[Fsfe-ie] [Fwd: EDRI-gram newsletter - Number 3.4, 24 February 2005]

Teresa Hackett teresahackett at eircom.net
Thu Feb 24 18:36:27 CET 2005

Our own Ciarán contributed to this item:
5.  Brussels demonstration against software patents



    biweekly newsletter about digital civil rights in Europe

                    Number 3.4, 24 February 2005


1.  Italian GSM provider warns: too many wiretaps
2.  Commission opposes framework decision on data retention
3.  McLibel victory European Court of Human Rights
4.  Update on WSIS PrepCom-2
5.  Brussels demonstration against software patents
6.  Controversy over EU Human Rights Agency
7.  No extra regulation for Voice over IP
8.  Recommended reading: software patents
9.  Agenda
10. About

1. Italian GSM provider warns: too many wiretaps

The Italian mobile operator TIM, one of the largest mobile phone companies
in Italy has issued a unique warning that the number of wiretaps has
reached the limit. In a fax sent to all Italian public prosecutors they
say that they have already over-stretched their capacity from 5.000 to
7.000 simultaneously intercepted mobile phones. New requests now have to
be processed on a 'first come first serve' basis, they write.

Even more unique in the current secretive environment of law enforcement,
the Italian Minister of Justice Roberto Castelli (right-wing Lega Nord)
has provided the newspaper Repubblica with statistics about the number of
wiretaps and costs. The number of wiretaps has doubled every two years, he
said, from 32.000 intercepts in 2001, to 45.000 in 2002, to 77.000 in
2003. He estimates the number of wiretaps in 2004 to be 100.000, costing
the Justice department aprox 300.00 million euro in cost reimbursements.
In 2003 the department of Justice spent 225 million euro on the
intercepts, in 2002 230 million and in 2001 165 million.

Castelli admitted the number of police intercepts in Italy was very high.
Currently Italy has aprox 58 million inhabitants. With 100.000 intercepts
in 2004, Italy orders 172 judicial intercepts per 100.000 inhabitants.
There is no information about wiretaps ordered by secret services in any

Castelli referred to the report of the German Max Planck Institute which
already concluded Italy was the wiretapping champion of the (western)
world with 76 intercepts per 100.000 inhabitants (44.000 wiretaps in
1996). The number two on the European wiretapping list in 1996, the
Netherlands, refuses to provide any recent statistics. According to
unofficial estimates the Netherlands intercepted 12.000 phones (fixed and
mobile) in 2004. If those numbers are correct, the Netherlands have 75
intercepts per 100.000 inhabitants. In the United States, the most recent
public statistics date from 2002. They mention 1.273 court ordered
intercepts on a population of aprox 293 million, totalling 0,43 intercepts
per 100.000 inhabitants. The UK Communication Commissioner mentions a
total of 1.983 warrants for intercepts in 2003 on a population of 59,5
million, totalling 3,3 intercepts per 100.000 inhabitants.

One possible explanation for the explosion of the number of wiretaps in
Italy is their short duration. An order is valid for 15 days and can only
be extended with a new motivation from a magistrate. Only for
investigations into organised crime an intercept can last 40 days. In many
other countries, intercepts have a duration of 1 to 3 months.

Vodafone and Wind, two other major mobile phone companies, are also
reaching their maximum wiretapping capacity, reports Repubblica. While
Castelli used the occasion to warn against overuse of wiretapping in
investigations, the Italian magistracy doesn't seem to agree. Edmondo
Bruto Liberati, President the National Association of Magistrates
(association of both judges and public prosecutors) stressed that
wiretapping is much cheaper than individual covert surveillance. He
complained about the vast under-financing the judicial apparatus is
currently suffering from.

This public debate between the Minister and the magistracy points at a
more fundamental division in Italian politics. By stressing the immense
costs of wiretapping the Minister of Justice adds weight to his attempt to
shift the costs to the Ministry of Internal Affairs. Generally the
Minister pictures an image of a foolish magistracy that abundantly spends
public money. This comes as no surprise to many Italians, given the tense
relationship between Berlusconi and the magistracy.

MP Giovanni Russo Spena (left wing opposition, Rifondazione Comunista) has
demanded an explanation from the government about the massive use of
wiretapping in investigations and wishes to be informed how citizens are
protected against this potential and actual invasion of their privacy

Troppe intercettazioni / La Tim: 'Esaurite le linee' (19.02.2005)

Troppi cellulari intercettati. La Tim: 'Esaurite le linee'(20.02.2005)

Rechtswirklichkeit und Effizienz der Überwachung der Telekommunikation
[..], Max Planck Institute for Foreign and International Criminal Law,
international statistics on page 104 (in German, June 2003)

Public statistics US legal intercepts (to 2002)

Public annual report UK legal intercepts (2003, published July 2004)

(Thanks to Andrea Glorioso, Italian consultant on digital policies)

2. Commission opposes framework decision on data retention

The European Commission has made it clear to all the Ministers of Justice
and Home Affairs in the EU that there is no legal basis for a framework
decision on mandatory data retention in the third pillar. The draft
framework decision on data retention was introduced in April 2004 by the
governments of France, the UK, Ireland and Sweden in an attempt to bypass
the Commission, the European Parliament and even national parliaments. In
the third pillar, the ministers may agree unanimously on a decision to
harmonise legislation on police and justice matters, without any
co-decision right for the European Parliament and a very limited margin
for national parliaments to amend such a decision. In the proposal for
data retention this margin is clearly defined. National parliaments may
choose a different timeframe for the retention, but only if they review
their decision annually and report to the Commission why they are still

According to an update about developments in the JHA Council given to the
Dutch Parliament, the Commission wants to initiate a proper first pillar
legal initiative, with full co-decision rights for the European
Parliament. In a letter from 15 February to the Lower House and the Senate
the Dutch Minister of Justice Piet Hein Donner mentions this radical
development as a matter of fact, but doesn't seem to draw any conclusions
as to the legitimacy of the project.

Answering critical questions from MPs minister Donner provides an overview
of current data retention legislation in the EU. Close reading shows there
is not a single country in the EU with mandatory data retention for
internet providers. Some countries do have framework legislation under
which specific data retention decrees can be made, but in no country
except for Italy has such a decree entered into force. In Italy telephony
providers are obliged to store traffic data for a period of two years. In
Ireland a secret decree was issued in 2002 demanding 3 year storage of
traffic data. When the data protection commissioner found out about the
decree in 2003, a national scandal broke out and the Department of Justice
promised to organise a consultation and to  introduce proper legislation.
The consultation took place in the summer of 2004 but up to day the Irish
Parliament has not been presented with a proper legal proposal.

In an earlier meeting from the EP Committee on Civil Liberties, Justice
and Home Affairs (LIBE) a representative from the Commission already gave
some support to the claim from the rapporteur, Alexander Alvaro, that the
immense costs for the industry deserved a proper first pillar treatment
(See EDRI-gram 3.3). No official statement from the Commission has
surfaced yet. Behind closed doors the European Justice Commissioner Franco
Frattini seems to prepare for a frontal collision with the JHA Council.

Letter to the Dutch Parliament (in Dutch, 14.02.2005)

3. McLibel victory European Court of Human Rights

An important ruling in the McLibel case, the European Court of Human
Rights has defended "the public’s right to criticise massive corporations
whose business practices can affect people’s lives, health and the

The McLibel case dates back to 1990 when McDonald's decided to file a
libel case against 2 English people that were handing out critical
leaflets in front of a branch in London. Helen Steel and Dave Morris
didn't write the leaflet themselves but became the centre of a libel case
which lasted 313 days - the longest trial of any kind in English legal
history. In 1994 they were ordered to pay 60.000 UK pound in damages each,
because they were unable to prove every allegation in the leaflet. In
appeal, in 1997 the sentence was lowered to 40.000 UK pound each. Despite
the fact that many allegations were proven to be true, no sanctions were
ordered against McDonald's.

Steel and Morris were both unemployed and had no intention nor means of
paying the damages. McDonald's didn't enforce the payment, in silent
admittance critics were right in claiming this was the worst corporate PR
disaster ever.

Steel and Morris went to the European Court of Human Rights in Strasbourg
claiming the English libel system seriously violated their freedom of
speech. They did not get any legal assistance, and were forced to prove
every allegation into minute detail. The Court found UK libel law breached
the European Convention on Human Rights Article 6 (right to a fair trial)
and Article 10 (right to freedom of expression). Steel and Morris are
entitled to damages worth 35.000 euro, plus a reimbursement of the fees of
their defendants.

The case is covered since 1996 on the website mcspotlight.org, with
abundant critical information on past and current McDonald's business
practices. A documentary about the McLibel case has been screened at many
independent film festivals world wide. Currently Steel and Morris are
trying to raise funds to release the documentary on DVD.

McSpotlight website

Press release European Court of Human Rights (with links to the verdict,

Documentary: McLibel: Two Worlds Collide (52 mins, 1997)

4. Update on WSIS PrepCom-2

After two weeks of intense debate in Geneva tomorrow the second
preparatory conference to the WSIS (World Summit on the Information
Society) ends. The second and final World Summit will take place in
Tunisia in November 2005.

The Human Rights caucus (a loose coalition of currently 59 human rights
organisations) devoted its time in the first week to express concerns
about the WSIS process and accreditation issues. They also organised a
press conference and a panel debate. During the second week intensive
discussions took place about the official documents (political chapeau and
operational part, financing mechanisms report, internet governance

On 14 February all the civil society representatives were briefed by
Congo, with the participation of Mr Geiger (Executive Director of WSIS and
head of the executive secretariat) and Ambassador Karklins (President of
the WSIS 2nd phase process). The HR caucus raised the sensitive issue of
accreditation, both of member HRIC (see below) and of Tunisian independent
civil society organisations that are not legally recognised. Both Mr
Geiger and Mr Karklins seemed very supportive.

On 16 February the HR Caucus (represented by co-chair Rikke Frank
Joergensen from EDRI-member Digital Rights Denmark) participated in a
civil society press conference at the Palais des Nations. Joergensen
argued that, while the HR caucus understands governance, financing and
WSIS follow-up activities are indeed central issues in the second phase,
human rights and social justice still are crucial and transverse concerns
that should be raised, specially since civil society as a whole has
strongly fought in order to have those included in the WSIS. The same day
the caucus also participated in a press conference organised at the Swiss
Press Club in Geneva. The conference was organised by caucus member
Amnesty International (Swiss section) and by Communica-CH, the Swiss civil
society co-ordinator. The title of the press conf was: "WSIS in Tunis: a
Summit on information under repression?" It resulted in good press

On 17 February the HR caucus organised a successful 3 hours panel on
'Information society and Human Rights', with the participation of five
members of the caucus (DIHR, IRIS, FIDH, HRIC, LTDH), plus an introduction
from the Austrian ambassador (Walther Lichem) in his capacity of member of
PDHRE (People's Decade for Human Rights Education). The panel was very
well attended (120 to 150 persons), with representatives from governments
(Canada at the ambassador level and Denmark, Swiss, France, etc. as well
as Osamu Shiraishi, representing the OHCHR (Office of the High
Commissioner for Human Rights).

On 18 February caucus member Human Rights in China (HRIC) called for
support after having once more been denied accreditation to WSIS,
following China's intervention. The HR Caucus decided to initiate a rapid
petition calling for support. The petition currently has 30 signatures
from a range of civil society organisations and will be send next week to
Mr Geiger, to be added to HRIC accreditation file, as well as to
Ambassador Karklins.

In general, members of the different human rights organisations engaged in
fruitful networking with other caucuses to bridge the gap between the
human rights agenda and more specific WSIS issues such as education,
cultural diversity and privacy and security. The HR caucus has provided
written contributions with comments about the political chapeau and about
internet governance. PrepCom3 will be held in September 2005.

Website of the WSIS Human Rights Caucus (in English and French)

Petition about the accreditation of HRIC (in English and French)

(Contribution by Meryem Marzouki, co-chair of the WSIS Human Rights Caucus
and EDRI member IRIS)

5. Brussels demonstration against software patents

On the cold Thursday morning of 17 February, 250-300 people gathered on
the square between the European Commission and the Council of the European
Union in Brussels, Belgium for a demonstration against patents on software
ideas. The demonstration was aimed to support the request made that same
day from the European Parliament Conference of Presidents, i.e. the heads
of the political groups, to the Commission for a restart of the procedure.
Many turned up dressed as old-style prisoners, wearing badly fitting black
and white striped clothes and signs such as "I am a software writer".

Bananas were handed out to everyone and were waved in the air as the group
marched to hand letters (and bananas) to the Luxembourg presidency of the
EU and the European Commission DG Internal Market. The bananas were a pun
on a remark made early in January by a representative of the Luxembourg
Presidency in a meeting with the Foundation for a Free Information
Infrastructure (FFII): "This is not a Banana Republic". He meant the
directive as adopted in May 2004 had to be adopted by a Council and
procedures wouldn't be changed because of later differences in opinion in
national parliaments. But according to the protesters, the two attempts to
schedule the proposal as A-item at the inappropriate Council meetings of
the Ministers of Agriculture and Fishery, even after it had become clear
that there was no majority for the proposal anymore, surely indicated
quite the opposite.

It is unclear how the Commission will respond to the request from the
European Parliament to restart the procedure. According to an article in
ZDNet, Council and Commission each wait for the other to make a decision.
Possibly the item will be on the agenda of the Competitiveness Council on
7 March, but it is unlikely it will be presented as an A-item. In Spain,
The Netherlands and Germany the national parliaments have adopted motions
on 8, 10 and 17 February 2005 respectively, forbidding their ministers to
agree with the current proposal. The Danish government already asked for a
delay before, not giving in to alleged pressure from Microsoft threatening
to withdraw their development branch Navision from Denmark, with 800 jobs.

Pictures of the demonstration (17.02.2005)

Demonstration background information and news coverage

Patent directive deadlocked (23.02.2005)

Extortion should not decide Danish IT policy (15.02.2005)

(Thanks to Ciarán O'Riordan, Irish Free Software Organisation, www.ifso.ie)

6. Controversy over EU Human Rights Agency

The plan from the European Commission to transform the Vienna Monitoring
Centre on Racism and Xenophobia into an Agency for Fundamental Rights has
met with strong criticism from the Council of Europe (46 member states).

The Financial Times quotes Terry Davis, secretary-general of the
Strasbourg-based Council of Europe, "With all the best will in the world,
I can't understand what it is going to do." Instead, Mr Davis proposes a
merger between the Council of Europe (founded in 1949) and the
Organisation for Security and Co-operation in Europe (created in the
1970s). Both organisations have a budget of around 180 million euro per

The Vienna-based OSCE, whose 55 members also include Canada, the US and
central Asian states, gave the merger idea a cool response. FT quotes a
senior official: "The OSCE is a security organisation with a comprehensive
mandate, of which the human dimension is just one aspect. The Council of
Europe is a legal norm-setter, while the OSCE is a political negotiating
forum and a highly operational player with a strong field presence."

On 9 December 2004 European Digital Rights warmly welcomed the creation of
the new agency in an answer to a public consultation about the agency.
(See EDRI-gram 2.24). In a speech to the Bundestag in Berlin on 14
February 2005 EU Justice Commissioner Frattini said he was "encouraged by
the strong support given by Member States as well as civil society to the
idea to create this Agency, which should be operational by 2007."

'Too many of us in the human rights business', European leaders are told
(07.02.2005, subscription only)

EU Observer summary of FT article (07.02.2005)

Speech Frattini (14.02.2005)

EDRI-gram 2.24 'EDRI response on new EU human rights agency' (15.12.2004)

7. No extra regulation for Voice over IP

On 11 February the European Regulators Group (ERG) released a common
statement against regulation of Voice over IP services. The statement from
the 25 national regulatory authorities was welcomed by EU Commissioner
Viviane Reding, responsible for Information Society and Media.

In a press release from the Commission she says: “I expect Voice over IP
to lead to more diverse and innovative services in the market which may
well have an even bigger impact on consumers and businesses than email.
(...) I am convinced that, as the market develops, the European Commission
and national regulators will jointly ensure that throughout the EU, the
roll-out of new IP-based services will not be hindered by regulatory

In June 2004 the Commission organised a consultation on VOIP. The main
concern from the industry centres around the obligations of PATS, publicly
available telephone services. Among the 86 public responses is a paper
from ETNO (European Telecommunications Network Operators' Association),
the powerful European lobbying group from the incumbent telephony
operators. They hesitantly reject general telephony demands on Voice over
IP services such as guaranteed access to emergency services, number
portability and provision of location information, but on the other hand
see a market advantage if a national regulatory authority would provide,
"on request, a standardised declaration to those suppliers that undertake
to provide publicly available telephone services in accordance with the
applicable conditions in the general authorisation." ETNO also sees an
advantage in a separate number plan: "when VoIP services are offered as a
nation-wide nomadic service, a dedicated number range may be appropriate."
The many footnotes in the document show how divided the operators are
amongst themselves. Some companies such as the Dutch KPN clearly try to
preserve their market position in the telephony world by claiming for
extra regulation, while other companies such as Telekom Austria and
British Telecom seem to favour a more practical approach towards internet

A different answer is provided by Skype, the provider of peer-to-peer
software for VoIP services which also allows users to make calls to
regular telephone numbers. "In Skype´s opinion a VoIP service that does
not offer access to emergency services can not be defined as a publicly
available telephony service (PATS)." Only 'traditional' operators should
be burdened with any PATS obligations, Skype writes. "For example, if a
law enforcement agency wishes to intercept a VoIP communication that is
being transported across the PSTN, the PSTN provider, rather than the VoIP
provider, should offer the means for intercepting the communication." When
it comes to separate numbers, Skype clearly opposes: "Furthermore, the
allocation of specific numbers could easily lead to the situation that
calls to these specific VoIP numbers are more expensive then calls to the
standard numbers."

Press release European Commission (11.02.2005)

Common Statement European Regulators (11.02.2005)

Answers to Commission Consultation (June 2004)

8. Recommended reading: software patents

The Swedish jurist Sandra Paulsson has published a 27 page report on the
differences in approach between the US and the EU approach to software
patents. She has written the briefing for the European Parliament as
trainee at the Policy Department for Economic and Science (STOA).

Paulsson finds the differences between the patent systems in the US and
Europe a lot smaller than most people think, and warns that the effects
will probably be similar. "One of the aims with the directive is to
"achieve the right balance between making patents available where
appropriate in order to reward and encourage innovation, while avoiding
stifling competition and open source development." Therefore it is
important to see what the proposed directive would allow in practise. My
findings are that neither the original proposal, the amendments by the
European Parliament, nor the Council's changes actually fulfil the aim of
making the balance so that innovations will be both promoted and
protected. My conclusion would be that the directive would clarify for
patent offices in Europe to adopt the same broad standard that exist in
America today, the same standard that European stakeholders are so afraid
of and claim to try to avoid."

Sandra R. Paulsson, Patenting Software vs. Free software (February 2005)

9. Agenda

16 March 2005, London, UK, eCulture Workshop
Workshop hosted by the UK's Sixth Framework Central Information Point
(FP6UK) to network and refine proposals for EU funding opportunities under
IST call 5. This programme addresses the strategic objective 'Access to
and preservation of cultural and scientific resources'.

17-18 March 2005, Amsterdam, The Netherlands
First European Creative Commons meeting

31 March 2005, deadline call for papers on DRM
Special session on Digital Rights Management during the 31st Euromicro
conference on Software Engineering and Advanced Applications (SEAA) 2005
in Porto, Portugal. This special session is open to discuss technical,
legal and business issues with DRM and the social aspects regarding users
understanding and fair use. Papers should be around 6-8 pages (not
exceeding 6000 words) and include an abstract.

6-8 April 2005, Belfast, Ireland, BILETA 2005
Over-Commoditised; Over-Centralised; Over-Observed: the New Digital Legal

12 April 2005, Deadline funding applications
Civil rights organisations and initiatives are invited to send funding
applications to the German foundation 'Bridge - Bürgerrechte in der
digitalen Gesellschaft'. A total of 15.000 euro is available for
applications that promote civil rights in the digitised society.

12-15 April 2005, Seattle, USA, CFP 2005
The program committee of the annual Computer, Freedom, Privacy Conference
is accepting proposals for conference sessions and speakers for CFP2005.
The conference will be held in the Westin Hotel in Seattle, Washington.

14-16 Aprile 2005, Padova, Italy, FLOSS 2005

6-11 June 2005, Benevento (Naples), Italy
Digital Communities 2005

11-15 July 2005, Genova, Italy, OSS 2005

28-31 July 2005, Den Bosch, The Netherlands
What The Hack, major open air hacker / internet lifestyle event

8-9 September 2005, Brussels, Belgium
EuroSOCAP Workshop on confidentiality and privacy in healthcare
3 year programme to develop new ethical standards for privacy and patient
access to (electronical) files, started on 31 january 2003.

10. About

EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 17 members from 11 European countries. European Digital
Rights takes an active interest in developments in the EU accession
countries and wants to share knowledge and awareness through the
EDRI-grams. All contributions, suggestions for content or agenda-tips are
most welcome.

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Creative Commons Attribution 2.0 License. See the full text at

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