Excerpt from the EFF Statement at the regional consultation with NGOs and Group B Countries (September 13, 2005 Brussels)

Delivered by Gwen Hinze, Electronic Frontier Foundation

I wish to make three points on two aspects of the draft Treaty.

(1) The Technological Protection Measure (TPM) Provisions in Articles 16 and 17 are likely to cause significant harm to innovation, competition, freedom of expression and the existing personal use rights of Member States’ citizens.

(a) Broadcaster TPMs are not likely to be effective for the intended purpose, but are certain to cause collateral harm to consumers. In those countries which have implemented these obligations under Article 11 of the WIPO Copyright Treaty (WCT) and Article 18 of the WIPO Performances and Phonograms Treaty (WPPT), these measures have not been successful at stopping or even slowing the unauthorized reproduction and distribution of works online – for instance, every major motion picture released on DVD is currently circulating on peer to peer
networks despite the fact that DVDs have only ever been released with technological measures that are backed by law in Europe, the United States, Australia and Japan. There is no basis for thinking that broadcaster TPMs will be any more effective. At the same time, there is now much evidence that copyright owner TPM laws in the United States and Europe have curtailed consumers’ traditional personal and fair use rights under national law, chilled freedom of expression and scientific research, impaired competition, and stifled technological
innovation.

(b) These provisions will also be bad for innovation and competition because they require Member States to create technology mandates over the design of televisions, radios, and if webcasting is included, personal computers. Contrary to one of this morning’s presentations, there will be little flexibility left to Member States in how they implement these provisions. Broadcaster technological measures, such as the failed U.S. Broadcast Flag, rely on the signal-receiving device acting in a particular way. In order to protect broadcasters’ technological measures, countries must pass laws that ban all devices that do not look for and respond to the particular type of measure. In March 2005, a representative of the North American Broadcasters Association announced that the European Digital Video Broadcasting standards-specifying body hoped to use the technological protection measure provisions in this treaty to obtain national technology mandates over digital television technology in all DVB member states. So this is a very real concern for consumers. As the experience in the United States demonstrates, these mandates over the design of devices that can receive broadcasts, cablecasts and webcasts are likely to stifle technological innovation, preclude the use of free and open source software players, and impair competition.

(c) Rather than adopting a further layer of technological protection measure laws in broadcasts, over and above those already available to copyright owners under the WCT and the WPPT merely out of a sense of parity between different classes of rightsholders, we respectfully request that WIPO Member States examine whether there is a sound policy basis for creating such rights in the first place.

Before Member States are asked to take on these new obligations, EFF reiterates its recommendation made in the November 2004 SCCR meeting, that WIPO should conduct a study on the likely impacts of the new treaty on all stakeholders in the process, and in particular, the impact of technological protection measures for broadcasters, cablecasters and webcasters. Accordingly, EFF supports Alternative NN in Article 16 of the Chairman’s draft text.

(2) Extension to Webcasters

The proposal to create exclusive rights for webcasters raises significant concerns for citizens’ access to knowledge and for innovation on the Internet. At the same time, no economic justification has been given for the creation of new monopoly rights, I wish to make three points here.

(a) These provisions are likely to stifle technological innovation because they require technology companies to negotiate with two sets of rightsholders before they can create technologies that interoperate with web content.

(b) Creating exclusive rights for webcasters, combined with legal sanctions for webcaster technological protection measures, is likely to restrict the public’s access to information. While the Internet is already subject to copyright owner technological protection measures under the WCT and WPPT, While the Internet is already subject to copyright owner TPMs under the WCT and WPPT, the likely impact of a webcaster TPM regime is far broader because as currently drafted, the proposed treaty would provide webcasters, with the right to restrict access to transmissions of works which may not be copyrighted or are in the public domain.

Finally, no economic justification has been demonstrated for the creation of new monopoly rights for webcasters. The proliferation of webcasting companies over the last five years indicates that there is more than adequate capitalization in the market and no further need for economic stimulation.

The economic rationale for protecting traditional broadcasting – namely to recoup the high costs of investment in equipment - simply does not apply to webcasting. To the contrary, creating a new exclusive rights regime for webcasters actually advantages incumbents and precludes the establishment of new players. Moreover, given the immaturity of the Internet media market and the constantly evolving nature of media transmission, it is premature to shape the nascent market by the creation of new monopoly rights in technologies such as “real-time streaming” where those technologies may be obsolete in several years’ time.

There is no consensus amongst American web technology companies that exclusive rights for webcasters is beneficial. The webcasting proposal has been expressly rejected by 20 web technology companies who presented an open letter to the Twelfth Session of the SCCR. Amongst others, the letter was signed by Mark Cuban, the operator of the largest digital HDTV network in the world (HDNet), owner of a major league sports team whose matches are
webcast (Dallas Mavericks), and owner of half a billion dollars’ worth of digital content.

• Digital Copyright
• WIPO's [Draft] Treaty on the Protection of Broadcasting

From the website of the Electronic Frontier Foundation

By Gwen Hinze, Electronic Frontier Foundation

If adopted, the WIPO treaty will give broadcasters 50 years of copyright-like control over the content of their broadcasts, even when they have no copyright in what they show. A TV channel broadcasting your Creative Commons-licensed movie could legally demand that no one record or redistribute it — and sue anyone who does. And TV companies could use their new rights to go after TiVo or MythTV for daring to let you skip advertisements or record programs in DRM-free formats.

If that wasn’t bad enough, the US contingent at WIPO is pushing to have the treaty expanded to cover the Net. That means that anyone who feeds any combination of “sound and images” through a web server would have a right to meddle with what you do with the webcast simply because they serve as the middleman between you and the creator. If the material is already under copyright, you would be forced to clear rights with multiple sets of rightsholders. Not only would this hurt innovation and threaten citizens’ access to information, it would change the nature of the Internet as a communication medium.

Proponents say they need this treaty to prevent “signal piracy”. But the treaty goes well beyond that by creating rights to control “fixations” of broadcasts that only apply after you’ve received and recorded a signal. EFF and an international coalition of NGOs support a real treaty against signal piracy. We’ve drafted a treaty that does just that, but treaty proponents have refused to adopt it.

Before creating a brand new set of exclusive rights for broadcasters, cablecasters, and webcasters, there should be a demonstrated need for such rights, and a clear understanding of how they will impact the public, educators, existing copyright holders, online communications, and new Internet technologies.

• Digital Copyright
• WIPO's [Draft] Treaty on the Protection of Broadcasting

Excerpt from blog entry

By John Levine, Taughannock Networks

The first week in July I went to an acronym-heavy World Symposium on the Internet Society Thematic Meeting on spam in Geneva.

A few people have reported this as a meeting by “the UN”, which it wasn’t. Although the International Telecommunications Union is now part of the UN, it dates back to an 1865 treaty to manage international telegraph communication. The ITU is now three pieces, the ITU-T which handles telephony and related things, the ITU-R which handles radio spectrum, and the ITU-D which coordinates telecom related development in less developed countries (LDCs.) The ITU-T coordinates telephone number country codes, standards for interconnection phone and data networks, and other things to glue the world’s phone systems together, and was the main part of the ITU visible at the meeting. The ITU isn’t the part of the UN that’s supposed to have black helicopters; they would be across the street at the Palais de Nations.

Since most countries have permanent delegations in Geneva or nearby, there were representatives from lots of little countries present as well as most of the big ones. The big country reps tended to be political, so that for example the US delegation was from the State Department, appeared to have no experience or instructions relative to spam, and merely objected to language in the report that might have required that the US do something.

A fair amount of the conference was spent on describing the spam landscape (I discussed the limited standards efforts currently under way) and a bunch of snoozers in which various governments told us that they sure thought it’d be a good idea to do something about spam.

We all agreed that from the point of view of the governments represented, the most urgent need is to coordinate laws and law enforcement so they can pursue the crooks who send the bulk of today’s spam and frequently use computers in multiple countries to do so. Most countries have laws that the crooks are breaking, about computer fraud and abuse or plain old theft, so the immediate issue is to enforce them. The American Federal Trade Commission and the corresponding British and Australian agencies recently signed a Memorandum of Understanding to cooperate in anti-spam enforcement. There was some sentiment for a MOU that lots and lots of countries could join, which would be administered by the ITU, but I got the impression that the big countries would rather not have the baggage of little countries to deal with.

A topic that came up repeatedly was the disproportionate effect that spam has on LDCs. One problem is that their net connections tend to be slow and expensive, so merely downloading the spam to throw it away costs them a lot of time and money. This could presumably be solved at some cost to national pride by locating inbound mail servers or at least mail proxies in places with better connections so that most of the spam is filtered out before being sent down the expensive connection. A more subtle but more important problem is that the all of the spam and phishing and other misbehavior on the net makes LDCs reluctant to use the net at all. People in LDCs are no less smart than people elsewhere, but they rarely have the technical training or experience that their counterparts in developed countries do. The buzzphrase here is human capacity building, something the ITU-D does. The outspoken delegate from Syria made these points quite forcefully.

The last session in the conference was the horse-trading leading to the conference report. (There’s audio archives of the whole thing, so if you want, you can listen to the horses being traded.) I’m not sure exactly what this conference accomplished, but was clear that there’s finally a global consensus that spam is a problem that needs to be fixed, and no country (well, except maybe the resurgently exceptionalist US) can do it alone.

• Spam
• ITU's Activities on Countering Spam

Excerpt from An Advocacy Handbook for the Non Governmental Organisations

By Yaman Akdeniz, Cyber-Rights & Cyber-Liberties (UK)

Otherwise, far from free and unregulated, the Internet may end up as the most regulated medium in history. It should be remembered in the words of Judge Pettiti that “the mission of the Council of Europe and of its organs is to prevent the establishment of systems and methods that would allow ‘Big Brother’ to become master of the citizen’s private life.” But the Cyber-Crime Convention unfortunately suggests otherwise.

• Cybercrime
• COE's Convention on Cybercrime

Excerpt from “Cybercrime Convention: A Positive Beginning to a Long Road Ahead,” Journal of High Technology Law

By Shannon Hopkins

The Council of Europe (CoE) was the first organization to develop an international cyber crime Convention. Although seemingly aspirational, the Convention presents a noble effort towards the harmonization of international law and procedure. Its provisions are not detailed enough to provide substantive rules and procedures for combating cyber crime.

A. The Convention’s Key Definitions Are Too Broad

Chapter One of the Convention identifies key definitions critical to interpreting the Convention’s provisions. The definitions are overly broad and unclear about what conduct falls within the definitions. The Convention definitions should not, however, be so narrow that they disable the Convention’s ability to adapt with technological changes. Instead, these Convention definitions should include only computer and Internet related transactions.

For example, the Convention defines a computer as “any device or a group of interconnected or related devices one or more of which, pursuant to a program, performs automatic processing of data.” The definition is problematic because it does not define or limit what constitutes a device, thus, potentially including devices such as children’s toys, Palm Pilots or cable TV boxes. Moreover, it is difficult to tell whether the definition of computer data includes items such as bar codes used to scan groceries at the supermarket.

The Convention’s broad definition of a service provider could conceivably encompass any Internet user who maintains a website, thus potentially imposing a huge cost and labor burden on a large user group. Furthermore, it is not clear whether the Convention’s ambiguous definition of traffic data includes things such as hyperlinks and http requests. If the definition of traffic data does include hyperlinks and http requests, the definition may be far more invasive on communication than the drafters intended.

Finally, it is unclear whether the term communication used in defining traffic data includes surfing the Internet, which is traditionally both a communication and a transaction. Arguably, the act of reading e-mail by connecting through an ISP to a web mail provider is a transaction rather than communication. Finally, denial of service attacks (“DDOS”) could be construed as a communication even though they also include a transactional aspect.

B. The Convention, Not the Individual Signatories Should Define the Elements
of the Crimes

The Convention encompasses a finite list of crimes, some of which currently are crimes in one signatory country but are not in another. Convention signatories agree to criminalize offenses included therein, in their domestic laws. The Convention does not, however, include guidance detailing the elements required for those offenses.109 In the case of countries that do have legislation, lack of guidance will still likely result in different conduct establishing guilt for the same crimes.

For example, the U.S. may want to prosecute a citizen from France for the crime of illegal access. France’s criminal cyber statute may not include access to a computer system connected to another computer system within the definition of illegal access. Thus, the U.S. could not prosecute a French citizen who accessed a computer connected to another computer. In contrast, if the U.S. and France were both signatories to a Convention codifying the elements of the crime, the U.S. could prosecute a French citizen because both countries would recognize the requisite criminal elements.

Furthermore, if signatories do not agree upon the elements of each crime, we could face a similar debacle as was confronted in Yahoo, Inc. v. La Ligue Contre Le Racism Et L’Antisemitisme recently. In the Yahoo debacle, the French Government found Yahoo violated French law because Yahoo’s auction website permitted the sale of Nazi memorabilia. The Convention would not require the U.S. to cooperate with French authorities if the crime is political.

Authorities found this problematic because the U.S. considered the sale of Nazi memorabilia a political offense but France considered it a crime against humanity.
Crime standardization could, however, pose some difficulties for regulators because countries may be reluctant to sign the Convention if it infringes upon domestic legal regimes and cultures. Specifically, the CoE may face resistance in attempting to harmonize content related crimes, such as hate speech, because states established these types of crimes according to their own cultural values. For example, the CoE has recently approved a hate speech provision banning hate speech on the Internet. This ban includes hyperlinks to other web cite pages containing offensive content. The United States vehemently opposes the hate speech provision because it abridges the First Amendment. Accordingly, the U.S. is unlikely to ratify the Convention.

Critics believe a ban on hate speech in the Convention would encourage hate groups to solely target the U.S. The Convention drafters purposely empowered signatories to enact crime legislation out of concern that if the Convention retained too much power, members would be reluctant to ratify it. The drafters believed this was a better solution than if only a few countries ratified the Convention. Based on these examples, however, the Convention would be more valuable if it also included the elements of the crimes rather than leaving this decision to the signatories.

C. The Convention Must Specify Consistent Procedures for Investigating and
Prosecuting Cyber Crimes

The Convention requires signatories to enact procedures domestically for evidence gathering, including expedited searches, seizures and data collection. Again, the Convention requires the parties to determine how to implement those procedures. In doing so, the drafters intended to respect distinctions in cultures and legal systems by recognizing, for example, disparities amongst parties in levels of privacy protection or speech protection.

Specifically, the Convention requires that the country from where the crime originates, must, at the request of the harmed country, preserve and disclose data to the requesting party. The provision does not, however, specify what law enforcement must demonstrate before accessing potentially private information. Parties with different human rights protections could thus encounter conflicts pertaining to what data must be disclosed. For example, many states do not consider the interception of content data and the collection of traffic data equivalent privacy interests because data collection, without more, does not disclose the communication’s actual content. Consequently, the Convention allows parties to limit certain procedures through reservation to enable broader applications of powers and procedures for collection of realtime and traffic data.

Another conflict arises when a requested party’s domestic laws permit the requesting party to gather more information from the requested party than the requesting party’s own laws would permit. A dilemma exists over whether or not the requested party should supply only as much information as the requesting party is willing to provide. A third conflict arises because parties can decide whether or not to require notice before permitting a search rather than require such notice by law. Moreover, the Convention allows party’s to individually determine the degree of severity required before they require interception or collection of content data. These procedures, however, could be crucial in investigating criminal offenses. Nevertheless, in recognizing the sensitivities surrounding the collection of data, the Convention permits the states themselves to determine the scope of these procedures.

Additionally, the Convention does not address payment of costs associated with data interception, storage and surveillance. Conceivably, such costs could be enormous and impose significant burdens on those required to comply. Critics believe that this could place a heavy burden on service providers to retain data and perform additional record-keeping functions.

Furthermore, this provision may inundate ISPs with data requests from law enforcement, thereby disrupting core business operations. The Convention should include a provision to apportion payment of investigative costs.

Furthermore, the Convention also requires that each signatory provide for conditions and safeguards to balance investigative procedures with the need to protect human rights, but does not articulate those safeguards. The Convention does not clearly define those safeguards or require that signatories harmonize these safeguards with other international instruments, such as the United Nations Convention on Civil Rights. Even if the Convention required harmonization, existing directives such as the European Convention for the Protection of Human Rights and Fundamental Freedoms are outdated. For example, the United Nations Convention on Civil Rights, adopted in 1950, does not adequately respond to communication privacy issues in the digital age.

Although countries currently have different procedures to investigate crimes, and admittedly will continue to after parties ratify the Convention, unless lawmakers harmonize these procedures, they will find it difficult to achieve the Convention’s goals.

• Cybercrime
• COE's Convention on Cybercrime

Excerpt from “Council of Europe Convention on Cybercrime: Themes and Critiques”

By Calvert Jones, Berkeley University

General Critiques

• Undesirably broad coverage of conduct and vague standards

The Convention’s broad coverage of offenses has drawn extensive criticism. Critics argue that it should limit itself to protecting the global information infrastructure by criminalizing “pure” cyber crimes. Fraud and forgery, they argue, are already covered in existing international agreements and should not be included in the Convention as “computer-related fraud” and “computer-related forgery.” There may also be insufficient international consensus on whether and how to criminalize “content-related offenses” like child pornography and copyright infringement – as well as the additional protocol on racist and xenophobic acts committed “by means of a computer system.” These acts do not represent direct threats to the information infrastructure, a globally shared resource, and therefore should not be included in the Convention. The drafters’ general response to these objections is that Parties are free to issue reservations and declarations, allowing them to interpret offenses flexibly with due respect for national and cultural differences.

Even the “pure” cyber crimes may be too vaguely described, possibly imposing liability on legitimate activities and stifling the development of security and commercial technologies. The criminal standard for liability in the Convention is “without right,” which could be too ambiguous and undermine the treaty’s effectiveness. In general, the drafters rely on the Explanatory Report to protect legitimate activity from liability – their strategy is to enumerate exceptions to the offenses that would be considered “with right.” As the technology changes, however, these exceptions would rapidly become outdated. Some critics argue that the Convention should not only limit itself to “pure” cyber crimes for which there is an international consensus, but that it should also define the specific elements of these crimes, rather than allowing the Parties to establish their own elements and vary interpretation through declarations and reservations.

• Insufficient protection of privacy, civil liberties, and human rights

Privacy and civil liberties advocates argue that the treaty is fundamentally imbalanced, in that it requires the establishment of sweeping new powers of investigation without requiring appropriate safeguards and limitations on use. These groups also criticize the absence of dual criminality as an explicit condition of mutual assistance in the area of cyber crime. Although the Convention allows Parties to refuse requests for mutual assistance on dual criminality grounds – provided they have such requirements in current mutual assistance regimes – it does not require that they do so. It does allow them to refuse cooperation if the offense is “political,” but these groups desire more detailed explanation for what qualifies as a “political” offense. They also argue that existing international instruments that protect these rights are inadequate and out of date in the digital age.

In response, the drafters argue that Parties differ too radically in their conceptions of civil liberties and privacy to mandate any specific levels of protection, and that they should sort out for themselves how they will counterbalance the new powers consistent with their established legal principles and cultural norms. Second, they point to parts of the Convention that remind Parties of their obligations to protect these rights as required by other international instruments, and argue that these are not out of date. Third, they reiterate that no Party will ever be required to carry out an investigative measure that violates these rights as protected in domestic law. Finally, they argue that the concept of “data preservation” over “data retention” is an adequate compromise because it balances law enforcement interests and civil liberties.

• Too high a burden on industry to assist law enforcement in investigation

Another critique is based on concerns that the Convention places too high a burden on service providers in requiring that they assist law enforcement in identifying and investigating cyber criminals. Although it does not require any assistance outside of a service provider’s “existing technical capability,” the Convention also does not provide any reimbursement of costs associated with complying with the new procedures, such as data interception, storage, and surveillance, should service providers have the technical capability to cooperate. Critics also worry about broader economic risks stemming from declining trust in e-commerce, if users worry that they are being monitored.

• Insufficient involvement of the private sector in developing a “protective,” rather than “reactive,” approach to cyber security

A major gap in the Council of Europe approach may be its failure to provide for an agency or other more concrete mechanism of involving the private sector in combating cyber crime. The reciprocal, evolving relationship between cyber crimes and the computer security technologies they circumvent is best tracked by the computer security community and other private sectors actors, these critics argue. A reactive strategy to fighting cyber crime, focusing on law enforcement and investigation after the fact, must be complemented by a strong protective approach through routine, comprehensive information-sharing and exchange of lessons learned, with the express involvement of the private sector. The Convention only provides for “consultation of the Parties” (Art. 46), under the supervision of the European Committee on Crime Problems (CDPC). The convention also does not offer guidance about liability when an organization is acting in a protective mode, for example, by disabling attacking computers identified by intrusion detection software.

• Cybercrime
• COE's Convention on Cybercrime

At face value, this initiative has noble purposes. As introduced in the Framework Document for a 10-Year Implementation Plan: “Understanding the Earth system — its weather, climate, oceans, land, geology, natural resources, ecosystems, and natural and human-induced hazards — is crucial to enhancing human health, safety and welfare; alleviating human suffering including poverty; protecting the global environment; and achieving sustainable development. Data collected and information created from Earth observations constitute a critical input for advancing this understanding.”

Still, the notion of the world’s powers combining observation systems may raise “Big Brother” concerns, especially when viewed in the light of oncoming technological developments allowing tiny sensors to form spontaneous communications networks.

To alleviate these global governance concerns, the Draft 10-Year Implementation Plan notes in its introduction:

“GEOSS does not mean an attempt to incorporate all Earth Observing systems into a single, monolithic, centrally controlled system. It is intended to improve the data supply to users and not as a justification for annexing existing observation and data distribution systems into a new international organization. GEOSS systems are themselves often ‘systems of systems’. …The principle of subsidiarity applies: decisions need to be taken at the lowest level in the system hierarchy that is competent to take them.”

• Ubiquitous Computing
• GEO's Global Earth Observation System of Systems

Recommendations VI and VII relate to the transfer of funds via electronic means.

Although in their early days the Internet’s new, non-traditional financial institutions escaped supervisory oversight, Recommendation VI might address this loophole:

“VI. Each country should take measures to ensure that persons or legal entities, including agents, that provide a service for the transmission of money or value, including transmission through an informal money or value transfer system or network, should be licensed or registered and subject to all the FATF Recommendations that apply to banks and non-bank financial institutions. Each country should ensure that persons or legal entities that carry out this service illegally are subject to administrative, civil or criminal sanctions.”

In addition, Recommendation VII requires that the banking institution verify the identity of senders and receivers of funds and that the institution keep this information on file — signaling the possible extinction of anonymous cash transactions as our actions become increasingly network-oriented. The provisions read:

“VII. Countries should take measures to require financial institutions, including money remitters, to include accurate and meaningful originator information (name, address and account number) on funds transfers and related messages that are sent, and the information should remain with the transfer or related message through the payment chain.

“Countries should take measures to ensure that financial institutions, including money remitters, conduct enhanced scrutiny of and monitor for suspicious activity funds transfers which do not contain complete originator information (name, address and account number).”

• Cybercrime
• Money Laundering
• FATF's 8 Special Recommendations on Terrorist Financing

This instrument would address the growing problem of signal piracy in many parts of the world, including piracy of digitized pre-broadcast signals, and the perceived need to update the protection of broadcasting organizations beyond what is provided by the Rome Convention (1961). A major issue is whether the treaty should also include webcasting, which takes place both in the form of direct diffusion of programming online, and by way of simultaneous Internet diffusion of over-the-air broadcasts. Opinion is divided as to whether webcasts as such should be protected in the same way as over-the-air broadcasts.

• Digital Copyright
• WIPO's [Draft] Treaty on the Protection of Broadcasting

If this treaty were to go through, it would provide an extensive international judicial system for the resolution of private disputes concerning Internet matters.

Still, a dispute would be brought to a national-level court, with an arrangment in place for other countries to honor that country’s judgment. The question then becomes, “Which country’s law applies?” if disputing parties have not arranged this choice of law in advance contractually.

• Dispute Resolution
• Hague's "Judgments Project"

While designed for airport security, biometric authentication will likely be an everyday facet of tomorrow’s networked world.

While a country might naturally go along with an interoperable global system for the sake of convenience, Members of ICAO are arguably obliged to do so under Article 22 of the Chicago Convention, which requires signatories to “adopt all practicable measures… to prevent unnecessary delays to aircraft, crews, passengers and cargo, especially in the administration of laws relating to immigration, quarantine, customs and clearance.”

This international agreement among governments stands in contrast to the heated debates that have taken place in various countries regarding the potential effects of national electronic identity cards on civil liberties. In other words, while debates drag on domestically, this international system of electronic identity cards is already underway.

• Electronic ID
• ICAO's Biometric...Machine Readable Travel Documents

Welcome! This “Discussion” section is designed to enable people to share additional knowledge and perspectives on international Net initiatives summarized elsewhere on the website.

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