EU Privacy threat: Phorm & HADOPI?

I just can’t believe that the European Commission would actually be influenced by electoral outcomes to take a stance on something as crucial as privacy. European Parliamentary Elections are scheduled for June 4-7th.

So, what’s the story?
Recent events have shown that EU Telecoms Commissioner, Viviane Reding, not to be opposed to the French HADOPI law. But she DID open an infringement proceeding against the UK government about the use of a behavioural advertising technology known as “Phorm” by internet service providers. My friend, Steve Jackson, already blogged about his privacy concerns around BT’s use of Phorm last summer.

What is HADOPI? will you ask. Good question!
The French HADOPI law stands for “Haute Autorité pour la Diffusion des Oeuvres et de la Protection des droits sur l’Internet”. The idea is that people illegally downloading  copyrighted content through the Internet will be sanctioned. On claim or denunciation, HADOPI follows a 3-strike procedure:

1. A warning email is sent to the connection owner, defined by the IP address, inviting him to install a filter on his own connection. The ISP allowing for this connection should monitor activity.
2. The second step is put into motion 6 months after the first: the same warning is sent by certified mail. On failure to comply or accusation of repeated offenses by the copyright holders, their representatives, the ISP or the HADOPI, in the year following the reception of the certified letter, the third step of the procedure starts.
3. The ISP is required to suspend the internet service for the internet connection, object of the claim, for 2 months to 1 year. The connection owner is blacklisted and third party ISPs are prevented from providing internet connections. This doesn’t interrupt billing. Eventual charges involved by the service termination are at the connection owner expense.

No recourse to a judicial court is possible for the first 2 steps of the procedure, and the last step is not stoppable by judicial recourse. So basically, the charge of the proof is on the connection owner!

First, I wonder how technically this is going to be monitored with dynamic IPs and all. Minor detail say the French authorities.
I won’t even start about the saga that this law brought upon itself since April 2008 in France and in Europe. Let’s say that’s just French spicing on top of how this text was bullied into French law and then lobbied heavily by Mr. Nicolas Sarkozy at a European level.
I’m not surprised either to read that the project of this law spun from a task force led by Denis Oliviennes, CEO of the main French record seller Fnac, who’s business model is dependent upon copyright enforcement.
I sadly smile when I read that Mrs. Albanel thinks the Internet should grow up and the illegal downloading is part of some childhood disease. She should go back to Economics 1O1!

Indeed, access to information, through the Internet connections is profoundly changing the way we are living & consuming. Some sectors – music industry, newspapers, etc. – will be disturbed by this evolution more than others, independent of the number of “patches” you’d want to grant them to allow them to survive in these difficult times.
We’ve heard a lot about government bailouts of banks. As a law abiding & tax paying citizen, I’m not thrilled that public money was pumped into those institutions but I understand that our financial system needs to be stable.
What I do condemn is short sightedness in the likes of Mr. Sarkozy who, on top of HADOPI, also decided to support French newspapers by giving them substantial grants. He should join Mrs. Albanel in an Economics 1O1 class, IMHO!

Hence, I just can’t shake this feeling that between those responsible for legislation and ongoing technological evolution, the gap is growing. Those responsible for legislation, creation & enforcement, have great difficulties understanding what all this Internet thing is about. Hence, public money is being put in wrong places and they are legislating on topics they are ill advised about!
As technology evolves, the need for national & European safeguards is growing.
Amongst my most urgent topics, I want Europe to take a clear stance on privacy.
Privacy is going to be one of the major topics of our century and without clear guidelines, without clear understanding of technical capabilities today and in the future, our legislative body will continue to be influenced by the most prominent lobby groups.

The fact that the European Commission sees a potential problem with Phorm in the UK but totally fails  to see any possible infringement of personal protection with HADOPI in France is totally beyond me.
Belgian legislation is clear, until now, in the sense that those responsible are not the consumers viewing the content but the content providers. They are the ones infringing the law, not the other way around!
If the European Commission does not rethink it’s stance on the French HADOPI law, risk exists that this law will be applicable to other member states in due time!

So my question today is: between Phorm & HADOPI, where’s the difference? How come the first is possibly condemned while the later seems to live safely within it’s borders, possibly being implemented as soon as possible?

Mrs. Reding, your latest speech about Internet of the Future: What Policies to make it happen? mentions that “the Internet of tomorrow must preserve openness. It must also be based on the right governance principles“.
You talk of security and mention privacy but too vaguely: “In this domain, the technological and scientific experts have to work hand in hand with the policy makers“. As far as I know, you are a policy maker and I thank you for your excellent work on the EU Roaming Regulation .Would you also be so kind as to review your position on HADOPI, please? Maybe after the elections, if it’s not too late…

Posted Tuesday, May 26th, 2009 | 8 responses | Add a Comment | Share, Save or Email