When the European Union first passed the Data Retention Directive in 2006, despite a hard-fought campaign by European activists, it seemed like the beginning of the end for Internet privacy. The directive sought to require telecommunications service providers operating in Europe to retain a detailed history of each of their customers' activity for up to 2 years for possible use by law enforcement; including phone calls made and emails sent and received.

The response from European citizens was swift and outraged. Under the banner of Freedom Not Fear, mass protests were held in cities all across Europe and beyond. The charge was led by the German Working Group on Data Retention (AK Vorrat), which in 2007 filed a class-action lawsuit of nearly 35,000 people challenging the German law.

The suit's complaints were mostly upheld by last week's German Constitutional Court decision. The court held that the blanket data retention mandated by the EU directive violated Article 10 of the German Constitution, which guarantees the basic right to private life and correspondence. The Court said that an infrastructure of exploratory surveillance results in an exceptional intensity of interference with human rights, which must be proportionately protected with appropriate safeguards. It also significantly narrowed the options for similar EU retention laws on other types of data. The court ordered the immediate deletion of all the data stored since the law went into effect in 2008 and ordered the suspension of data collection until a revised national law is proposed.

However, the court did choose to leave many important questions about the EU directive unanswered. In highlighting the need for increased safeguards, the court failed to recognize that the storage of data itself is what violates human rights. For instance, a survey of German citizens in 2008 found that 1 in 2 people would not have conversations with counselors or therapists by phone or email because of their concern about data retention.

A bolder stance was taken in October 2009 by the Romanian Constitutional Court, which ruled that the EU directive fundamentally violated Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private life and correspondence. Data retention itself, the court wrote, is "likely to overturn the presumption of innocence and to transform a priori all users of electronic communication services or public communication networks into people suspected of committing terrorism crimes or other serious crimes." As a result, all citizens would become "permanent subjects to this intrusion into their exercise of their private rights to correspondence and freedom of expression."

The rulings in Romania and now Germany set the stage for an imminent series of decisions on the status of national data retention laws across Europe. The recent Bulgarian vote on data retention legislation met with sharp criticism and protests. Petitions against the Belgian data retention law are available in both French and Flemish. The constitutional challenge against the Retention of Data Bill brought by Digital Rights Ireland may be referred to the European Court of Human Rights. In the meantime, despite the fact that the European Commission won its lawsuit against the government of Sweden for failing to implement the directive, the minimal penalty turns out to be worth the political risk.

In order to overturn a directive, the European Commission, Parliament, and Council have to agree. Viviane Reding, the incoming European Commissioner for Justice, Fundamental Rights, and Citizenship, declared at her confirmation hearings her dedication to defending the right to privacy. The members of the European Parliament, inaugurating their new term, flexed their political muscle when they recently rejected assenting to the SWIFT agreement that would have enabled the wholesale transfer of Europeans' financial data to the US. The European Council, representing the ministries of the individual Member States, will respond to the political climate in their home countries.

All in all, the threats to privacy and free speech posed by the Data Retention Directive are on their way to being nullified. In Germany, AK Vorrat launched its campaign against the new law being devised and set its sights on ending data retention on the European level. They will need the help of citizens across Europe to raise awareness and speak out for their rights on national levels.

Freedom Not Fear is planning another series of protests later this year – stay tuned to Deeplinks or sign up for FNF's mailing list to find out what is being planned near you.

When it comes to promoting a free and open environment for online speech, Professor Weiler may not be on the same level as Google, convicted in an Italian court for displaying a user-generated video, but he is nonetheless being targeted for hosting another's speech, and his case could have a serious impact on sharing of academic expression online. If Professor Weiler can be held criminally liable in a foreign country for publishing this book review, I foresee a serious chilling effect on the willingness of others to provide an online platform for this important form of academic discourse going forward. As a precedent, it would put the editor in an intolerable position of choosing between censoring his/her colleague's work based on nothing more than the complaining party's say-so and facing expensive, liberty-threatening criminal proceedings in a distant locale.

It's also a classic example of so-called "libel tourism," which some states have moved to address.  U.S. law provides robust protections in libel cases that other nations, including France, generally do not. I'd love input from readers in the comments about the specifics of French libel law, but the U.S. protections that come to mind in this scenario include protection for statements of pure opinion and the requirements of proving the statements were false and showing actual malice. Putting aside the First Amendment's protections, under U.S. law the whole case likely would be thrown out because of Section 230 of the Communications Decency Act. Whether France recognizes any of these protections, there appears to be no meaningful mechanism for disposing of cases at an early stage in the proceedings based on the legal merits (not terribly surprising because the sharp common law distinction between pre-trial and trial is not recognized in many civil law jurisdictions). It's hard not to posit that the complaining party chose to file a criminal complaint in France, where neither Professor Weiler nor she lives or works, in order to exert the maximum amount of pressure on him to take down the critical review. 

Background

Here's the story (from our database entry, France v. Weiler): 

In September 2008, New York University law professor Joseph Weiler was summoned to appear before a French Examining Judge in connection with a complaint of alleged criminal libel made by Dr. Karin Calvo-Goller, a senior lecturer at the Academic Centre of Law and Business in Israel.  Professor Weiler will appear for trial before the Paris Criminal Tribunal in June 2010.

Professor Weiler is the editor in chief of the European Journal of International Law and the affiliated book review sites, Global Law Books and European Law Books. In 2007, Global Law Books published a book review written by Professor Thomas Weigend, Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne.  Professor Weigend reviewed Dr. Calvo-Goller's book, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents, and criticized it as an "exercise in rehashing the existing legal set-up" and "unproductive," among other things. 

In June 2007, Dr. Calvo-Goller wrote to Professor Weiler in his capacity as editor of Global Law Books, requesting that he remove Professor Weigend's review from the site. Her letter detailed several perceived factual inaccuracies in the review, claiming that it went "beyond the expression of an opinion, fair comment and criticism" and contained "false factual statements which the author of the review, a professor of criminal law, could not reasonably believe to be true." It also claimed that "[t]he review is an indirect insult to former ICTY and actual ICC officials, defense counsel of the ICTY and ICTR, who took the time to read and comment on previous drafts of the book."

In a response to Dr. Calvo-Goller, Professor Weiler declined to remove the review, expressing his sympathy for Dr. Calvo-Goller's hurt feelings, but also pointing out the unorthodox character of the request:

 I have seen all manner of reviews and from time to time received letters from unhappy authors. In these long years of experience I have never received a letter such as yours both in content and tone. It departs from what in my view are considered common conventions of academic discourse and academic publication.

. . . 

It is a very extreme request to ask for a critical review to be removed. I could imagine acceding to such a request only in most egregious circumstances of, say, bad faith, conflict of interest etc. In reviewing a complaint such as yours the task of the editor is not to engage in a de novo review, but to assess whether the review falls into one of those extreme categories of egregious unreasonableness.

After noting Professor Weigend's distinguished professional credentials and addressing each specific factual/substantive contention in turn, Professor Weiler concluded that removing the review was not justified:

My conclusion from this preliminary enquiry is that the heavy burden needed in my eyes to suppress a book review has not been met. In fact not even a prima facie case has been made. I found nothing to impugn the integrity or professionalism of the reviewer and, independently of whether or not I share his opinions or conclusions on your book, I must decline your request to suppress the book review by removing it from the site. 

Professor Weiler also explained that he would forward Dr. Calvo-Goller's comments to Professor Weigend and would consider a request by Professor Weigend, if any, to change the review. Professor Weiler also pointed out the comment feature on the website and suggested that it would be "perfectly in order for you to write a comment which, after editorial approval, could be posted on the website and seen by anyone who reads the review."

Professor Weigend declined to make any changes, Dr. Calvo-Goller posted no comment, and Professor Weiler stood by Professor Weigend's decision. And that was that until Professor Weiler ended up before the French Examining Judge, who told Weiler that her role was purely formal and that the merits could only be addressed by the Criminal Court itself at trial, set for June 25, 2010.

Professor Weiler's Editorial

Professor Weiler published a thoughtful editorial on the case in the most recent edition of EJIL, entitled "Book Reviewing and Academic Freedom," which reproduces his letters back-and-forth with Dr. Calvo-Goller in their entirety and gives his perspective on the matter. Displaying surprisingly little indignation and speaking with great eloquence, Weiler sums up well the threat to academic freedom this case poses:

Consequently, I am saddened by the actions of Dr Calvo-Goller. I believe that in the circumstances of this affair, her action of instigating a criminal libel case against me for refusing to remove the book review is misguided and inconsistent with the most fundamental practices of all academic institutions with which I am familiar and with traditional academic discourse. It is not for me to criticize the French legal system under which I will stand criminal trial, but I would simply emphasize that the fact of being referred to trial before a criminal court does not, unlike many other systems, carry the implication that any public authority in France has concluded that there is any substantive merit in the complaint brought by Dr Calvo-Goller. Rather, the referral by the state follows automatically from the Criminal Complaint filed by Dr Calvo-Goller.

I very much hope that we will prevail before the Criminal Tribunal of Paris. Any other result will deal a heavy blow to academic freedom and change the landscape of book reviewing in scholarly journals, especially when reviews have a cyber presence as is so common today. Even if we do, the very fact of being subject to a criminal process by French public authorities and having to undergo a criminal trial in these circumstances coupled with the heavy financial burden of defending such a case – expenses which are in large part not recoverable even if acquitted constitutes a serious chilling effect on editorial discretion, freedom of speech and the very important academic institution of book reviewing. When the dust settles it may well be worth raising the question whether the French law which so easily allows a private complaint to become a public prosecution well balances the various competing interests in cases such as this. We would hope to hear from our French colleagues and readers.

The Jurisdictional Wrinkle

What makes the case all the more disturbing is that, as Gilles Cuniberti of Conflict of Laws.net points out, France's stake in the whole affair is rather limited. Professor Weiler lives/works in New York, Professor Weigend  in Germany, and Dr. Calvo-Goller in Israel (though she was born and studied in France and may be a French national). The book review was published in English for an English-speaking audience.

French law governs offences committed wholly or partially in France, so, according to Cuniberti, the issue is "whether a website accessible in France entails that alleged libel on the site is committed in France for the sole reason that the site is accessible there."  Seems like a pretty thin reed to hang the whole matter on, and Cuniberti writes that recent French case law suggests the answer may be "no," but nothing is impossible in the fantasy land of international Internet jurisdiction. And a tenuous connection is nothing new in libel tourism cases.

An Appeal for Assistance

Now, we finally get to the important part.  In his editorial, Professor Weiler appeals to readers for assistance in advance of the trial. I encourage CMLP readers with an interest in academic expression to write in support of Professor Weiler's cause. Here's what he has in mind:

a. You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com  Kindly write, if possible, on a letterhead indicating your affiliation and attach such letters to the email. Such letters may be printed and presented eventually to the Court. Please do not write directly to Dr Calvo-Goller, or otherwise harass or interfere in any way whatsoever with her right to seek remedies available to her under French law.

b. It would be particularly helpful to have letters from other Editors and Book Review Editors of legal and non-legal academic Journals concerned by these events. Kindly pass on this Editorial to any such Editor with whom you are familiar and encourage him or her to communicate their reaction to the same email address. It would be especially helpful to receive such letters from Editors of French academic journals and from French academic authors, scholars and intellectuals.

c. Finally, it will be helpful if you can send us scanned or digital copies of book reviews (make sure to include a precise bibliographical reference) which are as critical or more so than the book review written by Professor Weigend – so as to illustrate that his review is mainstream and unexceptional. You may use the same email address EJIL.academicfreedom@Gmail.com

The new provisions give a blanket license for the export of "certain services and software incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging, provided that such services are publicly available at no cost to the user."

This clarification is just what EFF called for last June, and will go a long way to allay concerns that online service providers based in the U.S. cannot offer their services in those countries. Previously, despite the well-known freedom-enhancing capabilities of services like Twitter and Facebook in repressive regimes like Iran, it was unclear whether those companies could even offer their services there without falling foul of the United State's broad prohibition on the export of goods and services to these regimes.

This was not a hypothetical concern: other services that were useful for dissidents to communicate and organize, like Microsoft, and Google's instant messaging clients had previously been blocked from being used in these very countries -- not by the repressive states, but by companies themselves, cautious of violating sanctions.

While the change in the letter of the law is clearly positive, perhaps just as important is the signal this sends about the administration's new guiding policy on global Internet freedom.

Previously, cautious companies, afraid of running afoul of OFAC, have frequently forbidden or blocked all use in sanctioned countries, even when the letter of the law did not require such draconian steps. You can see this institutionally paranoid language, and its inevitable results, in Bluehost's terms of service, which pre-emptively prohibits all citizens of sanctioned countries from even applying to use their hosting facilities (a policy which lead them to shamefully throwing innocent Zimbabwean activists off their service last year).

Now we are moving (slowly) to a new, and better default, where technologists and their lawyers might assume that free Internet services that facilitate free expression and association need not be blocked pre-emptively for anyone, anywhere.

The Obama administration has shown with these changes that it would prefer to move toward that end. Have we got there yet? Is it what export law now says?

While we wait for export regulation experts to sweat the details, the answer is still far too hazy for comfort.  While the State and Treasury departments have fixed much that was wrong with Iranian, Cuban and Sudanese sanctions, there are still regulations on, for instance, Zimbabwe, Syria and North Korea for techies and their lawyers to worry about, and those sanctions still inhibit making software generally available. We also would like to see more clarity about collaborative software development locations, like Sourceforge.

We hope that this administration backs up these first steps with a continuing review of export rules, and pro-actively works to reassure Internet companies that they are free to build an open Internet for everyone, without expecting a knock on the door from their own government.

If mental gymnastics were an Olympic event, the United States would be guaranteed gold. Our prowess at Doublethink is indisputable. The latest example of our mental contortion: (A) Internet Freedom is essential for the protection of basic human rights and (B) Access to the Internet is not a right and may be taken away without due process. At the same time as the United States is trying to increase Internet freedom in Iran, the United States Trade Representative is negotiating a copyright treaty (in secret) that will reduce Internet access both at home and abroad. This will not end well.

Background: Good news. The United States has realized that social networking and Internet access undermine oppressive regimes and encourage democratic ideals. The evidence of this realization? The U.S. Department of the Treasury's Office of Foreign Assets Control amended various regulations relating to trade with Iran, Sudan, and Cuba.  The amendments

authoriz[e] the exportation of certain personal Internet-based communications services – such as instant messaging, chat and email, and social networking – to Iran, Sudan and Cuba. The amendments also permit the exportation of related software to Iran and Sudan.

"Consistent with the Administration's deep commitment to the universal rights of all the world's citizens, the issuance of these general licenses will make it easier for individuals in Iran, Sudan and Cuba to use the Internet to communicate with each other and with the outside world.  Today's actions will enable Iranian, Sudanese and Cuban citizens to exercise their most basic rights," said Deputy Treasury Secretary Neal Wolin.

. . .

Today's action follows up on the December 2009 notification submitted to Congress by the State Department of a national interest waiver under the Iran Iraq Arms Non-Proliferation Act to authorize the exportation of free mass market software to Iran necessary for the exchange of personal communications and/or sharing of information over the Internet.” (source)

Great. The United States government wants to increase Internet freedom because maybe it will weaken the Iranian regime. Iranian bloggers have played an enormous role in the reform movement. Ok, makes sense. But this is the same U.S. government that is secretly negotiating the Anti-Counterfeit Trade Agreement, which may decrease Internet access in the name of protecting copyright.

Now the supporters of ACTA have insisted that the agreement would not require countries to adopt a three-strikes Internet ban for users who had been accused of copyright infringement. But leaked ACTA documents suggest that, in order for ISPs to retain their safe harbor status under the proposed system, they must “adopt[] and reasonably implement[] a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights . . . .”  And the ACTA draft provides only one exemplar of a reasonable policy.  "An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers."

So yes, ACTA does not mandate that ISPs adopt a three-strikes policy. Instead, the Agreement merely says that ISPs will be open to liability if they do not adopt such a policy or an ill-defined alternative policy. And I’m sure ISPs would love to carry that extra liability instead of arbitrarily cutting off consumers. Brilliant. Our USTR has outsourced the drafting of draconian Internet policies to individual ISPs. I can see the confusing fine print now: “For your protection and for the protection of all our users, we reserve the right to cut your Internet access if you are merely accused of copyright infringement. An early termination fee will be added to your last bill.”

Perhaps the US government does not understand the conflict between these two positions. Let me take a crack at this Gordian Knot. There can be no right to the Internet if a person’s access to the Internet can be destroyed on such a flimsy pretense. Under the ACTA theory of the world, Iran would be justified in blocking all peer-to-peer (P2P) sharing or even social networking, so long as the regime claimed that these digital tools encouraged copyright infringement. The same could hold for Twitter: it could be used for sharing copyrighted lyrics. (Sorry Iran, Japan's JASRAC got to that logic gem first.)

The misuse of DMCA takedown notices is common knowledge. Does the United States want to craft a universally recognized legal tool for Internet censorship? “We cut [insert name of humanitarian reformer here]’s access to the Internet because she was accused of downloading SpiderMan 3.”

Perhaps if ACTA actually engaged the democratic process (ACTA is an executive agreement and thus does not require Congress' stamp) this parade of horribles could be avoided.  Let's follow Europe's lead, vote down ACTA, and depart from the theater of the absurd. Till then, we will be left to guess which view of the Internet currently occupies our confused consciousness:  Do we still support the Persian Version?

(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He thinks prohibition was ill considered but loves the war on drugs.)