EU's Unconvincing ACTA Act

The EU has made an official statement [.pdf] on ACTA. As you might expect, it is as wriggly a wriggly thing as a wriggly thing can. Here it is, with a few annotations:

The Commission can inform the Honourable Member that the Anti-Counterfeiting Trade Agreement (ACTA) will be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data. This includes the Intellectual Property Rights' relevant aspects of the Telecoms package.

As for being in line with "EU legislation", this *already* allows ACTA-like provisions, so that's cold comfort.

ACTA should not contain measures restricting end-users’ access to the internet that would not be appropriate, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure.

These are the same weasel words used in the Telecoms Package, and have no real weight whatsoever without judicial oversight: no protection there.

It is the Commission's view that ACTA is about tackling large scale illegal activity, often pursued by criminal organisations, that is causing a devastating impact on growth and employment in Europe and may have serious risks to the health and safety of consumers. It is not about limiting civil liberties or harassing consumers.

That may well be; but the great ACTA bait and switch means that civil liberties *would* be limited, and consumers *would* be harassed.

So, "no points - nul points - keine Pünkte", I'm afraid, for that attempt at mollification.

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So What's the Net Net on Net Neutrality?

Viviane seems confused:

From the governance point of view "Net Neutrality" is essential. New network management techniques allow traffic prioritisation. These tools may be used to guarantee good quality of service but may also be used for anti-competitive practices. The Commission has taken steps to empower national regulators to prevent such unfair abuse to the detriment of consumers. These measures are at the heart of the new telecoms regulatory package

Well, no, not as such. The provisions in the Telecoms Package actually *gut* net neutrality. So either you don't understand what the current proposals say (not difficult, since they are meant to be misleading) or you don't really care about *real* net neutrality.

So which is it?

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Malcolm Harbour Doesn't Get Net Neutrality

It seems that one of the main architects of the disgrace that is the Telecoms Package is the UK MEP Malcolm Harbour. Here's an indication that he doesn't know what he is talking about:

According to rumours in cyberpsace the proposed new rules will impose conditional access to internet, providers will be able to limit the number of site you're visiting and Skype could be blocked. Is Internet freedom really at risk?

That's pure fantasy. The Telecoms package has never been about anything to do with restrictions on the internet. I am astonished to see this remarkable text from Black-out Europe. There is absolutely nothing in this proposal that says anything about that.

The questioner is wrong to frame this in terms of blocking *sites*: it's about blocking *services*, particularly ones based on new protocols piggy-backing on TCP/IP. The Telecoms Package gives telecoms companies the possibility of blocking anything it doesn't like at this level - killing net neutrality - provided they tell people what they are doing.

So Mr Harbour is absolutely incorrect to say "The Telecoms package has never been about anything to do with restrictions on the internet." He obviously doesn't understand what Blackout Europe is saying, as the latter's own post on the topic points out.

Last Chance to Save the European Internet

Believe it or not, this saga isn't over, and things are going badly again. The Open Rights Group has a good detailed summary of what's happening, but the short version is this: all of the hard-won victories on the Telecoms Package may come to nought in a vote tomorrow through some outrageous bullying and trickery by national governments (especially UK and France.)

This means we need to write - or, better, phone - our MEPs, and get them to vote as follows:

Here are crucial amendments you should tell MEPs to vote for:

* Trautmann's report
o Amendment 3=7: guarantee of access and distribution of any content/application/service
o Amendment 1CP=2=5=6=9: original 138

* Harbour's report
o Amendment 101=111=117: no discrimination in traffic management policies
o Amendment 102=112=118: regulatory powers against discriminated traffic management policies
o Amendment 62=94=104=119: original 166
o Amendment 96=106=120 : deleting cooperation between ISP and copyright holder about lawful content

As you can see, this has become hideously complicated thanks to the constant to-ing and fro-ing of votes and amendments. Perhaps it's simplest to ask them to vote for the "Citizen's Rights Amendments", and emphasise why it's important to do so. Basically, if they don't, we'll lost net neutrality in Europe, and also the right to judicial reviews before people are thrown off the net on the say-so of companies.

MEPs by country, complete with their direct telephone numbers, can be found on the excellent Quadrature du Net site, which has bags of background info. In the UK, you can find out who your MEPs are by entering your postcode into the WriteToThem service.

Update: This rather poorly-written piece ("digital copyright thieves"? - Sorry, you don't understand the law) suggests that a deal has been done:

Last month, MEPs voted for a bill that read: “No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities.” But, facing opposition from the Council Of Ministers, they on Tuesday rewrote the passage to read: “Recognising that the internet is essential for education and for the practical exercise of freedom of expression and access to information, any restriction imposed on the exercise of these fundamental rights should be in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms.”

This is particularly nauseating:

“The spirit of the amendment has been respected ... we have avoided the rejection of the amendment.” Trautmann said the compromise writes a “sense of a principle” in to the bill.

No, you just gave in to bullying, love.

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The Closing the European Internet

Openness lies at the heart of the Internet, at every level. Indeed, the success of the Internet, and of the open services that run on top of it, was one of the first - and remains one of the most important - demonstrations of the benefits of adopting open architectures. Unfortunately, it's an openness that is fairly subtle for non-technical people; above all, it's not at all obvious to politicians, who seem to assume that apparently minor tweaks won't change things much....

On Open Enterprise blog.

Battle for the Soul of the European Internet

Even though the internet is 40 years old, and the Web 20, it's only in the last couple of years that European politicians have started to take a deep interest in its workings – and implications for society. However, the flurry of activity we have seen in recent months more than makes up for that long neglect....

On Open Enterprise blog.

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Save the European Internet – Write to Your MEPs (Again)

Last week I was urging you to write to a particular set of MEPs about proposed changes to the Telecoms Package, which is wending its slow way through the European Union's legislative system. Now it's time to write to *all* you MEPs, since a crucially important vote in a couple of committees is to take place tomorrow. You can read more about what's been happening and why that's a problem on the La Quadrature du Net site, which also offers a detailed analysis of the Telecom Package and the proposed amendments.

Here's what I've just sent to all my MEPs using WriteToThem:

I am writing to ask you as my representative to contact your colleagues on the IMCO and ITRE committees about crucial votes on the Telecoms Package, taking place in 31 March. At stake is nothing less than the future of the Internet in Europe. If amendments being supported by AT&T and others go through, the main driver of the Internet – and with it, online innovation – will be nullified.

This would be deeply ironic, since it was in Europe that the most important online innovation of all – the Web – was invented. In fact, no less a person than Sir Tim Berners-Lee, its inventor, has warned (at http://dig.csail.mit.edu/breadcrumbs/node/144) that the loss of net neutrality – which is what some of the proposed amendments would lead to – would have made it impossible for him to have carried out his revolutionary work. If we wish Europe to remain in the forefront of digital innovation, it is vital that the net neutrality of the Internet be preserved.

This is a complex issue – I personally find it very difficult to navigate through the many conflicting options before the committees. Fortunately, others have already done the hard work, and boiled down the recommendations to the following.

For your colleagues on the IMCO committee, please urge then to:

Vote against the amendments authorizing “net discrimination” and guarantee it is not put in place, by :

rejecting amendements 136=137=138 pushed by AT&T (and the related recitals 116, 117=118)

voting for amendment 135 bringing protection against “net discrimination”

as a default, if the first ones were all rejected, vote for ams 139+141

Vote for positive protection of EU citizens' fundamental rights in amendments 72=146

Vote for protecting EU citizens' privacy by rejecting amendment 85 and voting for am. 150.

Similarly, for those on the IMRE committee, please ask them to:

Protect EU citizens fundamental rights and freedoms by voting for amendment 46=135 (first reading amendment 138).

Reject the notion of “lawful content” in amendment 45 for it is a major breach to the technical neutrality of the network, would turn operators into private judges, and open the door to “graduated response” (or “three strikes”) schemes of corporate police.

If you or your colleagues are interested in seeing the detailed analysis of all the amendments, it can be found here:

http://www.laquadrature.net/wiki/Telecoms_Package_2nd_Reading_ITRE_IMCO_Voting_List.

This is a critical series of votes for the Internet in Europe. At a time of great economic turmoil, the last thing we can afford is to throttle Europe's entrepreneurial spirit; for this reason, I hope that you will be able to convince your colleagues on the committees to vote as suggested above.

Sadly, this is really important and really urgent. Please add your voice if you can, or the Internet as we know may cease to exist in Europe soon, to be replaced with something closer to a cable TV service. You have been warned.

Follow me on Twitter @glynmoody

Save the European Internet – Write to Your MEPs

Things seem to be going from bad to worse with the EU's Telecoms Package. Now, not only do we have to contend with French attempts to push through its “three strikes and you're out” approach again, which the European Parliament threw out, but there are several other amendments that are being proposed that will effectively gut the Internet in Europe.

The Open Rights Group has a good summary of two of the main threats (also available from its Blackout Europe Facebook group):

One of the most controversial issues is that of the three-strikes strongly and continuously pushed by France in the EU Council. Although most of the dispositions introducing the graduate response system were rejected in first reading of the Telecom Package, there are still some alarming ones persisting. France is trying hard to get rid of Amendment 138 which seeks to protect users’ rights against the three-strikes sanctions and which, until now, has stopped the EU from applying the three-strikes policy. Also, some new amendments reintroduce the notion of lawful content, which will impose the obligation on ISPs to monitor content going through their networks.

The UK government is pushing for the “wikipedia amendments” (so-called because one of them has been created by cutting and pasting a text out of the wikipedia) in order to allow ISPs to make limited content offers. The UK amendments eliminate the text that gives users rights to access and distribute content, services and applications, replacing it with a text that says “there should be transparency of conditions under which services are provided, including information on the conditions to and/or use of applications and services, and of any traffic management policies.”

To these, we must now add at least one more, which the indispensable IPtegrity site has spotted:

Six MEPs have taken text supplied by the American telecoms multi-national, AT&T, and pasted it directly into amendments tabled to the Universal Services directive in the Telecoms Package. The six are Syed Kamall , Erika Mann, Edit Herczog , Zita Pleštinská , Andreas Schwab , and Jacques Toubon .

AT&T and its partner Verizon, want the regulators in Europe to keep their hands-off new network technologies which will provide the capability for broadband providers to restrict or limit users access to the Internet. They have got together with a group of other telecoms companies to lobby on this issue. Their demands pose a threat to the neutrality of the network, and at another level, to millions of web businesses in Europe.

As you can read, this is a grave danger for the Internet in Europe, because it would allow telecom companies to impose restrictions on the services they provide. That is, at will, they can discriminate against new services that threaten their existing offerings – and hence throttle online innovation. The Internet has grown so quickly, and become so useful, precisely because it is an end-to-end service: it does not take note of or discriminate between packets, it simply delivers them.

What is particularly surprising is that one of the MEPs putting forward this amendment is the UK's Syed Kamall, who has a technical background, and in the past has shown himself aware of the larger technological issues. I'm really not sure why he is involved in this blatant attempt by the telecoms companies to subvert the Internet in Europe.

Since he is one of my MEPs (he represents London), I've used the WriteToThem service to send him the following letter:

I was surprised and greatly disappointed to learn that you are proposing an amendment to the Telecoms Package that would have the consequence of destroying the network neutrality of the Internet – in many ways, its defining feature.

Your amendment 105, which requires network providers to inform users of restrictions and/or limitations on their communications services will allow companies to impose arbitrary blocks on Internet services; instead, we need to ensure that no such arbitrary restrictions are possible.

As the inventor of the Web, Sir Tim Berners-Lee, has pointed out when net neutrality was being debated in the US (http://dig.csail.mit.edu/breadcrumbs/node/144):

“When I invented the Web, I didn't have to ask anyone's permission. Now, hundreds of millions of people are using it freely. I am worried that that is going end in the USA.

I blogged on net neutrality before, and so did a lot of other people. ... Since then, some telecommunications companies spent a lot of money on public relations and TV ads, and the US House seems to have wavered from the path of preserving net neutrality. There has been some misinformation spread about. So here are some clarifications.

Net neutrality is this:

If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level.

That's all. Its up to the ISPs to make sure they interoperate so that that happens.

Net Neutrality is NOT asking for the internet for free.

Net Neutrality is NOT saying that one shouldn't pay more money for high quality of service. We always have, and we always will

There have been suggestions that we don't need legislation because we haven't had it. These are nonsense, because in fact we have had net neutrality in the past -- it is only recently that real explicit threats have occurred.”

He concludes:

“Yes, regulation to keep the Internet open is regulation. And mostly, the Internet thrives on lack of regulation. But some basic values have to be preserved. For example, the market system depends on the rule that you can't photocopy money. Democracy depends on freedom of speech. Freedom of connection, with any application, to any party, is the fundamental social basis of the Internet, and, now, the society based on it.”

I'm afraid that what your amendment will do is to destroy that freedom. I am therefore asking you to withdraw your amendment, to preserve the freedom of the connection that allows new services to evolve, and innovations to be made without needing to ask permission of the companies providing the connection. Instead, the Internet needs net neutrality to be enshrined in law, and if possible, I would further request you and your colleagues to work towards this end.

If you are also based in London – or in a constituency represented by one of the five other MEPs mentioned in the IPtegrity story - I urge you to write a similar (but *not* identical) letter to them. It is vitally important these amendments be withdrawn, since most MEPs will be unaware of the damage they can do, and might well wave them through. Further letters to all MEPs will also be needed in due course, but I think it's best to concentrate on these particular amendments for the moment, since they are a new and distrubing development.

Follow me on Twitter @glynmoody

Nutting Net Neutrality

If you thought all that anti-net neutrality stuff was just for Yanks, think again: they're trying to sneak it over here, too:

Telcos are lobbying hard for discriminatory practices in network management to be permited, which threaten the neutrality of the Internet. They are opposed by citizens groups who are calling on MEPs to close the loopholes in the Telecoms Package Second Reading.

Liberty Global is the latest telco to throw its hat in the anti-net neutrality ring, with a statement in support of its colleagues at AT&T and Verizon. In a statement to run with its European Parliament seminar today, Liberty Global calls for limitations on regulatory intervention in respect of ‘network management practices'. The AT&T amendments are about trying to stop European regulators taking the kind of action that the FCC was able to take in the Comcast case, where a netwwork operator was restricting lawful services on the Internet and the FCC told it to stop.

Eternal vigilance is the price of Liberty (Global)...

EU Puts "Three Strikes" on Ice

Here's a turn-up for the books:

The European Commission is set to put proposals to tackle online piracy on ice until the end of its current mandate, following heavy pressure from telecoms companies and consumer organisations alike, EurActiv has learned.

The EU executive had been expected to bring forward two initiatives in the first half of 2009, both of which could have forced a more restrictive EU-wide approach to free and illegal downloading.

The most ancipated measure was a follow-up to a Communicationexternal on online content, presented at the beginning of 2008, which hinted at restrictive measures to curb online piracy. Proposals included a mandate for Internet service providers (ISPs) "to suspend or cut access to the web for those who illegally file-share," the so-called three-step model proposed by France (EurActiv 10/12/07).

That's surprising, but what's really striking is the reason for this pause:

Brussels had planned to present actual proposals in the form of a recommendation in April. But now the plan has been frozen "after a radicalisation of the debate which has left no space for manoeuvre," a Commission official told EurActiv, referring to strong lobbying by the content industry (in particular music), supported mainly by France, in negotiations over the telecoms package.

"There will be no recommendation. The Commission will only later present issue papers," which may be used by the next Commission after it is sworn in at the end of 2009 or in 2010, explained Martin Selmayr, spokesman for Viviane Reding, the EU's information society commissioner.
This suggests the increasingly outrageous demans from the content industries have been their own undoing. Perhaps the era in which lobbyists can dictate legislation at will is finally coming to a close.

But we're not in the clear yet:

Consumers can rejoice too, although restrictive measures at national level are planned in many EU countries. Meanwhile, a new EU-wide attempt to regulate may be made during the current negotiations over the telecoms package, where the Council and the Parliament have the final say.

The fight goes on.

Save Our Amendment 138

As I wrote below, the Telecoms Package is still with us, and there is still the threat that the crucial Amendment 138, which ensures that there is due judicial oversight, will be deleted. Now, then, is the time to start writing some emails to the ministers concerned, whose addresses in the UK are:

mpst.carter@berr.gsi.gov.uk, mpst.vadera@berr.gsi.gov.uk

Here's what I've just sent:

I writing to in connection with the EU Telecoms Package. In particular, I would like to urge you to ensure that Amendment 138 is not deleted or altered substantively. I believe this is important for four reasons.

First, there is a fundamental issue of law here: that punishments should not be imposed “without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information” as the Amendment puts it. To remove or nullify this Amendment would be to signal that the commercial interests of a group of lobbyists supersedes a citizen's basic right to justice.

Secondly, as you know, the Amendment was introduced and passed after a full debate in the European Parliament. For the Amendment to be dropped or rendered void now would be a clear signal that democratic processes are irrelevant within the inner circle of European ministers. At a time when the European Union is struggling to establish its legitimacy with citizens in Europe, this would again send an appallingly negative signal to ordinary people that could have serious repercussions.

Thirdly, at a time when the British Government is rightly promoting the idea of e-government, and the ability of British citizens to access critically important parts of the democratic system via the Internet, it is self-defeating to introduce the disproportionate punishment of being banned from that same Internet. The Internet is becoming as necessary to modern life as electricity or running water, and nobody would suggest withdrawing these from a criminal, however heinous the crime.

Finally, it is worth noting that introducing such Internet bans would, in any case, have almost no effect on the exchange of copyright materials. An external hard disc with a storage capacity of 1 terabyte – 1000 gigabytes – now costs about £100. On this can be stored around 100,000 Mp3 files. Already, it is becoming common for young people to take such hard discs to parties where they swap music amongst themselves. If the “three strikes” law is introduced, it will simply encourage more people to buy such drives, and to swap not hundreds of files but hundreds of thousands of files at a time: it will actually make the problem worse.

For all these reasons, I urge you to ensure that Amendment 138 remains in the Telecoms Package unaltered.

"Three Strikes and You're Out" Struck Down

Wow. I was convinced that the meeting of EU culture ministers yesterday was going to end badly; I was wrong - and I take my virtual hat off to them:

EU culture ministers yesterday (20 November) rejected French proposals to curb online piracy through compulsory measures against free downloading, instead agreeing to promote legal offers of music or films on the Internet.

The EU Culture Council pushed yesterday (20 November) for "a fair balance between the various fundamental rights" while fighting online piracy, first listing "the right to personal data protection," then "the freedom of information" and only lastly "the protection of intellectual property".

The Council conclusions also stressed the importance of "consumers' expectations in terms of access […] and diversity of the content offered online". No mention was made of a gradual response to serial downloaders of illegal cultural material, as foreseen by the French authorities.

I think this is very significant, because it indicates that the culture ministers and their advisers are beginning to understand the dynamics of the Net, that throttling its use through crude instruments like the "three strikes and you're out" is exactly the wrong thing to do, and that there are serious issues to do with freedom of information at stake here that cannot simply be brushed aside as Sarkozy and his media chums wish to do.

Judging by the generally sensible tone of the meeting's conclusions, the optimist in me starts to hope that the tide is finally turning. However, I do wonder whether this saga is finished yet, or whether the Telecoms Package still has some teeth that it can bare....

Update: Following up that thought, here's a letter I've sent to the relevant UK ministers who will be involved in a crucial meeting on the Telecoms Package this week (24/11/08).

Urgent: Telecoms Package Vote *Again*

Back in July I urged you to write to your MEPs about the Telecoms Package. Well, I'm at it again: the main vote was postponed, and will now take place on Wednesday 24 September, so there’s still time to write to your MEPs and ask them to support some amendments that should help (more details from Open Rights Group.)

On Open Enterprise blog.

O Tell Me the Truth about... the Telecoms Package

On Open Enterprise blog.