ePrivacy Directive: The EU Commission Must Protect the Confidentiality of Communications

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Paris, 21 September 2016 — The European Commission should submit this autumn a draft revision of the 2002 directive on privacy in the electronic communications sector, also called “ePrivacy directive”. This future draft follows a public consultation launched by the European Commission in April 2016 that La Quadrature answered. While for months the telecoms industry, GAFA and member States have been intensely lobbying against this fundamental text, the European Commission must resist these pressures and seriously take into account the proposals from civil society associations in order to produce legislation respectful of fundamental rights, including the right to encryption.

Dear Commissioner Oettinger,
Dear Vice-President Ansip,
Dear Members of the Directorate General CONNECT,

The publication by the Commission of the first results of the consultation on the revision of the ePrivacy directive confirmed a well-known gap between civil society and industry. On diverse topics such as broadening the scope of the directive to new communication services (the so-called over-the-top service providers or OTT), on cookies, on the appropriate type of consent to process personal data, the result is clear: answers from individuals, civil society associations and Data Protection Authorities are radically opposed to the companies’ answers.

It is striking how the so-called opposition between online services and telecoms is only a façade where it comes to broadening the scope of the directive so that the OTT services are covered by the legislation. The coalitions of telecom operators and OTT service providers show that traditional telcos understood how pointless it is to oppose the development of these communication apps and, more broadly, giants such as Google, Facebook and Microsoft. For the operators it seems more profitable to capture new markets and themselves offer over-the-top services. Thus, even if they seem opposed (for example in their answers to the consultation), these big players defend side by side a pure and basic abrogation of the directive, and accuse it of killing innovation, competition and the economic promise of the Digital Single Market.

These campaigns are only the tip of the iceberg that represents the lobbying deployed against this crucial text for Europeans’ right to privacy. If we look carefully at the meetings of Commissioners Oettinger and Ansip, it appears that the ten organisations they meet most often are all big companies: Google, Deutsche Telekom, Microsoft, Telefonica and specialised lobbies DIGITALEUROPE and BUSINESSEUROPE come at the top of the list.

Moreover, member States are also lobbying very strongly, but in their case against the right for individuals to secure their communications. This has been shown by repeated statements of French political leaders and by the joint declaration of Thomas de Maizière and Bernard Cazeneuve on “cybersecurity” on 23 August 2016. Obviously, the revision of the ePrivacy directive represents for them a wonderful opportunity to question the right to encryption under the guise of combating terrorism.

Facing these various pressures, the European Commission must stay the course in defending an ambitious new legal act. This text must both protect our right to encryption, in writing it explicitly into the article on the confidentiality of communications, and also equally impose security and confidentiality obligations on all companies. All this should be done while restricting the derogations given to member States. This subtlel balance should be preserved so that the ePrivacy directive may continue to be a defense of fundamental rights in the digital world, in line with the CJEU’s case law.

Thus La Quadrature du Net calls on the Commission to:

  • remain impartial in elaborating its proposal, by diversifying its sources of expertise;
  • defend the right of Europeans to confidentiality of communications through the recognition of the right to end-to-end encryption, by putting into the text the obligation for member States to protect this right and the distribution of the tools that enable it;
  • make the provisions on cookies consistent with the general Regulation in confirming the illegitimacy of forcing a user to “pay” with his/her data to access a service;
  • remember that 90% of the individuals, civil society associations and data protection authorities who answered the consultation favour a regime for direct marketing calls based on prior consent (opt-in). These answers reflect the general trend regarding how users want to take back control over their data. The public interest is the only direction for the Commission to take.

We look forward to working together.

La Quadrature du Net

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