to society and must be protected, it should not be placed above individuals' fundamental rights to privacy, data protection, and other rights such as presumption of innocence, effective judicial protection and freedom of expression.

He then went on to criticise a particular measure that was present in the draft version of ACTA at that time:

Insofar as the current draft of ACTA includes or at least indirectly pushes for three strikes Internet disconnection policies, ACTA would profoundly restrict the fundamental
rights and freedoms of European citizens, most notably the protection of personal data and privacy.

Although that "three-strikes" option is no longer present in ACTA, it's an important reminder that originally it was, even though the European Commission has had the cheek to deny this [.pdf]:

many rumours have circulated on « three strikes » measures and other measures restricting the access to internet. It is important to clarify that no such rules were ever proposed by any of the parties involved in the ACTA negotiations

Given the European Data Protection Supervisor's explicit statement to the contrary, this shows just how low the European Commission is prepared to stoop in order to push ACTA through.

The EDPS concluded in 2010:

The EDPS further wishes to be consulted on the measures to be implemented in respect of the data transfers that will take place under ACTA in order to verify their proportionality, and that they guarantee an adequate level of data protection. The EDPS further wishes to be consulted on the measures to be implemented in respect of the data transfers that will take place under ACTA in order to verify their proportionality, and that they guarantee an adequate level of data protection.

That doesn't seem to have happened in the slightest, since ACTA was negotiated behind closed doors. So even without the three-strikes measure, it should come as no surprise that the European Data Protection Supervisor is still not happy with ACTA [.pdf]:

Today, the European Data Protection Supervisor (EDPS) adopted his Opinion on the proposal for a Council Decision on the conclusion of the Anti-Counterfeiting Trade Agreement (ACTA). The Opinion shows that the lack of precision of the Agreement about the measures to be deployed to tackle infringements of intellectual property rights (‘IP rights') on the Internet may have unacceptable side effects on fundamental rights of individuals, if they are not implemented properly. It underlines that many of the measures to strengthen IP enforcement online could involve the large scale monitoring of users' behaviour and of their electronic communications. These measures are highly intrusive to the private sphere of individuals, and should only be implemented if they are necessary and proportionate to the aim of enforcing IP rights.

More specifically:

the EDPS stresses in particular that:

measures that allow the indiscriminate or widespread monitoring of Internet users' behaviour, and/or electronic communications, in relation to trivial, small-scale, not for profit infringement would be disproportionate and in breach of Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and the Data Protection Directive;

many of the voluntary enforcement cooperation measures would entail a processing of personal data by ISPs which goes beyond what is allowed under EU law;

ACTA does not contain sufficient limitations and safeguards, such as effective judicial protection, due process, the principle of the presumption of innocence, and the right to privacy and data protection.

As more and more experts like the EDPS have expressed their concerns about ACTA, and pointed out its manifest flaws, the European Union's MEPs are beginning to react.

First we had the Socialists and Democrats group in the European Parliament coming out against it:

Following a Group meeting in which an overwhelming majority of Socialists and Democrats expressed their intention to reject the Anti-Counterfeiting Trade Agreement (ACTA), the president of the S&D Group in the European Parliament, Hannes Swoboda, announced that they will propose alternatives to ACTA.

Mr Swoboda said: "Counterfeiting is a real problem in Europe and we need to address it. ACTA points at the right problems but gives the wrong answers. It would not be effective and it would endanger fundamental rights.

Next, the Liberals joined in:

The Alliance of Liberals and Democrats in the European Parliament announced today that it cannot support ACTA (the Anti-Counterfeiting Trade Agreement).

Guy Verhofstadt, ALDE group leader said that "Although we unambiguously support the protection of intellectual property rights, we also champion fundamental rights and freedoms. We have serious concerns that ACTA does not strike the right balance."

Only the remaining political group, the centre-right EPP, clings to the hope that ACTA can be salvaged:

Europe needs an international agreement to step up the fight against counterfeit products. Counterfeit goods are causing billions of Euros of damages every year to European companies, thus also putting at risk European jobs. In addition, counterfeit products often do not fulfil European safety requirements, thus posing significant health hazards to consumers.

Many of the provisions included in ACTA provide a useful basis to step up the fight against counterfeit products and ensure an adequate protection of consumers and companies alike. This is undisputed.

Well, actually, it is not undisputed. As I've explained at length, ACTA will do practically nothing to fight against counterfeit products in the EU, or to protect consumers and companies, for the simple reason that China is not a signatory.

On the other hand, our intensive discussions with citizens and legal experts have shown that we need more legal clarity regarding certain provisions in the agreement in respect of its online chapters

It must be ensured not only that ACTA fully respects the EU legal order, especially the Fundamental Rights Charter and the data protection acquis. It is as important that ACTA is not open to any interpretation that would infringe EU law.

We therefore call on the European Commission and member states to ensure legal clarity regarding the following provisions of ACTA, before the EPP Group can support the agreement:

1. Avoid internet service providers to automatically police the web

Many members of the Internet community fear member states might force internet service providers into large-scale supervision of all online activities. The EPP Group does not want Internet Service Providers to police the web in an inappropriate way and considers this as contrary to EU data protection law. We therefore ask the Commission and the Council to ensure legal clarity on the role of ISPs under ACTA.

2. Define large-scale IPR infringement

ACTA only targets large-scale infringement of intellectual property rights, allowing for signatory states to exempt non-commercial use from its criminal enforcement procedures. However, it is unclear where to draw the line. The EPP Group does not want to criminalize individual users. We therefore ask the Commission and member states to define the notion of infringement of intellectual property rights on a commercial scale and to add legal clarity as to when Member states could impose criminal enforcement measures on internet users.

Those are all good points, and the EPP is to be applauded for singling them out. However, its solution to these problems is positively bonkers:

In the interest of European consumers, businesses, as well as Internet users, we need to put an end to the hysteria surrounding ACTA and make real progress on the key challenges ahead: stop dangerous counterfeit products from entering our market, safeguard intellectual property on which our economy thrives, and continuing to preserve the freedom on the Internet. Just voting against ACTA would solve possible problems of ACTA but it would not solve those problems why ACTA was invented, such as the need to fight against large-scale infringements of IPR, trademarks etc. The answer is not to vote against ACTA but call on Commission and Member states to fix the problematic issues and to get an agreement which is a step forward without creating new problems.

The idea that the Commission and Member states can somehow "fix the problematic issues" and "get an agreement" is just crazy: ACTA has been signed, it can't be changed by even a comma. Its problems can't be fixed in any way, because they are now hard-baked into the treaty. This means that the only rational thing to do is to reject it. For the EPP to admit that it has serious problems and talk of "fixing them" just undermines their credibility here.

So the big question is: how will all these declarations by the main parties pan out when it comes to the plenary vote on ACTA this summer? In theory, there are enough votes to kill it stone dead, but as Rick Falkvinge, the founder of the Pirate Party movement, explains, it's not that simple:

this majority against ACTA is not like other majorities, which are predictable and stable. The European Parliament is fairly unique among parliaments, in that the MEPs are neither required (or indeed expected) to toe the party line, and while the party whip [line] exists, it is mostly of the fun kind. A recommendation, if you like. Deviations from the declared party line is not only common but expected in pretty much every vote. So even though the party groups have declared their party lines, this has no effective binding force on the people doing the actual button-pressing, and it's the tally of them that counts in the end

This means that things are still rather up in the air, and the vote could go either way. However, last week a rather authoritative voice expressed a view on what would happen:

We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the Internet. This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject. We are now likely to be in a world without SOPA and without ACTA. Now we need to find solutions to make the Internet a place of freedom, openness, and innovation fit for all citizens, not just for the techno avant-garde.

The speaker was none other than Neelie Kroes, Vice President of the European Commission, and responsible for the Digital Agenda for Europe. I've explored elsewhere what this extraordinary statement might mean, but for the moment suffice it to say that ACTA continues throw out surprises, and is likely to do so right until the final vote.

That's why it's vitally important not to assume that ACTA is dead. I think the vote in the European Parliament is going to be far closer than people imagine, which means we must keep up the pressure until the very last minute, because you can rest assured that ACTA's supporters in the European Commission, along with the large numbers of well-funded lobbyists that are working on this, will definitely be doing exactly that.

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