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EU Data Protection Supervisor Warns Against ACTA, Calls 3 Strikes Disproportionate

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Monday February 22, 2010
Peter Hustinx, the European Data Protection Supervisor, has issued a 20-page opinion expressing concern about ACTA.  The opinion is a must-read and points to the prospect of other privacy commissioners speaking out.  Moreover, with the French HADOPI three strikes law currently held up by its data protection commissioner, it raises questions about whether that law will pass muster under French privacy rules.

Given the secrecy associated with the process, the opinion addresses possible outcomes based on the information currently available.  The opinion focuses on three key issues: three strikes legislation, cross-border data sharing as part of enforcement initiatives, and transparency.

Three Strikes

On three strikes, the opinion begins by noting the privacy implications:

Such practices are highly invasive in the individuals' private sphere. They entail the generalised monitoring of Internet users’ activities, including perfectly lawful ones. They affect millions of law-abiding Internet users, including many children and adolescents. They are carried out by private parties, not by law enforcement authorities. Moreover, nowadays, Internet plays a central role in almost all aspects of modern life, thus, the effects of disconnecting Internet access may be enormous, cutting individuals off from work, culture, eGoverment applications, etc.

The opinion then assesses three strikes within the context of European data protection law, concluding that it is a disproportionate measure:

Although the EDPS acknowledges the importance of enforcing intellectual property rights, he takes the view that a three strikes Internet disconnection policy as currently known - involving certain elements of general application - constitutes a disproportionate measure and can therefore not be considered as a necessary measure. The EDPS is furthermore convinced that alternative, less intrusive solutions exist or that the envisaged policies can be performed in a less intrusive manner or with a more limited scope. Also on a more detailed legal level the three strikes approach poses problems.

Among the specific problems, Hustinx concludes that the benefits simply don't outweigh the costs:

The EDPS is not convinced that the benefits of the measures outweigh the impact on the fundamental rights of individuals. The protection of copyright is an interest of right holders and of society. However, the limitations on the fundamental rights do not seem justified, if one balances the gravity of the interference, i.e. the scale of the privacy intrusion as highlighted by the above elements, with the expected benefits, deterring the infringement of intellectual property rights involving - for a great part - small scale intellectual property infringements.

Data Sharing

The opinion also considers the privacy implications of data sharing arrangements facilitated by ACTA for enforcement purposes:

It can be questioned first whether data transfers to third countries in the context of ACTA are legitimate. The relevance of adopting measures at international level in that field can be questioned as long as there is no agreement within the EU member states over the harmonisation of enforcement measures in the digital environment and the types of criminal sanctions to be applied. In view of the above, it appears that the principles of necessity and proportionality of the data transfers under ACTA would be more easily met if the agreement was expressly limited to fighting the most serious IPR infringement offences, instead of allowing for bulk data transfers relating to any suspicions of IPR infringements. This will require defining precisely the scope of what constitutes the 'most serious IPR infringement offences' for which data transfers may occur.

The opinion follows this with detailed recommendations on how ACTA can facilitate sharing of information and ensure appropriate privacy safeguards.

Transparency

Hustinx is direct and to the point on the issue of transparency:

The EDPS strongly encourages the European Commission to establish a public and transparent dialogue on ACTA, possibly by means of a public consultation, which would also help ensuring that the measures to be adopted are compliant with EU privacy and data protection law requirements.
Comments (11)add comment

Laurel L. Russwurm said:

Garlic anyone?
It is good to see the increased momentum for bringing ACTA out of the shadows.

Somehow I suspect that the light of day will reduce ACTA to ashes like vampires in those great old black & white movies.
February 22, 2010

Julien Frisch said:

At least some official backing
I'm glad that the European Data Protection Supervisor was so intelligent enough to react quickly on this matter, the day after the story became big enough to receive enough attention. This speaks for a sense of timing and political intelligence, which we might need in order to keep ACTA from becoming what it seems to become.

I hope the European institutions will listen - we'll try our best to amplify the voices.

Julien, Euroblogger at http://julienfrisch.blogspot.com
February 22, 2010

pat donovan said:

grunt

welcomr to the wonderful world of corperate law..
guilty till proven broke.
MS snoops, ISP's cemsor, throttle and convict of sharing/copyright violations
industry self regulates.

the rain of terror begins..
packrat
February 22, 2010

crade said:

...
Not fair to blame ISPs for this one. They actually get the short end with a three strikes setup. With three strikes setup, the ISPs don't censor and convict, they are just the tool the RIAA / MPAA use to execute the sentence after They judge and find people guilty. The Companies lobbying for the laws are the ones who get power. The ISPs just get liability so they have no choice but to do what the RIAA / MPAA says (yay).
February 22, 2010

Peter1a said:

Rights
This has to be one of the egregious assaults on Rights I've ever seen. Essentially if you are on the net under this you not only have no Rights but are guilty as well.

Harper will undoubtedly sign on !!
February 22, 2010

Richard Hebert said:

Senior Tech
What really is disturbing is how quickly the politicians are forgetting
that we elected them. I havent voted or gave consent in any way shape or
form to the guy i elected to slip in laws that profit noone but the indudsries.The politicians should be like any other employee. If they are
being idiots we the people of Canada should have the right to vote them out of office and fire them.Democracy is a joke and will keep being a joke until we the voters take that power. Democracy ? in Canada ? you got to be kidding .. we elect king and princes that wont listen to what we say though they have a job because we voted them in. As long as we cant fire politicians , there will be no true democracy and we will be exposed to the kind of abuse of treaties noone voted for being rammed down our throats .. dont get me started :D

Ric
February 23, 2010

Herman Fisher said:

That's why it's a treaty
Wasn't the idea to pass ACTA as a treaty so that signing countries are bound to it regardless of their own laws?
Great way to bypass democracy.

February 23, 2010

Brett said:

Well, at least in Canada, treaties don't work that way
While I believe, in the US, it's the case that treaties immediately become the law of the land upon ratification, that is most definitely *not* the case for Canada. In this country, the government must then pass legislation to harmonize domestic law with our treaty obligations.
February 23, 2010

Boothie said:

Of course it's illegal, that's why it's secret.
A few US companies are stealing the whole audience for music and movies, even if they have to take the whole Internet to do it. From the country that is also trying to steal all of the oil from the poorest nations that have it. And the information in your DNA. OK, now I'm being paranoid, right?
February 23, 2010

crade said:

...
It doesn't "override" the existing laws. What it does it set the agenda for how the laws will be changed. The pressure changes from "Canada must put stronger copyright laws" to "Canada must implement these laws"
February 23, 2010

Herbert said:

Almost there?
Do I detect the scent of revolution in the air?
February 23, 2010

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