Freedom of expression and information – P2P Foundation

Transparency should be the norm, trade secrets the exception, never the other way around

Xnet — Mon, 16 May 2016 10:26:54 +0000

Last April 14th, only 10 days after the revelations of the Panama Papers, thanks to an anonymous source, the European Parliament passed the Directive on Protection of Trade Secrets which, regardless of its exception, establishes the general rule the protection of trade secrets over the right to information.

Our elected representatives accepted that when a corporate abuse is denounced, commercial interest need to be protected before citizens and journalists who report it.

This move is a proof that leaks and reports from civil society are putting an end to abusive behavior by politico financial elites which up until now never felt threatened.

The fight to defend our right to know is not finished yet. With this text we want to share with the civil society what are the next steps to follow:

1 – In the 24 months following its approval in the European Parliament, the Trade Secrets Directive must be transposed(adapted) to the national member states legislation to entry into force in every one of them.

In this transposition we have maneuvering room to put pressure on the governments of each country to correct the imbalances of the Directive in favor of the right of citizens to know information of general interest, and to offer enough safeguards for whistleblowers and journalists.

Trade Secret Directive should serve its purpose as a tool to promote EU competitiveness. This will not be the case if it impedes freedom of expression, information and press or transparency, leading to more financial, health and environment scandals and damaging worker’s rights.

This international coalition urges our governments to uphold the following points at the transposition to the national level which can be consistent with the directive:

Protection for journalists
Protection for whistleblowers
Protection for information disclosed for the general interest
Protection for Public Authorities
Limit to the liability for damages of employees towards their employers and reduce the limitation period to 3 years instead of 6
Protecting clinical trials data transparency
Damages appropriate to the actual prejudice suffered
Consistency with the Aarhus Convention on access to environmental information

We are working on a “transposition guide” to help our legislators take the right decisions to protect citizens rights over corporate interests.

2 – In Europe and several countries from the EU there is an ongoing debate on the need to create a specific legislation to protect whistleblowers. We must urge them to pursue this goal and keep an eye on how they are developed.
Here you can find a Decalogue developed by Xnet and the Citizen Group against Corruption in Spain for the protection of whistleblowers:
https://xnet-x.net/en/decalogue-protection-whistleblowers/

3 – To these laws it must be added the defense of the legal use of the information revealed, to counteract the harmful effects of the precautionary measures contained in the Trade Secrets Directive.
In addition to defending the whistleblower, we must make sure that relevant information can be used in court to (re)establish our rights and end the abuses.

There are two important dates in the calendar that we must not forget:

Tomorrow, May 17th the Directive awaits its final confirmation by the Council of the European Union. Even though the Council could block the directive to amend its flaws and threats, we doubt it will do it will have the political boldness to do it.
We will campaign around it on social networks tomorrow from 10 a.m.
Let us remember that a journalist, Edouard Perrin, and he’s source, Antoine Deltour, are being judged in this right moment for unveiling a tax evasion case arranged by those who right now are members of some European governments. We must give them all our support and solidarity.

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Letter to MEPs asking for the rejetcion of Trade Secrets EU Directive

Xnet — Thu, 07 Apr 2016 15:50:22 +0000

Dear MEP,

On behalf of more than 46 civil society organisations in Europe representing journalists, judges, whistle-blowers, scientists, unions, associations… I am writing to you to ask you to consider rejecting the current draft text of the Trade Secrets Protection Directive when you will vote it in Strasbourg next Thursday 14 April.

Industrial espionage and trade secrets theft is a real problem, but we consider that this text abuses its purpose by applying to the whole of society legal remedies that should only apply to economic entities (competitors). Moreover, the text foresees a definition of trade secrets which is so broad that it could include almost any internal information. Therefore, it offers private companies a right to sue anyone who would acquire, use or publish any information or document they consider a trade secret even if this person has no economic intention or motives.

The consequence would be that judges would have to balance crucial political rights and considerations, such as employees’ mobility and innovation, press freedoms and the right and need to access and publish certain proprietary information in the public interest (whistle-blowers but also scientists willing to test the safety of products on the market)… with the economic interests of trade secret owners. This is not needed to fight industrial espionage.

This vote is all the more important that this text will become part of the TTIP if signed.

Please find enclosed a detailed factsheet on the directive which details our concerns and explains our position.

We remain at your entire disposal should you need any additional information.

Kind regards,

Xnet

On behalf of the signatories,

Association Européenne pour la Défense des droits de l’Homme
ALA, Asociación Libre de Abogadas y Abogados
Anticor, France
ATTAC España
ATTAC France
Centre national de coopération au développement, CNCD-11.11.11
Correctiv.org, GermanyBUKO Pharma-Kampagne
CCFD-Terre Solidaire
CGT Cadres, Ingénieurs, Techniciens (UGICT-CGT)
Collectif Europe et Médicament
Collectif de journalistes “Informer n’est pas un délit”
Comité de soutien à Antoine Deltour
Commons Network
Corporate Europe Observatory
Courage Foundation
Ecologistas en Acción
EcoNexus
European Network of Scientists for Social and Environmental
Responsibility (ENSSER)
Fédération Syndicale Unitaire (FSU)
Fondation Sciences Citoyennes
Force Ouvrière-Cadres
Genewatch
GMWatch
Health and Trade Network
Inf’OGM
Institut Veblen
International Society of Drug Bulletins
Les économistes atterrés
Ligue des Droits de l’Homme
Observatoire Citoyen pour la Transparence Financière Internationale (OCTFI)
OGM Dangers
Peuples SolidairesNordic Cochrane Centre
Pesticides Action Network Europe (PAN-Europe)
Plateforme Paradis Fiscaux et Judiciaires
Public Concern At Work
Solidaires
SumOfUs
Syndicat des Avocats de France (SAF)
Syndicat National des Chercheurs Scientifiques (SNCS – FSU)
Syndicat National des Journalistes (SNJ)
Syndicat National des Journalistes CGT (SNJ-CGT)
Syndicat de la Magistrature
Tax Justice Network
Transparency International France
WeMove.eu
Whistleblower-Netzwerk e.V., Germany
Xnet

Analysis of the Directive attached:

PDF: https://xnet-x.net/img/Trade-Secrets-Protection-Directive-Factsheet.pdf

HTML:

“Trade Secrets Protection”

A New Right To Secrecy For Companies, And A Dangerous EU Legislative Proposal Which Must Be Rejected

The proposed EU legislation on “Trade Secrets Protection”, which the European Parliament will vote next April 14, creates excessive rights to secrecy for businesses: it is a direct threat to the work of journalists and their sources, whistleblowers, employees’ freedom of expression, and rights to access public interest information (on medicines, pesticides, car emissions, etc.).

What is the problem?

Trade secrets are everything companies keep secret to stay ahead of competitors. A secret recipe or manufacturing process, plans of a new product, a list of clients, prototypes… The theft of trade secrets can be a real problem for companies, and is already punished in all EU Member States. But there was no uniform legislation on the matter at the EU level.

A small group of lobbyists working for large multinational companies (Dupont, General Electric, Intel, Nestlé, Michelin, Safran, Alstom…) convinced the European Commission to draft such a legislation, and helped it all along the way. The problem is that they were too successful in their lobbying: they transformed a legislation which should have regulated fair competition between companies into something resembling a blanket right to corporate secrecy, which now threatens anyone in society who sometimes needs access to companies’ internal information without their consent: consumers, employees, journalists, scientists…

Since we discovered this text, many months after the European Commission published its legislative proposal, we have been working in the very uncomfortable position of trying to anticipate all possible detrimental consequences, with very limited means, to try to convince EU decision-makers to introduce exceptions to limit the damage. We obviously forgot things.

The European Parliament is expected to vote on 14 April 2016 on the “Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure”. The text can no longer be changed. The directive initially drafted by the European Commission favored companies’ economic rights at the expense of citizens’ political rights. Unfortunately, despite some improvements, the compromise text still does the same. We think it is essential that MEPs reject it and ask the Commission to come up with a better one, but they are under heavy pressure from multinational corporations to adopt it.

Why is it a threat?

With the very broad and vague definition1 used in this draft directive, almost all internal information within a company can be considered a trade secret. With this text, companies do not need to pro-actively identify which information they consider a trade secret, as states do when they put “top secret” or “confidential” labels on documents.

But employees, journalists, consumers… sometimes also need to have access to, use and publish such information without the company’s consent, and would now face legal threats and heavy fines for doing so. The exceptions foreseen in the text do not correctly protect them, and the huge legal uncertainties created by this text will have a chilling effect that will prevent people in possession of information revealing corporate misconduct or wrongdoing from reporting it.

An additional problem is that the Directive foresees precautionary measures to prohibit the disclosure of documents and proofs during legal procedures, hiding them from public sight. While it is true that certain companies sue others for the sole purpose of accessing their trade secrets and that this is a problem, why should such measures, which risk undermining the rights of defence, apply to individuals?

Last but not least, this Directive only sets a minimum standard in the EU: Member States will be able to go further when they transpose the text in national law, and will be lobbied by industry all over Europe to do so. This will create a situation of uneven legislations in the EU that companies will be able to use, launching lawsuits from the country with the most aggressive measures for trade secrets protection. The European Commission keeps talking about the need to prevent legal discrepancies in the EU (its “Better Regulation” initiative), but has not voiced similar concerns as far as this text was concerned.

In January 2015, when the French government tried to adopt in anticipation the key elements of the directive, it added criminal measures of three years in jail and a 375,000€ fine for trade secrets violation (and twice as much when vague “national interests” would be at stake). French journalists mobilised to protect their freedom to report on companies’ misbehaviour, and managed to convince the government to withdraw the project; but comparable measures will be considered again in all EU Member States if the Directive is adopted.

Who is concerned?

Consumers

How safe are products used every day by European consumers? Only independent scientific scrutiny can tell. The scientific studies evaluating the risks of most products in Europe are done by their producers, who then send them to public regulators for assessment. These then take the decision to grant or not a market authorisation.

The problem is that producers systematically oppose the publication of these studies as they consider that they contain trade secrets and, because they are costly, should not be seen and used by competitors. A recent example took place in Rennes, France, where a man died during a clinical trial. Scientists are now asking to access the data of this clinical trial to find out what happened, but the company, Biotrial, refuses, claiming that it needs to protect its trade secrets. Another recent example is glyphosate, the active substance in Monsanto’s Roundup wide-spectrum herbicide: industry-sponsored scientific studies at the basis of the EU’s controversial assessment that it is “unlikely” to cause cancer to humans (the WHO found the opposite 6 months earlier) cannot be published and studied by independent scientists to make the debate progress because their owners consider they are (and contain) trade secrets.

Scientists and civil society groups have been fighting for a very long time to obtain the publication of these studies so that the assessment of products put today on the EU market can be properly… scientific, and significant gains have been obtained for medicines, with the publication of clinical trials data foreseen in the coming years in the EU. But this is still a difficult battle, and with the high financial penalties foreseen in the text for trade secrets disclosure without their owners’ consent, companies will be given an additional argument to threaten public authorities if these would want to publish these studies.

Journalists

Journalists will be directly impacted by the Directive. References to the right to information as defined in the EU Charter of Fundamental Rights are made in the text, but the Charter applies regardless of it being mentioned so this does not make a difference: companies will be given the right to sue anyone publishing information they consider a trade secret, and the judge will have to balance this economic right with journalists’ political right to inform. While there is language in the text that says the right of information should not be harmed by this directive, there is no guarantee that it will actually be given preference, and journalists will have to weigh up the risk, taking into account potential very high financial damages. Legal harassment of media by private companies and wealthy individuals using defamation laws is already widespread, they will now be able to use trade secrets protection as an additional argument pending case law protects the media – if is does! Which media editor will take the risk of financial ruin in the meantime?

Whistleblowers

These are (most of the time) employees willing to reveal actions or plans of their employers that they think harm the public interest. They are often the main source of information of the media or public authorities on corporate misbehaviour, and this has been a very thorny issue in the negotiations since the Commission’s proposal. But even now, whistleblowers are only protected when they act “for the purpose of protecting the public general interest” (Article 5) and when they reveal a “misconduct, wrongdoing or illegal activity”: this restrictive list leaves large gaps. They (and journalists using their information) will need to demonstrate to the judge that they acted with “the purpose of protecting the public general interest”: the burden of the proof is on them, and while large companies can afford long and expensive legal procedures, individuals usually cannot.

For instance, the documents which caused the Luxleaks scandal were contracts between Luxembourg and multinational companies, and, from the point of view of Luxembourg, legitimate since most EU countries are also engaged in such dealings to attract multinationals. As a consequence, the whistleblower and the journalist, who are being prosecuted in Luxembourg for (among other things) trade secrets violations, would not be protected by the Directive even though they revealed a major tax evasion scandal harming all European tax payers who contribute their fair share to public budgets.

Employees

Employees are an important category of persons at stake (the vast majority of existing trade secrets lawsuits are already companies suing former or existing employees). The problem is that the definition used by the directive is so huge that many informations learned by employees in their job would qualify as trade secrets (only “experience and skills” and information not matching the definition of trade secrets are explicitly excluded). This means that if they want to change jobs and use in their new job knowledge and information that their former employer considers is a trade secret, it might sue them during up to six years after they’ve left! This would be very bad for workers’ mobility and, as a consequence, innovation, which thrives on mixing ideas and experiences. The mobilisation of unions has contributed to significant damage control measures in the text since the European Commission’s proposal, but this is not enough – they could not for instance prevent the extension of the limitation period from two to six years maximum…

Aren’t all of them protected by specific exceptions in the text?

In our analysis, the real exceptions in the text (Article 5) are insufficient and the other exceptions (in the Recitals but also especially in Article 1) are political indications that Member States will have the possibility to ignore when adapting the directive in national law. The original proposal by the Commission was very bad and, after we and many others managed to create some public debate about it, MEPs and some Member States added to and improved these exceptions, notably for whistleblowers, journalists and employees. But now the text cannot be changed any more and, as we explain above, we think it is still very far from a correct compromise between the need to protect companies’ trade secrets and the need to defend the integrity of citizens’ political rights.

One must absolutely keep in mind, while discussing this text, that it uses such sweeping definitions for “trade secrets” that it creates numerous legal uncertainties. It will take a lot of time for these uncertainties to be clarified by judges, and there is no guarantee that these will always give priority to political rights against economic interests in their judgements. Furthermore, if the legal definitions are vague, the financial penalties foreseen are potentially significant, and this situation of legal uncertainty and high financial penalties will enable companies to use the “trade secrets protection” argument extensively in their litigations against whoever they think can be attacked with it, even if there is luckily language in the text now repressing manifest litigation abuses.

Again, while trade secrets protection is a legitimate objective, this Directive goes way too far and should be rewritten, and this time with a public debate at the beginning of the process, not at the end. Asking companies to pro-actively identify their trade secrets and using specific unfair competition terminology (restricting the scope to economic operators) as opposed to catch-all intellectual property language, for instance, would do a much better job at enabling companies to meaningfully protect their trade secrets without endangering everyone else’s rights.

Isn’t trade secrets protection good for innovation?

It depends. Trade secrets protection is good for individual companies who want to defend a competitive advantage and can be temporarily necessary to enable them to recoup their investments; but prolonged secrecy is also a way to defend harmful monopoly positions. Overall innovation in society thrives on sharing ideas and processes, not keeping them secret. A journalist who wrote about this Directive commented that “the directive is overall a victory for multinationals panicking about competition”.

Is there a link between trade secrets protection and the TTIP negotiations?

Yes and no. Formally this Directive and the TTIP negotiations are two separate processes. However, it is striking to see that almost exactly the same text is going through Congress as we write and that this will lead to a de facto harmonisation of the legislation on trade secrets protection in the EU and in the US. The regulatory cooperation mechanism foreseen in the TTIP will make changing this legislation very difficult if the TTIP agreement is adopted. This makes rejecting this bad text all the more important.

Signatories

ATTAC Spain

ATTAC France

Centre national de coopération au développement, CNCD-11.11.11

BUKO Pharma-Kampagne

CCFD-Terre Solidaire

CGT Cadres, Ingénieurs, Techniciens (UGICT-CGT)

Collectif Europe et Médicament

Collectif de journalistes “Informer n’est pas un délit”

Comité de soutien à Antoine Deltour

Commons Network

Corporate Europe Observatory

Courage Foundation

EcoNexus

Fédération Syndicale Unitaire (FSU)

Fondation Sciences Citoyennes

Force Ouvrière-Cadres

Genewatch

GMWatch

Health and Trade Network

Inf’OGM

Institut Veblen

International Society of Drug Bulletins

Les économistes atterrés

Ligue des Droits de l’Homme

Observatoire Citoyen pour la Transparence Financière Internationale (OCTFI)

OGM Dangers

Nordic Cochrane Centre

Pesticides Action Network Europe (PAN-Europe)

Plateforme Paradis Fiscaux et Judiciaires

Public Concern At Work

Solidaires

Syndicat des Avocats de France (SAF)

Syndicat National des Chercheurs Scientifiques (SNCS – FSU)

Syndicat National des Journalistes (SNJ)

Syndicat National des Journalistes CGT (SNJ-CGT)

Transparency International France

WeMove.eu

Xnet

1. The draft Directive defines a trade secret as follows: an “information which meets all of the following requirements:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) has commercial value because it is secret;

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;”

The post Letter to MEPs asking for the rejetcion of Trade Secrets EU Directive appeared first on P2P Foundation.

A New Right To Secrecy For Companies, And A Dangerous EU Legislative Proposal Which Must Be Rejected

Xnet — Wed, 30 Mar 2016 15:42:41 +0000

European coalition of civil society organisations, citizens and journalists ask Members of the European Parliament to reject the Trade Secrets Directive

A pan-european coalition of NGOs, trade unions, journalists, whistleblowers and scientists sent today to Member of the European Parliament a critical analysis of the proposed legislation [1], asking them to reject it and to ask the European Commission to write a better one. They also launched a petition against the text [2].

The directive’s official name is “Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure”. The definition of trade secrets it foresees is so broad that almost all internal information within a company can be considered a trade secret. It will put anybody revealing such information without the company’s consent at risk.

“citizens, journalists, scientists… sometimes also need to have access to and publish this information to defend the public interest. They could now face legal threats, years in prison and heavy fines worth hundreds of thousands of euros for doing so, as Antoine Deltour and Edouard Perrin in the Luxleaks affair. This effectively prevents people reporting corporate misconduct or wrongdoing. Which media editor can afford to take the risk of financial ruin?”

It gets worse. If the directive is approved at the European level, member states will be able to go further when they adapt it into national law – and be lobbied by industry all over Europe to do so.

This is not going to be an easy battle: multinational corporations have been lobbying for this directive for years and heavily influenced the text while the general public hardly knows anything about it. The text can today no longer be changed. We call on the European Parliament to reject it.

1 See http://corporateeurope.org/sites/default/files/attachments/factsheet_on_the_trade_secrets_directive.pdf
2 https://act.wemove.eu/campaigns/whistleblowers-at-risk

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Right to Privacy and Encryption

Xnet — Thu, 17 Dec 2015 17:03:54 +0000

The risks for citizens’ fundamental rights of privacy and freedom of expression caused by abusive practices involving surveillance of private companies and/or governments are currently being debated in the European Union and internationally.

As citizens, we are entitled to protect ourselves from this kind of practices. Our personal data and our communications are part of our private life, and as such should be treated.

An open letter to the leaders of the world’s governments for a strong encryption, secure communications and the defense of privacy:

https://securetheinternet.org/

We encourage you to support the safety and security of users, companies, and governments by strengthening the integrity of communications and systems. In doing so, governments should reject laws, policies, or other mandates or practices, including secret agreements with companies, that limit access to or undermine encryption and other secure communications tools and technologies.

– Governments should not ban or otherwise limit user access to encryption in any form or otherwise prohibit the implementation or use of encryption by grade or type;

– Governments should not mandate the design or implementation of “backdoors” or vulnerabilities into tools, technologies, or services;

– Governments should not require that tools, technologies, or services are designed or developed to allow for third-party access to unencrypted data or encryption keys;

– Governments should not seek to weaken or undermine encryption standards or intentionally influence the establishment of encryption standards except to promote a higher level of information security. No government should mandate insecure encryption algorithms, standards, tools, or technologies; and

– Governments should not, either by private or public agreement, compel or pressure an entity to engage in activity that is inconsistent with the above tenets.

Official documents from the European Union and United Nations recognize the end-to-end encryption as the only option available for the citizens to defend themselves against mass surveillance. Likewise, the reports emphasize the need to promote policies that prohibit any attempt to limit the use of or technically weaken encryption.

We summarized the contents of both documents and make available the full texts (linked below) so that they can be used as a tool and basis to defend and demand our right to privacy and encryption:

European Parliament Science and Technology Options Assessment (STOA) on Mass Surveillance

Read the full text

The publication of the secret documents leaked by Edward Snowden disclosing controversial mass surveillance programmes by intelligence and national security agencies has evoked an international debate on the right of citizens to be protected from illegitimate or warrantless collection and analysis of their data and meta-data.

The agencies involved in mass surveillance practices justify these methods with the doctrine of pre-emptive prevention of crime and terrorism. While targeted lawful interception constitutes a necessary and legitimate instrument of intelligence and law enforcement agencies, mass surveillance is considered a threat to civil liberties such as the right to freedom of opinion and expression. These civil liberties are essential human rights in democratic societies and of particular importance for safeguarding independent journalism and political opposition.

For an end user it is practically impossible to detect whether data and meta-data generated is being analysed or used by third parties and even less, if a system is subject to a complex attack orchestrated by powerful opponents like government agencies.

To protect citizens’ rights of privacy and freedom of expression in front of mass surveillance the issue must be addressed technical and politically.

Technical options available to citizens for counteracting mass surveillance, first and above all, encryption, a statement that is shared and confirmed by the security community and Edward Snowden, who says that “Properly implemented strong crypto systems are one of the few things that you can rely on.”

Yet, policy makers must understand that the problem of mass surveillance cannot be solved on a technical terrain, but needs to be addressed on a political level.

Security agencies will always have a competitive advantage in winning a race for technological supremacy in Internet security due to the resources at their command.

An adequate balance between civil liberties and legitimate national security interests has to be found, based on a public discussion that empowers citizens to decide upon their civil rights affected and the societal values at stake.

To reduce the risk of privacy intrusion by mass surveillance encryption must be promoted and defended. Policy options that are considered of help in reducing the risk of privacy intrusion.

a) Promote and invest in resilient open source implementations of different encryption specifications that can be verified and validated for correctness

b) The promotion of open source operating systems and applications that allow for constant inspection and scrutiny by a large community of experts and verification and validation bodies

c) Investing in and stimulating the integration of user friendly, utility-like encryption software solutions

d) Regulate Telecom Operators to apply security mechanisms in form of adequate encryption over their entire networks, avoiding backhauls

e) Invest in user awareness creation (“know the digital traces you are leaving”) about who, under which conditions, where and when can access private data and what is being done with it

f) Regulations that require applications to adopt maximum privacy settings as default

United Nations report on the promotion and protection of the right to freedom of opinion and expression

Read the full text

Contemporary digital technologies offer Governments, corporations and criminals unprecedented capacity to interfere with the rights to freedom of opinion and expression, and to perform online censorship, mass and targeted surveillance and data collection, digital attacks on civil society and repression force individuals around the world.

Encryption and anonymity, today’s leading vehicles for online security, provide individuals with a means to protect their privacy, empowering them to browse, read, develop and share opinions and information without interference and enabling journalists, civil society organizations, members of ethnic or religious groups, those persecuted because of their sexual orientation or gender identity, activists, scholars, artists and others to exercise the rights to freedom of opinion and expression. Such security may be essential for the exercise of rights, including economic rights, privacy, due process, freedom of peaceful assembly and association, and the right to life and bodily integrity.

Because of their importance, restrictions on encryption and anonymity must be strictly limited. The United Nations rapporteur on the promotion and protection of the right to freedom of opinion and expression therefore recommends the following:

States should adopt policies of non-restriction or comprehensive protection of encryption and anonymity, only adopt restrictions on a case-specific basis and that meet the requirements of legality, necessity, proportionality and legitimacy in objective, require court orders for any specific limitation.
Discussions of encryption and anonymity have all too often focused only on their potential use for criminal purposes in times of terrorism. But emergency situations do not relieve States of the obligation to ensure respect for international human rights law. General debate should highlight the protection that encryption and anonymity provide, especially to the groups most at risk of unlawful interferences.
States should promote strong encryption and anonymity. National laws should recognize that individuals are free to protect the privacy of their digital communications by using encryption technology and tools that allow anonymity online and promote security and privacy online through public education. Legislation and regulations protecting human rights defenders and journalists should also include provisions enabling access and providing support to use the technologies to secure their communications.
States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards. In addition, States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms).
Court-ordered decryption may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals (i.e., not to a mass of people).
States, international organizations, corporations and civil society groups should promote online security and access to encryption and anonymity without discrimination.
Companies, like States, should refrain from blocking or limiting the transmission of encrypted communications and permit anonymous communication.
Corporate actors that supply technology to undermine encryption and anonymity should be especially transparent as to their products and customers.
The use of encryption and anonymity tools and better digital literacy should be encouraged. Since the value of encryption and anonymity tools depends on their widespread adoption; states, civil society organizations and corporations are encouraged to engage in a campaign to bring encryption by design and default to users around the world and, where necessary, to ensure that users at risk be provided the tools to exercise their right to freedom of opinion and expression securely.

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Decalogue for the Protection of Whistleblowers

Xnet — Wed, 28 Oct 2015 17:26:47 +0000

Decalogue for the Protection of Informants and Whistleblowers

0. What is an Whistleblower? The Necessity of a legal definition that is clear and useful to society.

First of all, we should define what a Whistleblower is.

In our experience many people have tried to use XnetLeaks for denouncing corruption as a way to settle personal grudges and denounce neighbours and family members.
Protecting Whistleblowers is a fight to defend the collective work of transparency and whistleblowing, and not a way to create a society of informers, as authoritarian governments have often done.

Accordingly, we should watch out on how politicians, old and new, include this fashionable idea that can lend itself to demagoguery in their discourse or introduce it in their proposals. It can be transformed into a tool used to attack the opposition or a tool to create armies of fanatical informants at their beck and call.

That being said, at this moment those who sincerely make the decision to bring themselves to denounce cases of corruption and collusion of public powers with financial schemes find themselves in an unacceptable atmosphere of isolation and intimidation.

Relevant legislation exists in other countries, and drawing on this we will outline our proposal.

1. Protection of the Privacy and Anonymity of the Whistleblower

– Effectively protect the privacy and/or anonymity of informants or witnesses as well as, where applicable, that of family or people close to them, including, as the case may be:

– Allowing and facilitating anonymous reports from within institutions or businesses, as well as, in exceptional cases such as large corruption schemes, taking statements of whistleblowers via systems that hide their identities and accepting testimony through technologies that allow for this.

– Guaranteeing the right to private personal communications, investigating ex officio any interference.

– If requested, including the whistleblower and witnesses in the witness protection program and, insofar as is necessary and possible, relocation.

– Completely or partially prohibit, as appropriate, revealing information about their identities or whereabouts.

2. Protection of the Physical Integrity of the Whistleblower

– Incorporate in the legal framework appropriate measures to provide protection, when necessary, against unjust treatment, physical retaliation, or intimidation of whistleblowers, witnesses, or expert witnesses who present testimony.

3. Legal Defence

– Guarantee witnesses and whistleblowers the right to free legal assistance in legal processes that are a result of their condition as whistleblowers: allegations of intimidation, threats, injury, slander…

– Concrete measures to guard against bad legal practice used to slow down the process or increase expenses as a method to wear down the whistleblower psychologically and economically and to punish the whistleblower for their allegations.

4. Labour Rights

– Protect the right to not be fired during the legal process resulting from accusations, declaring the firing invalid in such cases. In the case of retaliation, stability of work should be facilitated and looked out for.

5. Psychological and Medical Attention

– Given the data that attest to the prevalence of stress-related health problems in whistleblowers, guarantee access to psychological and medical attention if the whistleblower considers it necessary.

6. Specific legislation

– The Spanish legal system does not seem to take an interest in cases of allegations of corruption. It is therefore necessary for current legislation to consider specific cases of whistleblowers in order to create a clear definition as noted in point 0 and define retaliation that may result from allegations as specific crimes.
– Impose an administrative guideline of best practices that takes the protection of witnesses and avoiding risk to them into account.

7. Secure Channels for Accusations

– The existence of trustworthy channels for denouncing corruption should be assured.

For this purpose, channels for bringing forward allegations that operate independently of the hierarchy and guarantee safety and anonymity should be established by all government agencies (or private institutions with a certain number of employees)

– Training and assistance will be offered to workers and civil servants who will give information and protection to whistleblowers, and guarantee that the rights of citizens who report irregularities will be respected.

– In particular, enforced methods of protection for civil servants whose work consists of reporting on the legality of public decisions which is in the public interest to protect.

8. Institutional Communication

– Use government institutions to push a campaign to normalise alerts from citizens, not penalize them. As explained in point 0, this does not lead to accusations among equals (which are already addressed in other parts of our legal code). There are already enough systems to control average citizens, what is needed is a solution to the deficiencies and inequality in the administration of justice between citizens and corporations or public offices.

9. Codes of Good Business Practice

– Issue contractually binding codes of good business practice from city councils, regional governments, and the central government. The codes would guide companies, both public and private (above a certain size) and the administration of the State, regional institutions, and municipal councils, including protection for those who make allegations of irregular conduct.

– Businesses with over a certain number of employees will be required to have an anonymous mailbox to receive allegations of abuses and misconduct, and government institutions will need to ensure their use.

10. Compliance with Established International Conventions

– In July 2006, the Spanish leadership ratifies the United Nations Convention against Corruption, also drafted and signed by the State of New York on October 10th, 2003.

– Guarantee immediately the measures against corruption and for protection of whistleblowers and witnesses that were achieved by signing this convention.

RELEVANT LINKS:

How we fight corruption: User’s Manual for Citizens
https://xnet-x.net/en/fight-against-corruption-guide/

UN Convention against Corruption
https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf

ADHESIONS

Xnet – https://xnet-x.net
15MpaRato – https://15mparato.wordpress.com
David Fernández – @HiginiaRoig
Grup Contra la Corrupció a Catalunya – https://xnet-x.net/grupo-anticorrupcion-catalunya
Ana Garrido
Fernando Urruticoechea
Acción Cívica – http://accion-civica.org/
Audita Sanidad – http://auditasanidad.org/
Kontuz – http://www.kontuz.org/
Encarni Cortés
Raúl Burillo
Gestha – http://www.gestha.es/
Asufin – http://asufin.com
Pau Monserrat

The post Decalogue for the Protection of Whistleblowers appeared first on P2P Foundation.

Freedom of Expression vs Access to Information

Xnet — Fri, 23 Oct 2015 16:41:31 +0000

Freedom of expression is the right to not suffer retaliation for what is said or published but it does not give us the right to force anyone to listen, publish or disseminate what we say.

The perverse effects that private monopolies like Twitter, Facebook or Google are having on the global conversation and the right to information must not framed within the classic debate of freedom of expression but on the new debate of about the access to information, encompassing the ongoing transition of our societies form communication control based on expression to one based on attention.

While it is arguably that intermediaries should be able to retain flexibility to choose what content they do and do not wish to host, this flexibility cannot be granted to private monopolies that currently host global conversations acting as public agoras. Instead, they have to be controlled and regulated to ensure their respect for freedom of expression and diversity.

In the long term, we must move towards the creation of distributed information and global conversation spaces that can be managed as common goods, with public support and resources if needed, instead of having to rely on private monopolies.

The post Freedom of Expression vs Access to Information appeared first on P2P Foundation.

EU trade secrets directive threat to free speech, health, environment and worker mobility

Xnet — Thu, 23 Apr 2015 08:22:59 +0000

Multi-sectoral civil society coalition calls for greater protections for
consumers, journalists, whistleblowers, researchers and workers

We strongly oppose the hasty push by the European Commission and Council for a new European Union (EU) directive on trade secrets because it contains:

An unreasonably broad definition of “trade secrets” that enables almost anything within a company to be deemed as such;
Far-reaching legal remedies for companies whose “trade secrets” have been “unlawfully acquired, used or disclosed”, including provisional and precautionary measures, damages and secrecy rights throughout the judicial process; and
Inadequate safeguards that will not ensure that EU consumers, journalists, whistleblowers, researchers and workers have reliable access to important data that is in the public interest.

The proposal must be amended to ensure that only information acquired, disclosed or used by third parties with intention of commercial gain is protected under the directive.

Specifically, we share great concern that under the draft directive:

The right to freedom of expression and information could be seriously harmed because the proposed directive does not guarantee the protection of journalists and whistleblowers. Under the proposed directive, journalists and whistleblowers must show that “…the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest”. Unfortunately, determining whether disclosure was necessary can often only be evaluated afterwards. In addition, the limitation of the right to disclose and use trade secrets to reveal “wrongdoing”, “misconduct” or to protect a “legitimate interest” would allow for sanctions to be applied even when the information ought to be in the public domain, such as planned redundancies and detrimental effects on health and the environment. The proposed directive should be amended to exempt information acquired, used or disclosed in the public interest.

The mobility of EU workers could be undermined (on June 16th, 2015, MEPs precised that workers’ experience and skills “honestly” acquired by employees shall not be considered a trade secret http://corporateeurope.org/power-lobbies/2015/06/first-key-mep-vote-eu-trade-secrets-directive-improved-language-problem-solved). The proposed directive poses a danger of lock-in effects for workers. It could create situations where an employee will avoid jobs in the same field as his/her former employer, rather than risking not being able to use his/her own skills and competences, and being liable for damages. This inhibits career development, as well as professional and geographical mobility in the labour market.
Companies in the health, environment and food safety fields might use the directive to refuse compliance with transparency policies, even when the public interest is at stake. The proposed directive should be amended to ensure that (1) it does not cover information that must, by law (including international law), be disclosed by public authorities under public access to information legislation and (2) it excludes regulatory data of public interest that is needed for public scrutiny of regulatory authorities’ activities.

Health: Pharmaceutical companies argue that all aspects of clinical development should be

considered a trade secret; however, access to biomedical research data by regulatory authorities, researchers, doctors and patients—particularly data on drug efficacy and adverse drug reactions—is critical to protecting patient safety and conducting further research and independent analyses. This information also prevents scarce public resources from being spent on therapies that are no better than existing treatments, do not work, or do more harm than good. Moreover, disclosure of pharmaceutical research is needed to avoid unethical repetition of clinical trials on people. The proposed directive should not obstruct recent EU developments to increase sharing and transparency of this data.

Environment: The directive must be amended to comply with the EU’s international obligations under the United Nations Aarhus Convention, which prevents public authorities from protecting the secrecy of information on emissions into the environment and requires active dissemination of information enabling consumers to make informed environmental choices. Therefore, the definition of “trade secret” should be amended to remove information on emissions from the scope of the proposed directive and companies should be prevented from using the directive to refuse disclosure of information on hazardous products, such as chemicals in plastics, clothing, cleaning products, and other activities that can cause severe damage to the environment and human health, including the dumping of chemicals and fracking fluids.

Food safety: Under EU law, all food products, genetically modified organisms and pesticides are assessed by the European Food Safety Authority (EFSA). EFSA assesses the risks associated with these products based on studies performed by manufacturers themselves. Scientific scrutiny of the EFSA’s assessments is only possible with complete access to these studies; therefore, this data must be removed from the scope of the directive.

Despite the Commission’s desire for a “magic bullet” that will keep Europe in the innovation game, without amendment, the proposed directive may make it more difficult for the EU to engage in open and collaborative forms of research. In fact, there is a risk that the measures and remedies provided in this directive will undermine legitimate competition and even facilitate anti-competitive behaviour. Unsurprisingly, the text is strongly supported by multinational companies.

Industry coalitions in the EU and the United States (US) are lobbying, through a unified Trade Secrets Coalition, for the adoption of trade secret protection. In the US, two new bills are pending before Congress. If passed, these texts would allow trade secret protection to be included in the Transatlantic Trade and Investment Partnership (TTIP)—something that will be incredibly difficult to repeal in the future through democratic processes. Given that TTIP is expected to set a new global standard, its potential inclusion of trade secret protection could have devastating consequences.

We urge the Council and the European Parliament to amend the directive by limiting the definition of what constitutes a trade secret and strengthening safeguards and exceptions to ensure that data in the public interest cannot be protected as trade secrets. The right to freely use and disseminate information should be the rule, and trade secret protection the exception.

Signatories

HEALTH

Health Action International www.haieurope.org

Medicines in Europe Forum http://english.prescrire.org/en/

Commons Network www.commonsnetwork.eu

Public Citizen, US www.citizen.org/access

European Public Health Alliance www.epha.org

Knowledge Ecology International (KEI) Europe www.keieurope.org

Cochrane Collaboration – Nordic Cochrane Centre www.cochrane.org

International Society of Drug Bulletins (ISDB) www.isdbweb.org

Association Internationale de la Mutualité (AIM) www.aim-mutual.org.

Berne Declaration www.bernedeclaration.ch

Health Projects for Latvia www.veselibasprojekti.lv/?lng=en

HEAL (Health & Environment Alliance) www.env-health.org

WEMOS www.wemos.nl

FOOD SAFETY

Corporate Europe Observatory (CEO) www.corporateeurope.org

GeneWatch UK www.genewatch.org

EFFAT (European Federation of Food, Agriculture, Tourism Trade Unions) www.effat.org

ENVIRONMENT

Client Earth www.clientearth.org

Center for International Environmental Law (CIEL) www.ciel.org

Greenpeace (EU unit) www.greenpeace.eu

EEB (the European Environmental Bureau) www.eeb.org

NatureFriends International (NFI) www.nf-int.org

Commons Network www.commonsnetwork.eu

DEVELOPMENT

Centre national de coopération au développement (CNCD-11.11.11”) www.cncd.be

FREEDOM OF SPEECH & WHISTLEBLOWERS

French journalists collective “Informer n’est pas un délit” http://informernestpasundelit.tumblr.com/

La Quadrature du Net www.laquadrature.net

Corporate Europe Observatory (CEO) www.corporateeurope.org

Article 19 www.article19.org

Electronic Frontier Foundation (EFF) https://eff.org

EDRi (European Digital Rights) https://edri.org/

Xnet https://xnet-x.net/

The Foundation for Information Policy Research http://www.fipr.org/

Vrijschrift https://www.vrijschrift.org/serendipity/

CEE Bankwatch Network http://bankwatch.org/

Transparency International France www.transparency-france.org

Fondation Sciences Citoyennes http://sciencescitoyennes.org/

WORKER MOBILITY

EUROCADRES (Council of European Professional and Managerial Staff) www.eurocadres.eu

EPSU (European Federation of Public Service Unions) www.epsu.org

ETUC (European Trade Union Confederation) http://www.etuc.org/

CFDT CADRES (CFDT for Professional and Managerial Staff) www.cadrescfdt.fr/

Akademikerna (The Danish Confederation of Professional Associations) www.ac.dk

AGENQUADRI (General Association of Managers, Professionals and High-Skilled Workers) www.agenquadri.it

Saco www.saco.se/en/

UNI Europa www.uni-europa.org

Akava (Confederation of Unions for Professional and Managerial Staff in Finland) www.akava.fi

Unionen www.unionen.se

TCO (Swedish Confederation of Professional Employees) www.tco.se

PDF and contacts: https://xnet-x.net/docs/statement-on-trade-secrets-directive.pdf

Note for the understanding:
Besides our campaign against the directive of Trade Secrets, composed by civil society organizations from various sectors, shortly after has emerged another campaign promoted by European unions, we are in touch with them since our colleague Falciani supports it.

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