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This is the monthly
EU Tech Policy Brief
from the Center for
Democracy &
Technology (CDT). It
highlights some of
the most pressing
technology and
internet policy
issues under debate
in Europe, the US,
and internationally,
and gives CDT's
perspective on them.
Our aim is to help
shape policies that
advance our rights
in a digital world.
Please do not
hesitate to contact
our team in
Brussels: Jens-Henrik Jeppesen, Jorge Castro, or Scott Craig, and connect with us @CenDemTech and @JensJeppesenCDT.
We welcome feedback
on the issues we
deal with. If you do
not wish to receive
the newsletter,
please unsubscribe
using the link at
the bottom of this
email.
Intermediary
Liability: Letter to
European Commission
on Code of Conduct
for Illegal Hate
Speech Online
CDT sent a letter
to European
Commissioner for
Justice Vĕra Jourová
asking a number of
questions and raising
various concerns about
the Code
of Conduct on
Countering Illegal
Hate Speech Online.
The European
Commission developed
the Code together with
Facebook, Twitter,
YouTube and Microsoft,
and announced it on 30
May. It is one of many
initiatives
governments and
authorities in Europe
and elsewhere are
taking to restrict
various types of
content. Our letter
questions whether the
practices laid down in
this Code of Conduct
are sufficient to
ensure that the free
expression rights of
internet users are
protected and
respected. We ask how
courts or other
independent arbiters
will be involved in
determining what is
and what is not illegal
hate speech, and what
standards will be
applied. We ask about
what appeal mechanisms
or remedies will be
available for internet
users whose speech has
been censored under
this regime. Finally,
we ask how the Code
will ensure
transparency and
safeguards against
misuse.
Intermediary
Liability: JHA
Council adopts
conclusion on
improving criminal
justice in
cyberspace and
European Commission
presents new
communication on
radicalisation
This month, EU
Ministers on Justice
and Home Affairs
adopted Council
conclusions on
improving criminal
justice in
cyberspace,
setting out three
priorities: Enhancing
cooperation with
service providers,
streamlining Mutual
Legal Assistance (MLA)
proceedings, and
reviewing rules on
enforcement
jurisdiction in
cyberspace. The
conclusions mandate
the European
Commission to develop
several initiatives
and to report on their
progress from December
2016. CDT has consistently
called
for improvements
to the MLAT system for
access to data by law
enforcement
authorities because,
although imperfect,
the system respects
the rule of law and
decreases the risk of
improper access to
data. The European
Commission should
present the first
deliverables on these
initiatives by June
2017. Together with
the Council
conclusions, the
European Commission
presented a new "Communication
on supporting the
prevention of
radicalisation
leading to violent
extremism". No
new initiatives are
proposed, but the
Communication outlines
the roles of the
European Commission,
Member States, and
relevant stakeholders
in preventing and
tackling
radicalization and
violent extremism
online.
Digital
Copyright: Ancillary
rights — unnecessary
barriers for
innovation and free
speech
CDT submitted
its input to the
European Commission's
public consultation on
the role of publishers
in the copyright value
chain and on the
"panorama exception",
restating
our objections
to the introduction of
ancillary rights in
copyright laws in
Europe. Our chief
concerns are negative
effects of such rights
on smaller publishers,
citizen journalism
and, more importantly,
freedom of
information. Firstly,
ancillary rights
negatively impact
publishers by creating
barriers to access to
their works by adding
transaction costs and
legal uncertainty for
individuals or
organisations wishing
to link to online
publications,
resulting in decreased
traffic to publishers'
own sites. A decrease
in traffic to
publishers' online
offerings would
disproportionately
affect smaller
publishers and those
who operate primarily
online. Secondly,
creating a
neighbouring right for
publishers would
negatively impact
authors by adding
barriers between their
works and their
audiences as well as
between authors and
published works they
might wish to
reference. Thirdly,
issues may arise from
a right dependent on
defining a class of
persons or entities as
"publishers." In the
online context, it
will be difficult, if
not impossible, to
define such a class
without either making
the class too broad or
too narrow. Creating a
new right for a
vaguely-defined group
will lead to both
confusion as to who
may claim the right
and abuses by those
who would improperly
claim it. The European
Commission is expected
to present its second
set of proposals on
copyright after the
summer, most probably
in September. We hope
the European
Commission recognises
the negative effects
for innovation and
free speech online
that an ancillary
right would have.
Open Internet:
BEREC publishes its
draft Net Neutrality
guidelines and US
FCC wins court
appeal
The Body of European
Regulators on
Electronic
Communications (BEREC)
published its
long-awaited draft
Guidelines on the
Implementation by
National Regulators
of European Net
Neutrality Rules.
The guidelines will
aim to ensure
consistent application
of the Telecoms Single
Market (TSM)
Regulation by
providing NRAs with
recommendations on
particular issues such
as zero-rating,
traffic management
techniques, and
specialised services.
BEREC invited
public comments,
and will issue final
guidelines by 30
August. This is the
deadline by which the
TSM Regulation
instructed BEREC to
lay down
implementation
guidelines. CDT is
currently working on
its input to the
public consultation.
In addition, moving to
the US, in a
resounding victory for
net neutrality
advocates and
consumers alike, CDT welcomes
the Washington, D.C.
Circuit Court of
Appeals decision in US
Telecom v. FCC.
In the landmark
ruling, the court
clearly upheld the
FCC's authority to
classify broadband as
a Title II common
carrier, which will
prevent broadband
providers from
leveraging their
market power to
discriminate against
or block lawful
content.
Internet
Governance: IANA
Transition Proposal
meets NTIA criteria
necessary to advance
Another major
milestone has
been reached in
the IANA transition
with the National
Telecommunications and
Information
Administration (NTIA)
announcing in a report
that the community
proposal "meets the
criteria necessary to
complete the
long-promised
privatization of the
IANA functions." With
regard to the criteria
that the proposal
should not replace the
US Government role
with a government-led
or intergovernmental
organization solution,
the report clearly
states that "the
naming community
firmly grounds its
proposal in
multi-stakeholder
bodies, processes, and
decision making" and
that "the proposed
structure of
participation does not
allow any opportunity
for dominance by
governments or any
other single
stakeholder
community." The NTIA's
comprehensive report
confirms that the
methodical — at times
belaboured —
approaches that the
community undertook to
address the challenges
of replacing the
clerical and
stewardship roles of
the US Government and
enhancing ICANN's
accountability were
ultimately the right
ones.
Tech Talk:
CDT's monthly
podcast
Do not forget to
listen to our new
podcasts on staying
secure online while
traveling, fairness
in algorithms and
privacy-smart
wearable companies,
and what's
next in US
government
surveillance reform.
You can find Tech Talk
on SoundCloud
and on iTunes.
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