[A2k] ePrivacy: Commission's weak proposal forecasts harsh debates

La Quadrature du Net contact at laquadrature.net
Thu Jan 12 04:01:19 PST 2017


 
	* 

Press Release 

TAGS : ePRIVACY, ANDRUS ANSIP, DATA PROTECTION, ELECTRONIC COMMUNICATIONS 

La Quadrature du Net -- For immediate release 

Permanent link:
https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal [1] 

EPRIVACY: COMMISSION'S WEAK PROPOSAL FORECASTS HARSH DEBATES

Paris, 11 January 2017 -- ON TUESDAY 10 JANUARY, THE EUROPEAN COMMISSION
PUT FORWARD A SERIES OF NEW TEXTS ON PERSONAL DATA PROTECTION IN THE EU. IT
INCLUDES THE UPCOMING EPRIVACY REGULATION [2] WHICH WILL FRAME THE
CONFIDENDIALITY AND SECURITY OF OUR ELECTRONIC COMMUNICATIONS, AS WELL AS
THE FAMOUS INTERNET COOKIES, AMONG OTHER THINGS. BEFORE THE LEGISLATIVE
PROCESS HAD EVEN STARTED, LOBBIES FROM THE DIGITAL INDUSTRY AND TELECOM
OPERATORS COLLABORATED CLOSELY TO WATER DOWN AS MUCH AS POSSIBLE THE REFORM
THAT WAS SUPPOSED TO NOT ONLY PROVIDE BETTER SECURITY AND CONFIDENTIALITY
TO ELECTRONIC COMMUNICATIONS, BUT ALSO TO GIVE USERS CONTROL OF THEIR DATA
BACK. NONETHELESS, CIVIL SOCIETY HAS NOT HAD ITS LAST WORD JUST YET. IN THE
COMING MONTHS, WE ARE SET TO ENGAGE IN A HARSH LEGISLATIVE BATTLE TO MAKE
THE EPRIVACY A REALLY AMBITIOUS REGULATION THAT PROTECTS OUR RIGHTS AND
FREEDOMS. 

When the first version of ePrivacy regulation was leaked in last December1
[3], few of us welcomed the relatively courageous direction taken by the
European Commission. When telecoms and the digital industry were simply
requesting the removal of the text, the Commission took, as we recommended
[4] it, the opportunity of this revision to make of ePrivacy a modern and
protective text, finally in phase with EU citizens' expectations on
privacy. Those expectations were revealed one by one through a consultation
of the stakeholders [5] on ePrivacy in Spring 2016 and a Eurobarometer (EU
wide survey) which results were published not long ago, in December. 2 [6] 

In the old version, there were still some of the recommendations made by La
Quadrature and other civil liberties organisations during the last months: 

 	* Reaffirmation of the confidentiality principle as key to electronic
communications, meaning that the content and data used to transmit our
communication through email, texts or chats should not be listened to,
tapped, stored, or monitored (article 5)3 [7];
 	* Regulation of new tracking methods, such as collecting the data that is
automatically issued by our computers or cellphones when connecting to
other devices or networks, e.g. device fingerprints [8] (article 8.2)4 [9]
;
 	* The end-user has to give consent to the use of metadata (i.e. traffic
data and location data) for purposes other than the provision of specific
services (article 6.2)5 [10];
 	* Reaffirmation of the importance of encryption tools for the protection
of security and confidentiality of communications. La Quadrature du Net
considers that the ePrivacy Regulation is a perfect opportunity to put
forward encryption tools and technologies as key to ensuring the
Regulation's stated objective: confidentiality. Although the actual
Commission proposal was modest, it deserves credit for being there at all
(recital 37)6 [11]

This document was leaked in November and has in all likelihood provoked the
anger of telecom operator and actors of the digital industry who have
intensified their lobbying campaigns [12] until the very end of December,
in other words, during the last days of the redaction of the proposal by
the European Commission. The latter did end up yielding on a central point
and deleted from its draft the default configuration of our tools
preventing third parties to store or to access data stored in our devices7
[13]. This measure, as La Quadrature was advocating for months, would mean
that in practice, third-party cookies that are tracking us to sell our data
to advertising companies would be deactivated by default on our devices
(article 10). In the current version, it is not the case anymore, so only
informed users may opt-out. 

But other unfortunate surprises appeared in the regulation proposal,
including some very negative points that were kept, and will be the subject
of our forecoming battles: 

 	* the provisions on collective legal action were deleted. Collective
legal action (the equivalent of US class actions) allows an individual to
mandate an association or a non-profit organisation so it can file a
complaint on his or her behalf (article 21);
 	* localisation data generated outside the context of electronic
communications are not, in the version of the proposal of the Commission,
considered as metadata and thus can be used without the user's consent
(recital 17);
 	* the Commission didn't dare to go further and facing pressure from the
adverstising industry, maintained the possibility for a website to refuse
the access to a service or to the website if the user doesn't give its
consent to be tracked. La Quadrature will keep reaching in the coming
months to MEPs and Member States so users are not forced to accept to be
tracked to access services, and more generally for the development of other
economic models that don't force users to sell off their personal data.

These few points are merely the biggest loopholes that we found after a
first reading, but we will complete this list if necessary following a
deeper analysis of the text. This regulation proposal does have some
interesting elements but it doesn't challenge the economic model of the
digital industry based on the exploitation of personal data. So, last
minute concessions given to advertisers and telecoms are already too big
considering there are still months left of negotiations where lobbies of
the industry will have all the time to undermine the text. At this time,
the proposal doesn't address the concern of EU citizens on the protection
of their electronic communications. 

NONETHELESS, CIVIL SOCIETY - INCLUDING LA QUADRATURE DU NET - IS NOT READY
TO GIVE UP, AND WILL CONTINUE TO REACH TO THE EU INSTITUTIONS AND THE
GENERAL PUBLIC IN ORDER TO MAKE EPRIVACY AN AMBITIOUS TEXT, THAT PROPERLY
ADDRESSES SECURITY AND PRIVACY CHALLENGES RAISED BY THE DEVELOPMENT OF
ELECTRONIC COMMUNICATIONS. 

This Regulation proposal will be discussed and amended in the coming months
at the European Parliament and by member states at the EU Council. To be
continued... 

 	* 1. [14] See the leaked version of December 2016:
https://www.laquadrature.net/files/Leak-projet-r%C3%A8glement-ePrivacy%28d%C3%A9cembre%29.pdf
[15]
 	* 2. [16] "More than nine in ten respondents say it is important that
personal information (such as their pictures, contact lists, etc.) on their
computer, smartphone or tablet can only be accessed with their permission,
and that it is important that the confidentiality of their e-mails and
online instant messaging is guaranteed (both 92%). In fact, more than seven
in ten think both of these aspects are very important. More than eight in
ten (82%) also say it is important that tools for monitoring their
activities online (such as cookies) can only be used with their permission
(82%), with 56% of the opinion this is very important." See the results of
the Eurobarometer:
https://www.laquadrature.net/files/eurobarometer-privacy-2016-EN.pdf [2]
 	* 3. [17] Article 5: "Electronic communications data shall be
confidential. Any interference with electronic communications data, such as
by listening, tapping, storing, monitoring, scanning or other kinds of
interception, surveillance or processing of electronic communications data,
by persons other than the end-users, shall be prohibited, except when
permitted by this Regulation"
 	* 4. [18] Article 8.2 : "The collection of information emitted by
terminal equipment to enable it to connect to another device and, or to
network equipment shall be prohibited, except if: (a) it is done
exclusively in order to, for the time necessary for, and for the purpose of
establishing a connection; or (b) a clear and prominent notice is displayed
informing of, at least, the modalities of the collection, its purpose, the
person responsible for it and the other information required under Article
13 of Regulation (EU) 2016/679 where personal data are collected, as well
as any measure the end-user of the terminal equipment can take to stop or
minimise the collection"
 	* 5. [19] Article 6.2 : "Providers of electronic communications services
may process electronic communications metadata if: [...] (c) the end-user
concerned has given his or her consent to the processing of his or her
communications metadata for one or more specified purposes, including for
the provision of specific services to such end-users, provided that the
purpose or purposes concerned could not be fulfilled by processing
information that is made anonymous"
 	* 6. [20] Recital 37 : "Service providers who offer electronic
communications services should inform end-users of measures they can take
to protect the security of their communications for instance by using
specific types of software or encryption technologies [...]."
 	* 7. [21] See the final version of the proposal of the European
Commission:
https://www.laquadrature.net/files/Leak-projet-r%C3%A8glement-ePrivacy%28d%C3%A9cembre%29.pdf
[15]

ABOUT LA QUADRATURE DU NET

La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.


>In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
digital age. 

La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International. 

List of supporting organisations:
https://www.laquadrature.net/en/they-support-la-quadrature-du-net [22] 

PRESS CONTACT AND PRESS ROOM

contact at laquadrature.net - +33 (0)972 294 426 

https://www.laquadrature.net/en/press-room [23] 

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 _La Quadrature du Net
60, rue des Orteaux
Paris, 75020
_ 

 

Links:
------
[1] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal
[2] https://www.laquadrature.net/files/eurobarometer-privacy-2016-EN.pdf
[3] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote1_3nng37w
[4] https://www.laquadrature.net/en/ePrivacy-open-letter-Commission
[5] https://ec.europa.eu/digital-single-market/en/news/summary-report-public-consultation-evaluation-and-review-eprivacy-directive
[6] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote2_azb4ir5
[7] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote3_o55bdtw
[8] https://panopticlick.eff.org/
[9] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote4_n1boesf
[10] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote5_uiimwxt
[11] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote6_osfphhj
[12] http://www.digitaleurope.org/DesktopModules/Bring2mind/DMX/Download.aspx?Command=Core_Download&entryID=2338&language=en-US&PortalId=0&TabId=353
[13] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnote7_qzd7t98
[14] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref1_3nng37w
[15] https://www.laquadrature.net/files/Leak-projet-r%C3%A8glement-ePrivacy%28d%C3%A9cembre%29.pdf
[16] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref2_azb4ir5
[17] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref3_o55bdtw
[18] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref4_n1boesf
[19] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref5_uiimwxt
[20] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref6_osfphhj
[21] https://www.laquadrature.net/en/ePrivacy-Commissions-weak-proposal#footnoteref7_qzd7t98
[22] https://www.laquadrature.net/en/they-support-la-quadrature-du-net
[23] https://www.laquadrature.net/en/press-room
[24] http://www.laquadrature.net/civicrm/mailing/optout?reset=1&jid=345&qid=189354&h=0bd6e0b7486b94d9



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