Monthly Regulatory Affairs Report

January 2005

The monthly regulatory affairs report is divided into three sections:

"Key Updates" - the latest news on issues of significance to our industry;

"In Brief" - short updates on other relevant news;

"Key Bodies" - the latest relevant documents and notices from agencies and bodies such as ENISA, the Article 29 Working Group, the ERG and   Cocom;

"EuroISPA News" - recent EuroISPA highlights.

Data Retention

EuroISPA meeting with Parliament Rapporteur
European Parliament discussions

European Commission update

Update on the Member States' position

EuroISPA Secretary-General, Richard Nash, met with the European Parliament Rapporteur on the draft data retention proposal on 25th January.

Mr.Alexander Alvaro (German, liberal) has drafted a working document for discussion in the Parliament - its conclusions are:

In respect of the draft proposals:

the legal basis is inappropriate;
the measures are unsuitable and unnecessary (lack of proportionality);

the impact on EU data protection regulations is insufficiently considered;

some of the proposals' provisions are insufficiently clear (e.g. regarding the general applicability to "future technologies", he doubts whether this provision is valid according to German Law);

the financial implications must be assessed further.

the proposals must be separated into 2 documents: one that is appropriate for the EU's Third Pillar, one for the First Pillar;
there should be more justification as to why data preservation is insufficient;

international judicial cooperation must be improved;

the term of retention should be reduced to 6 months;

the data to be retained should be limited to what is necessary for business purposes;

EU-wide compensation/reimbursement provisions should be drafted;

there should be a new data protection regulation for the Third Pillar.

MEPs in the Parliament's Committee on Civil Liberties, Justice and Home Affairs held their first exchange of views on the four Member States' initiative and aggressively opposed the draft Framework Decision. All key MEPs supported the arguments forwarded by associations such as EuroISPA. This is important: secretariat was initially worried that some MEPs would concentrate exclusively on civil liberties issues, rather than a combination of arguments relating to privacy, technical considerations and economic issues. EuroISPA and other CSP industry representatives have been successful in ensuring MEPs’ main question to the Member States is that which industry has been asking for so long: “What is the justification for data retention?” 

Significantly, the Commission also stated that law enforcement and governments have failed to provide sufficient justification to support proposals for mandatory data retention.

Update on the Member States' position

The Member States have not yet reacted to the Commission’s conclusion that the legal basis of the four Member States’ proposal is inappropriate. It is understood they will discuss the issue over the coming weeks and decide on what action to take. The Council is not obliged to withdraw its proposal: consequently it is possible that the Member States will continue with their discussions, while the Commission attempts to formulate a different proposal. In other words, the draft Framework Decision proposed by the UK, France, Sweden and Ireland is by no means “dead”.

The latest version of the Draft Framework Decision can be found here. 

EuroISPA was invited to meet with the office of the European Parliament's Rapporteur (Marielle de Sarnez (French, Liberals)) on the Draft Recommendation on the Protection of Minors and Human Dignity (led by the Culture committee). During the meeting, ISP initiatives on safer Internet related issues were discussed, while the problems caused by blocking orders were outlined.

The Commission's proposed Recommendation on the Protection of Minors and Human Dignity is a revision of a 1998 Recommendation. The Commission has previously undertaken evaluation reports of activities as a follow-up to the 1998 text, which have generally offered a positive assessment of the ISP industry's activities in this subject area. The new proposal does not outline the Commission's current thinking on future policies in great detail; however, this will be used a backdrop for forthcoming Commission work and is thus an important proposal for our industry.

Mme De Sarnez wishes to encourage the development of a greater amount of Internet content purely for children and is likely to make recommendations to this effect in her draft opinion. This draft, which Mme De Sarnez has not yet completed, is due to be discussed in the European Parliament over the coming weeks.

The Commission's proposal can be downloaded here.

The 1998 Recommendation "on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity" can be found here. The Second Evaluation Report for the 1998 Recommendation can be found here. 

The PSG "will advise the Executive Director in the performance of his/her duties under this Regulation, in drawing up a proposal for the Agency's work programme and in ensuring communication with the relevant stakeholders on all issues related to the work programme." (Quote taken from the ENISA website.)

The PSG will meet for the first time on 28 February, in Brussels. 

It remains unclear what the Commission and ERG will do. The ERG holds its first meeting of 2004 in February and it is possible the situation will be clarified then. Whatever the outcome, it is still not expected that the ERG will publish a document in the short-term.

EuroISPA's submission to the Commission's consultation on VoIP in August can be found here. 

MEPs have requested that, as this report has been unanimously adopted, the report be brought forward from the March to the February plenary to be voted upon. 

The Parliament's draft report can be found here (click here for amendments).

The Council's Common Position and the Commission's Proposal are also available. 

In Brief
 

Rome II

Data Protection

.eu

Software Patents

Accessibility

 

Rome II

Discussions planned for a recent European Parliament Legal Affairs Committee meeting were postponed after the Rapporteur (Diana Wallis - British, Liberals) said she would revise certain parts of her draft Opinion. Extensive discussions are planned for the Committee's 14 March meeting. 

The European Commission has announced it will draft a legislative proposal on data protection within Third Pillar activities. The Commission will seek to clarify privacy rights and obligations within the context of law enforcement investigations, for example. Exact timescales for the publication of this proposal are not yet known.
 
 

.eu

The .eu top level domain is still on course to come into general operation in 2005. Negotiations with ICANN to have .eu put in the root are currently being finalised. 

Software Patents ("Patentability of computer-implemented inventions")

The European Parliament has voted to block the controversial Directive on Software Patents. Although Member States reached political agreement on a proposal last summer, the text has never been adopted as a Common Position of the Council: Poland, Spain, Austria, Italy and Belgium have continually refused to support it. The European Parliament therefore availed of an opportunity to call for the legislative process to be restarted. The European Commission must now decide what course of action to take. 

On January 10th, the European Commission launched a public consultation on how to make the benefits of ICT available to all - including more accessbile to the elderly and people with disbilities. The consultation focuses on three key areas: public procurement; certification and the use of legislation (i.e. the possibilities for the harmonising the relevant technical requirements across the EU, promoting interoperability and preventing fragmentation. The document lso outlines "support measures", such as the developmen of eSkills, the further deployment of ICT Reseacrch for promoting eAccessibiliy as well as monitoring of web accessbiility etc.

The deadline for the consultation is 12th February; the results will be incorporated into the Commissions eAccessiblity Communication due out in June.

Futher information on this Consultation can be found here. 

Key bodies
 

ERG

Cocom

ENISA

Article 29 Working Party

 

ERG

ERG Work Programme 2005

The ERG held a public hearing on its 2005 work programme on 14th January. Amongst other issues, the ERG outlined the following documents to be published this year:

- Report on the broadband market (including investigation of how VoIP and “naked DSL”, and unbundled bitstream access affect competitive broadband access provision).
- Document (possible Common position) on regulatory aspects of VoIP.
- Report on experiences with market definition, market analysis and applied remedies.
- Further development of the ERG Common Position on the application of remedies, and a general review of the ERG remedies common position.

The ERG confirmed that VoIP remains its highest priority issue for 2005, which was supported by industry representatives at the hearing. In particular, industry lamented the delays in the publication of the anticipated ERG common position and stressed this was creating uncertainty for providers who have launched or plan to launch VoIP services.

A detailed summary of the hearing can be found here.The full draft work programme can be found here. 

The next meeting of Cocom will take place on 2nd March 2005.

ENISA

The fifth meeting of the European Network and Information Security Agency will take place in Brussels, on 11 March 2004. Key items for discussion include the draft work programme and budget for 2006, work on rules for sensitive information and strategic discussions on future work programmes.

For more news regarding the selection of the PSG, please see here. 

The Article 29 Data Protection Working Party recently adopted a document entitled "Working document on data protection issues related to intellectual property rights" (18th January). The document aims to reiterate the main legal principles that rightholders and other actors involved in offering digital rights management technology should abide by when exercising their rights.

The Working Party:

Recalls the need  to allow for anonymous or pseudonymous transactions on the Internet;

Seriously questions the use of identifiers to trace each user "a priori"  in order to go back to a specific individual in case of a suspected copyright abuse;

Recalls that the data subject must be adequately and visibly informed - before they download tagged data - about e.g. the identity of the controller, the purpose(s) of the processing, the recipients or categories of recipients of the data and the existence of a right of access and rectification of the data;

Stresses the need to ensure data is only used for the purpose for which it was collected;

Underscores that personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed.

Regarding the implementation of the IPR Enforcement Directive, the Working Party states that a fair balance will need to be found between the legitimate interests of copyright holders and individuals concerned when judicial authorities are considering whether to request communication of information on the origin and distribution networks of the allegedly infringing goods or services. They add that "the criteria of the commercial advantage linked with the infringement may be decisive in this respect".

The Working Party's document can be found here. 

EuroISPA news
 

MOU with INHOPE

EuroISPA was represented at the January meeting of INHOPE members by Richard Nash, Secretary General. EuroISPA has a valuable Memorandum of Understanding with INHOPE (the Association of Internet Hotlines in Europe), which allows for informal discussions about latest trends and developments. In particular, Richard Nash was able to discuss practical issues regarding the possible establishment of ISP associations in Sweden, Finland and Greece with the entities that run hotlines in those countries. The hotlines have daily contact with ISPs and this may be a starting point.

Upcoming EuroISPA Events

• 1 & 2 March: EuroISPA Council meeting, Brussels
• 1 March: Discussion between EuroISPA Council and Axel Pawlik, RIPE NCC Managing Director
• 2 March: EU Communications Committee (EuroISPA is an Expert/Observer Member)
• 16 March: EuroISPA to take part in a meeting between Internet industry representatives and EU Commissioner Reding

The first newsletter of 2005 focuses on innovation and features a special contribution from Mr. Keiichiro Seki of the Japanese Ministry of Internal Affairs & Communications. The newsletter also includes articles from the EuroISPA President, Michael Rotert, and from EuroISPA Council Member, Tim Snape (ISPA UK).