Floundering towards EU information law Ian Brown Oxford Internet Institute

Outline Infringement, gossip and child abuse images Constitutional code and the information anarchists

Infringement, gossip and child abuse images

Constitutional code and the information anarchists

Plus c’est la même chose E-commerce Directive ( 2000/31/EC) Section 4: Liability of intermediary service providers (Art. 12 "Mere conduit”, Art. 13 "Caching”, Art. 14 Hosting, Art. 15 No general obligation to monitor) Copyright Directive ( 2001/29/EC ) Art. 5 ( 1): Temporary acts of reproduction referred to in Art. 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Art. 2.

E-commerce Directive ( 2000/31/EC) Section 4: Liability of intermediary service providers (Art. 12 "Mere conduit”, Art. 13 "Caching”, Art. 14 Hosting, Art. 15 No general obligation to monitor)

Copyright Directive ( 2001/29/EC ) Art. 5 ( 1):

Temporary acts of reproduction referred to in Art. 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Art. 2.

Constitutional problems with 3 strikes Proportionality: infringes rights to privacy, expression, association, education, commerce, civic engagement (EU CFR Arts. 7, 8, 11, 12, 14, 36) Oversight: Lack of transparency, public examination of evidence, impartiality, knowledge of law, evidence rules, lawyer and legal aid? EU CFR Art. 47 L. Edwards (2008) ISPs and filesharing, Musicians, Fans and Online Copyright , London

Proportionality: infringes rights to privacy, expression, association, education, commerce, civic engagement (EU CFR Arts. 7, 8, 11, 12, 14, 36)

Oversight: Lack of transparency, public examination of evidence, impartiality, knowledge of law, evidence rules, lawyer and legal aid? EU CFR Art. 47

Quelle horreur! Data Protection Dir. (95/46/EC) Article 12: Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic ECJ Case C-101/01: posting personal data on a website constitutes processing ( Lindqvist ) How far can we regulate individuals as well as intermediaries as data controllers? © is not a promising precedent

Data Protection Dir. (95/46/EC) Article 12:

Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic

ECJ Case C-101/01: posting personal data on a website constitutes processing ( Lindqvist )

How far can we regulate individuals as well as intermediaries as data controllers? © is not a promising precedent

Blocking child abuse images British Telecom system blocks access to pages on secret blacklist Imposed on other retail ISPs by govt Now being considered by EU, with little consideration of constitutional issues

British Telecom system blocks access to pages on secret blacklist

Imposed on other retail ISPs by govt

Now being considered by EU, with little consideration of constitutional issues

A technologised 1st amendment? Were recording industry attacks on P2P systems an unexpected boon for free speech? Resulted in replicated, highly redundant Content Distribution Networks with blind peers (encrypt data flows and caches) and minimal points of observation and control

Were recording industry attacks on P2P systems an unexpected boon for free speech?

Resulted in replicated, highly redundant Content Distribution Networks with blind peers (encrypt data flows and caches) and minimal points of observation and control

Designing for privacy Data minimisation key: is your data really necessary? Limit personal data collection, storage, access and usage Encrypt data in the cloud Minimise middlebox plaintext access and external observability Users must also be notified and consent to the processing of data – user interfaces? Ade Rowbotham (2005)

Data minimisation key: is your data really necessary?

Limit personal data collection, storage, access and usage

Encrypt data in the cloud

Minimise middlebox plaintext access and external observability

Users must also be notified and consent to the processing of data – user interfaces?

Final thoughts Code embeds values; how can we encourage constitutional values (UDHR?) in global computation & communication systems? Run-time vs design-time rights Competition law an unexplored option How far has public disgust with political corruption damaged the rule of law?

Code embeds values; how can we encourage constitutional values (UDHR?) in global computation & communication systems?

Run-time vs design-time rights

Competition law an unexplored option

How far has public disgust with political corruption damaged the rule of law?