European data protection commissioners (DPCs) said they had “grave doubt” about European Union (EU) proposals to mandate retention of telecom and Internet traffic data for law enforcement and security purposes. Not only is legality of proposals questionable, but costs to telecom and Internet industry could be excessive, DPCs said Sept. 11. Moreover, they said, U.S. doesn’t require such retention. DPCs have “repeatedly emphasized that such retention would be an improper invasion” of fundamental rights granted by European Court of Human Rights, they said. Any data retention for law enforcement should be for limited time and where “necessary, appropriate and proportionate in a democratic society.” In specific cases, DPCs said, data should be held only where there was demonstrable need, retention period was as short as possible and practice was “clearly regulated by law” so as to minimize abuses: “Systematic retention of all kinds of traffic data for a period of one year or more would be clearly disproportionate and therefore unacceptable in any case.” Foundation for Information Policy Research (FIPR), U.K.-based think tank, praised DPC statement, saying it was “particularly timely warning for the U.K.,” where govt. was attempting to implement Dec. 2001 Antiterrorism Crime & Security Act. With concern over costs mounting, FIPR said, govt. has been pulling back on its data retention timescale. However, it said, dir. gen. of National Criminal Intelligence Service recently proposed storing traffic data for 2 years. Not only is that invasion of British citizens’ privacy, FIPR said, “the enormous costs of this data retention will immediately fall on consumers as higher bills.” DPCs are “totally right,” said Member of European Parliament Marco Cappato. In May, EP approved amendments to 1997 EU Telecommunications Data Protection Directive giving member states right to authorize data retention for limited periods of time for law enforcement. Cappato “would have appreciated an intervention” by DPCs before EP vote, he told us, because it “could have been useful to reject the socialist/popular compromise” that opened door to “this new general data retention legislative path.” Transnational Radical Party, of which Cappato is member, will do its best to add parliamentary initiatives to DPCs’ “important and welcomed words,” he said. Statewatch, U.K. organization that monitors civil liberties in EU, since has reported that “framework decision” was being drafted that would force all EU states to mandate data retention, possibly for as long as 12-24 months.
Dugie Standeford
Dugie Standeford, European Correspondent, Communications Daily and Privacy Daily, is a former lawyer. She joined Warren Communications News in 2000 to report on internet policy and regulation. In 2003 she moved to the U.K. and since then has covered European telecommunications issues. She previously covered the U.S. Occupational Safety and Health Administration and intellectual property law matters. She has a degree in psychology from Duke University and a law degree from the University of Tulsa College of Law.
Internet shouldn’t be regulated internationally in context of attempt to reopen International Telecom Regulations (ITR), obligations that cover issues such as cost-based accounting rates for international telecom traffic, and U.S. will be “very vigorous” in defending that position at upcoming International Telecommunication Union (ITU) Plenipotentiary (Plenipot) in Marrakech, Morocco, said David Gross, U.S. State Dept. coordinator for international communications & information policy. Gross -- who will lead a 60-member delegation to ITU from public and private sectors (including Dept. of Defense, FCC, NTIA, DoC, NASA and others) -- said U.S. wanted to make sure any action taken on ITR didn’t become back-door Internet regulation. NTIA Dir. Nancy Victory said Internet should be kept separate from traditional telecom regulation. Their comments came at Fri. news briefing on Plenipot.
Telecom industry is generally pleased with existing framework set out by 1998 Basic Telecom Agreement negotiated after World Trade Organization (WTO) Uruguay Round, said Scott Shefferman, WorldCom assoc. counsel-international regulatory affairs. However, only some 80 of 144 WTO members have made commitments to open their markets to voice/data and long distance services and to ensure access to underlying telecom facilities other providers needed, he said at Services 2002 conference on WTO negotiations in services. Conference was sponsored by Dept. of Commerce, U.S. Trade Representative (USTR) and Coalition of Service Industries. Coming out of upcoming talks in Doha, Qatar, Shefferman said, his industry would like to see full market access and national treatment commitments from all WTO members. Audiovisual services industry’s goal for Doha Round is to secure open market commitments, not necessarily liberalization of those markets, said Bonnie Richardson, MPAA vp-trade & federal affairs. Virtually every country trades in audiovisual goods and services, she said, and many have imposed measures to boost their domestic production. Some of those rules don’t have “trade-distorting” effects, Richardson said. Even if they do, she said, audiovisual sector is willing to tolerate “psychological crutches” in order to convince other countries that trade commitments won’t hurt their local cultures. It’s “crucially important” that countries commit to open markets for e-commerce at next round of WTO talks in Doha, AOL Time Warner Vp-International Public Policy Laura Lane said. Despite ups and downs of stock market and high-tech businesses, “e-commerce is alive and well” and nations that have embraced open markets are experiencing tremendous growth, Lane said.
Despite WorldCom debacle and weakness in information and communication technology (ICT) market, FCC isn’t ready to give up on idea that competition is best way to drive innovation and consumer services, FCC Comr. Martin said Thurs. Some business models have survived, and FCC still is trying to work out how market will shake out, he said in panel discussion on ICT at U.S.-Ireland Business Summit in Washington. Telecom Act of 1996 wasn’t massive failure, said Deputy Secy. of Commerce Sam Bodman. U.S. “isn’t perfect, for sure,” he said, but over time its system has proved “pretty resilient.” He predicted increasing efforts by FCC and NTIA to “clarify” regulatory framework in which ICT industry operated and to brush aside impediments in order to give investors more certainty. While he’s not pleased with current state of industry, Bodman said, he thinks it will recover.
Far from being straightforward case, RIAA’s attempt to force Verizon to disclose personal information about subscriber alleged to have been swapping music files online could “uncork a tidal wave” of subpoenas against ISPs, Verizon said late last week. Because Verizon didn’t store any of challenged material on its network or systems, and was merely “passive conduit” for its user’s allegedly infringing material, subpoena issued July 24 under Sec. 512(h) of Digital Millennium Copyright Act (DMCA) doesn’t apply, carrier said in filing in U.S. Dist. Court, D.C., in RIAA v. Verizon. Instead, company said, RIAA is trying to broaden DMCA’s subpoena provision to reach all Internet users, “dazzlingly broad subpoena power” that would allow anyone, without filing complaint, to “invoke the coercive power of a federal court” to compel ISP to produce information about identity of any Internet user. Verizon said any copyright owner ("i.e, virtually anyone") could “contrive asserted copyright infringements” in order to gather personal information about private citizens online. RIAA’s reply to Verizon’s pleading is expected to be filed late Wed., spokesman said. Last Fri., 12 Internet-related consumer and privacy groups filed amicus brief on Verizon’s behalf.
RIAA sued Verizon’s Internet service Tues. in U.S. Dist. Court, D.C., seeking to force latter to identify subscriber RIAA claimed had PC that was “hub for significant music piracy.” On July 24, court issued subpoena under Sec. 512(h) of Digital Millennium Copyright Act (DMCA) ordering Verizon to disclose name, address and telephone number of alleged infringer at identified Internet Protocol address. However, RIAA said in court papers, Verizon refused to comply, citing several grounds, including: (1) DMCA doesn’t allow subpoena to issue unless subscriber committing copyright infringement using Verizon’s network is actually storing illegal material on servers owned or operated by company, not his or her own computer. (2) Verizon qualifies for safe harbor under Sec. 512(a). RIAA disputed Verizon’s arguments, saying, among other things, that: (1) Sec. 512(h) applies to service providers such as Verizon. (2) Whether Verizon qualifies for safe harbor has nothing to do with its responsibility to comply with subpoena issued under Sec. 512(h). (3) DMCA provision authorizes subpoenas to identify alleged infringer, whether alleged infringing content resides on service provider’s or individual’s network. Recording industry has asked court for expedited briefing schedule on its motion to enforce subpoena. In posting on its Web site, RIAA said that while it “disagrees with Verizon’s position in this matter, we value the relationship we have developed with them and other ISPs over the past few years.” Verizon has long history of working with copyright owners and has complied with many subpoenas, said Sarah Deutsch, Verizon vp-assoc. gen. counsel. However, Deutsch said, all of those subpoenas related to material sitting on ISP’s network. RIAA’s subpoena breaks new ground, she said, by relating to material on user’s hard drive. This puts Verizon in sticky position, Deutsch said, of respecting problems copyright holders face while having to protect its users’ privacy rights. RIAA could have obtained subpoena weeks ago by filing “John Doe” copyright infringement case and seeking court order requiring Verizon to disclose its subscribers, Deutsch said. Instead, she said, RIAA sought subpoena, under DMCA, which is issued by court clerk with no judicial review. If RIAA’s argument flies, she said, ISPs could be forced to turn over identity of thousands of subscribers copyright owners are looking for.
Webcasters and record labels will challenge Librarian of Congress James Billington’s decision setting royalty rates for Internet radio, they said Wed. More than 2 dozen Internet radio stations, including Listen.com, AOL, and Live365, intend to file notice of appeal with U.S. Appeals Court, D.C., said Digital Media Assn. (DiMA). “I am hopeful that a negotiated resolution will enable the Internet radio industry to withdraw this appeal, but there has been no indication that the RIAA or SoundExchange are seriously interested in royalty rates” that will keep thousands of small Webcasters alive, said DiMA Exec. Dir. Jonathan Potter. RIAA intends to argue that Librarian’s reliance on RIAA’s licensing deal with Yahoo -- to exclusion of 25 other licensing agreements -- was incorrect, association said. Third appeal was filed about month ago by Harvard’s radio station. But broadcasters in general won’t be challenging Librarian’s rates, spokesman for NAB said. Instead, he said, NAB will focus all its attention on getting “underlying misinterpretation” -- that radio stations which simultaneously stream their programs are subject to royalties -- thrown out by 3rd U.S. Appeals Court, Philadelphia.
As privacy advocates feared, new European Union (EU) Presidency is moving toward broader data retention obligations for telecom service providers, European Parliament Member (MEP) Marco Cappato said Wed. Cappato, co- pres. of Transnational Radical Party, was rapporteur on EP’s directive on privacy in electronic communications. He and other MEPs opposed language -- approved May 30 by Parliament -- giving member states right to authorize retention of Internet and telecom data for law enforcement purposes. At time, Cappato said Wed., key EP parties supporting data retention provision insisted it posed no threat to individual privacy. However, he said, only few days later Spain adopted new data retention rules and British govt. unveiled proposal to permit data retention without court order. “The EU Danish Presidency is now moving in the same direction,” Cappato said. In late June, incoming Presidency sent to Council of Ministers Multidisciplinary Group on Organised Crime draft conclusions on information technology-related measures concerning investigation and prosecution of organized crime. In his note, Presidency urged that “within the very near future, binding rules should be established on the approximation of Member States’ rules on the obligation of telecommunications services providers to keep information concerning telecommunications in order to ensure that such information is available when it is of significant for a criminal investigation.” And while Presidency also recommended that EU countries balance law enforcement needs against citizens’ “lawful interest in keeping their communications private,” memo fails to mention either principles of proportionality or any requirement that such retention be allowed on case-by-case basis by judicial authorities, Cappato said. Multidisciplinary group meets Sept. 16 to finalize Council conclusions, Cappato said: “It would now be interesting to see the reaction from our colleagues that accused us of alarmistic behaviour during the EP debate.”
Librarian of Congress James Billington late Thurs. rejected Webcasting royalty rates for Internet radio broadcasts recommended in Feb. by Copyright Arbitration Royalty Panel (CARP) arbitrators. Most “significant difference” between CARP’s recommendation and final decision, Librarian said, is abandonment of CARP’s 2-tiered rate structure (0.14 cents per performance for Internet-only transmissions and 0.07 cents per each retransmission of performance in AM/FM radio broadcast) in favor of single rate of 0.07 cents for both kinds of Webcasts. Billington also cut some rates for noncommercial broadcasters and reduced fees Webcasters and broadcasters must pay for making ephemeral recordings from 9% of performance fees to 8.8%. Minimum payment for business establishment services was increased to $10,000 from $500. Effective date of rates is Sept. 1. Until then, Webcasters and others with statutory licenses will have to pay royalties for all of their activities under licenses since Oct. 28, 1998, Librarian said.
U.K. Home Office Tues. withdrew controversial legislation aimed at increasing number of public officials authorized to access private phone and Internet records. Measure would have amended one provision of Regulation of Investigatory Powers (RIP) Act of 2000, which currently allows police, intelligence agencies and customs, excise and tax officials to serve so-called RIP s22 notices ordering communications service providers to divulge personal data about their customers. Draft order, which was set for debate in House of Commons next week, not only would have permitted various govt. departments -- such as health, environment, trade & ministry, and work & pensions -- to access private telecommunications data, but also would have granted access to local councils, national health service agencies in Scotland and Northern Ireland, and various other bodies. Draft law provoked firestorm of protest. In June 18 statement, Home Secretary David Blunkett acknowledged widespread concern about proposal: “It’s clear that whilst we want to provide greater security, clarity and regulation to activities that already go on, our plans have been understood as having the opposite effect.” Therefore, he said, it “makes sense to withdraw the current proposals to allow calmer and lengthy public discussion before we bring forward new plans in this field.” That discussion will take place over summer, Blunkett said. News brought sigh of relief from Foundation for Information Policy Research (FIPR), U.K. think tank for Internet policy. “These proposals were poorly considered, poorly justified and over the past week have been condemned by almost everyone outside of Whitehall,” said Ian Brown, FIPR’s new dir. “The Home Office must now tear them up and start again from first principles.” While everyone wants to see wrongdoing investigated, Brown said, handing out investigatory powers to “every bureaucrat in the land” isn’t compatible with “living in a free society.”