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Transatlantic Internet Spying

by dvx Fri Jun 17th, 2005 at 09:26:24 AM EST

The US Justice department is considering a proposal to require ISP's to retain records of customers' internet activites.

Meanwhile, the European Parliament goes head to head with the Council of the European Union on this very same issue - and gets blown off.

(X-posted at BT)

This from CNET:

Your ISP as Net watchdog

Published: June 16, 2005, 4:00 AM PDT

By Declan McCullagh

The U.S. Department of Justice is quietly shopping around the explosive idea of requiring Internet service providers to retain records of their customers' online activities.

Data retention rules could permit police to obtain records of e-mail chatter, Web browsing or chat-room activity months after Internet providers ordinarily would have deleted the logs--that is, if logs were ever kept in the first place. No U.S. law currently mandates that such logs be kept.


This represents an abrupt shift in the Justice Department's long-held position that data retention is unnecessary and imposes an unacceptable burden on Internet providers. In 2001, the Bush administration expressed "serious reservations about broad mandatory data retention regimes."

The current standard only requires Internet providers to retain any "record" in their possession for 90 days "upon the request of a governmental entity."

The crowbar they've picked is the classic hot-button issue of our time:

Justice Department officials endorsed the concept at a private meeting with Internet service providers and the National Center for Missing and Exploited Children, according to interviews with multiple people who were present. The meeting took place on April 27 at the Holiday Inn Select in Alexandria, Va.

"It was raised not once but several times in the meeting, very emphatically," said Dave McClure, president of the U.S. Internet Industry Association, which represents small to midsize companies. "We were told, 'You're going to have to start thinking about data retention if you don't want people to think you're soft on child porn.'"


McClure added that "my sense was that this is something that they've been working on for a long time."

I don't mean to minimize or make light of any facet of the issue of child abuse. But the nebulous accusation "Soft on child porn" - or the threat of such an accusation - is a wonderful stick to beat privacy rights to death with.

"Even if your concern is chasing after child pornographers, the [data] packets don't come pre-labeled that way," [Marc] Rotenberg [director of the Electronic Privacy Information Center] said. "What effectively happens is that all ISP customers, when that data is presented to the government, become potential targets of subsequent investigations."

Meanwhile, a quarter of a world away:

Europe to push ahead with ISP snooping law

Published: June 9, 2005, 10:53 AM PDT

By Sylvia Carr

Special to CNET News.com

Legislation that would require telephone companies and Internet service providers to save information about customers' communications is set to proceed despite being rejected by the European Parliament.

The legislation's draft proposal was introduced jointly by France, Ireland, Sweden and the United Kingdom to aid law enforcement in combating terrorist acts. It will require phone companies and ISPs to retain for 12 to 36 months customer data such as the time, date and location of sent and received e-mails and phone calls. The content of the communications, however, will not be retained.

The European Parliament on Tuesday rejected the proposal, partly on grounds it could be illegal.

Parliament rejected it but the legislation will go forward? What gives?

However, although Parliament's vote has been hailed a victory by organisation representing ISPs, the reality is that the body has no power over the future of the proposal. This is because it is a Pillar 3 proposal, that is, it was set in motion by member states, not the European Commission.

"The Parliament was just being "consulted" on the proposal under the Consultation Procedure and consequently has no power," explains Joe McNamee, EU policy director at the Political Intelligence consultancy. link

The third pillar comprises "Police and Judicial Co-operation in Criminal Matters", and all these matters fall under "consultation": the EP must be consulted, but its decision need not be heeded. (See here for a quick rundown of European decision-making.)

And the decision seems to be a foregone conclusion, as this rather bland press release dated 2 June 2005 (one week prior to the EP decision), which says in part:


A broad consensus emerged on the "step-by-step" approach presented by the Luxembourg Presidency. For Luc Frieden, "that does not mean that all telecommunications data should not be included immediately." First of all, the Council should start with fixed telephone lines and mobile telephones. As for the Internet and calls not completed, the representatives of the Member States agreed on a transitional period to take into account problems that some national providers may encounter in implementing this type of retention. ...

It's all over but the shouting - if we don't shout now.

derailing European legislation?

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman
by dvx (dvx.clt št gmail dotcom) on Fri Jun 17th, 2005 at 09:30:45 AM EST
This is a good example of the EU democratic deficit. The legislation is proposed by the member states, by their not directly elected executive branches, and the directly elected Parliament has no say. Unacceptable, if you ask me. And the substance of it: way to go. A Patriot Act is just what Europe now needs.

The world's northernmost desert wind.
by Sirocco (sirocco2005ATgmail.com) on Fri Jun 17th, 2005 at 10:51:00 AM EST
[ Parent ]
Since Third Pillar affairs are intergovernmental agreements, publics have only one recourse...contact your local member of parliament and/or complain through national governmental channels. Pressure on national governments has the possibility to sway decisions by member states in third pillar areas. So there is a democratic channel for public participation; however, the problem is that these issues never get put before the publics in national political discourses. They are seen as technical issues.

As a long-time fan of the EP, I'd prefer to see most of these third pillar areas communitised into first pillar...but that isn't going to happen anytime soon.

by gradinski chai on Fri Jun 17th, 2005 at 11:33:47 PM EST
[ Parent ]
The European Council (not the council of the European Union) is where all the countries meet - and vote. Unil recently, most votes were unanimous - each government had to approve. Now, some only require a majority.

The European Parliament only has co-decision powers (i.e. bothe the European council and the European Parliament must approve the text in the same terms) in a limited number of areas of decision.

The EU Constitution was giving a number of new co-decision powers to the European Parliament, and this is one of the main reasons why the "non" is a bad thing.

In the long run, we're all dead. John Maynard Keynes

by Jerome a Paris (etg@eurotrib.com) on Fri Jun 17th, 2005 at 11:50:01 AM EST
[ Parent ]
Maybe efforts such as European Tribune are the way to in a very small way address the democracy deficit. Your efforts here are so valued and potentially earthshaking for the standard ways that some decisions in the EU are made.

Look at this issue. How many people would have known about this if it were not for the European Tribune? Only those techies and a few who happen to wade through the back pages of newspapers. But here, here is a forum to educate people and get them to put pressure on a national level which in turn may make states in Pillar II & III areas think twice before agreeing. People contact their local members of parliament or local newspapers...these have the (granted small) possibility of affecting a member state's decision. In a sense, use this space in the way that dKos activates its members to contact congressional offices.

It may not be an easy channel to use and it may work clumsily, but it can at least be a partial way to address the democracy deficit for now.

by gradinski chai on Fri Jun 17th, 2005 at 11:45:18 PM EST
[ Parent ]
I admit I'm not as up to speed on EU structures as I'd like to be, but the corresponding EU website headlines itself Council of the European Union", and describes itself as "... the main decision-making body of the European Union".

The site has a sidebar to the European Council, which describes itself as "...the name given to the regular meetings of Heads of State and Government of EU Member States, and the President of the European Commission (sometimes also called Summit)."

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt št gmail dotcom) on Sun Jun 19th, 2005 at 02:52:34 AM EST
[ Parent ]
Let me see if I've got this right:

The EU is set up to multiply the avenues for proposing and passing laws (laws that will bind all though supported and passed by some fraction in a shaded corner). But if one wants to stop a law, control of several different legislatures will be necessary. Legion, is that you?

Sounds like a great way to rebuild rotten aristocracies.

by citizen on Fri Jun 17th, 2005 at 11:20:17 AM EST
I'm just wondering whether the telecom companies will fight back with a request to the governments for subsidy payments or tax relief on the infrastructure required to keep this information.

Eats cheroots and leaves.
by NeutralObserver on Fri Jun 17th, 2005 at 02:03:31 PM EST
As always scare tactics such such as 'soft on child porn' will get dragged into pushing for this kind of spying.  Not only does Big Brother want to watch/listen and read what we say it seems they want to be able to dig through our underwear drawer so to speak just because they can.

"People never do evil so throughly and happily as when they do it from moral conviction."-Blaise Pascal
by chocolate ink on Fri Jun 17th, 2005 at 04:10:30 PM EST
...is readily avoidable so this legislation is just a waste of money...

Google:  Tor Privoxy "onion routing"

You will find that that anonymity is even government supported...

Truckle The Uncivil - Nullus Anxietas Sanguinae

by Truckle on Fri Jun 17th, 2005 at 04:25:24 PM EST
I'm definitely going to look into implementing that one!

I did note this caveat at EFF:

"Be aware that, like all anonymizing networks that are fast enough for web browsing, Tor does not provide protection against end-to-end timing attacks: If your attacker can watch the traffic coming out of your computer, and also the traffic arriving at your chosen destination, he can use statistical analysis to discover that they are part of the same circuit."

Governments generally have lots of raw computing power.

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt št gmail dotcom) on Sun Jun 19th, 2005 at 03:09:22 AM EST
[ Parent ]

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