Open letter to the MEPs: don’t haggle over the right to privacy

Paris 13 February 2017 — Tonight the Members of the European Parliament (MEPs) of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) will have to decide which political group will be in charge of the draft report and thus to supervise the negotiations over the future ePrivacy regulation concerning respect for private life and the protection of personal data in electronic communications. The choice of political group, and therefore of the rapporteur, is often neglected in following up a legislative dossier, and yet it has substantial implications for the negotiations to come, because this person will set the general orientation and have a preponderant weight in these negociations.

La Quadrature du Net wishes to remind Members of the LIBE Committee, that the ePrivacy rule’s rapporteur should be aware of the text’s importance so as to respond to the expectations of millions of Europeans.

Dear Members of the LIBE Committee,

The concept of “confidentiality of electronic communication” may seem abstract, yet it is crucial for each of us because it guarantees that only the participants in the communication know its contents and information about the communication, whether it be a call, an SMS, e-mail, an instant message, or through a social network. The ePrivacy rule seeks to guarantee that all the messages we send and receive cannot be intercepted, eavesdropped, surveilled or recorded.

In the context of widespread mass surveillance — domestic and international — and how individuals are tracked by companies, the future rule is of overriding importance. Europeans have responded powerfully to the many disclosures of state surveillance since the Snowden episode in 2013, which have come to general awareness. The Eurobarometer of ePrivacy published by the European Commission in December 2016 states that “More than nine in ten respondents say it is important that personal information (such as their pictures, contact lists, etc.) on their computer, smartphone or tablet can only be accessed with their permission, and that it is important that the confidentiality of their e-mails and online instant messaging is guaranteed (both 92%).” That also goes for surveillance and tracking by private companies, which are less and less accepted by European internauts. According to the same Eurobarometer: “A large majority of respondents find it unacceptable to have their online activities monitored, to have companies share information about them or to have to pay not to be monitored”.

The use of tools that assure some confidentiality in our communication or some anonymity on line has grown, and a great many people are using them. It is time for European political decision-makers to act on this change in society and enact suitable legislation. If the private members of the sector don’t seize the current opportunity to line up with society’s needs, this new legislation will force them to open their eyes.

Civil society organizations have turned their eyes today toward the European Parliament, and more specifically toward you, members of the LIBE Commission. The choice of which political group to put in charge of writing the report, from which the choice of the rapporteur will follow, will be critical for the text’s future, and you can’t take that lightly. The assignment of the ePrivacy rule shouldn’t be bartered irrationally. On the contrary, it should be a subject of serious reflection, and should be based on certain criteria in order to assure balanced negotiations.

Therefore La Quadrature du Net calls on you to choose a rapporteur who

• has some knowledge of the subject as well as the political, societal, and technical matters;
• recognizes Europeans’ current aspiration to greater confidentiality in electronic communication and their private lives;
• understands that the electronic communication sector needs special rules to protect them where what their content could disclose extremely sensitive personal information, and where the use is constantly growing;
• is convinced the general data protection regulation adopted last April, and the coming ePrivacy regulation, can represent competitive advantages for European companies;
• understands the decisions of European courts concerning metadata. ¹Point 99 of the CJEU’s decision on 21 December 2016 : Taken all together, these data can be used to draw very precise conclusions about the private life of persons whose data have been kept, such as the conduct of their daily lives, the places they stay permanently or temporarily, where they go, what they do, their social relationships and the social milieux they frequent (see, by analogy, the concerns of directive 2006/24, Digital Rights order, point 27). In particular, these data make it possible to establish, along with the General Counsel’s report on points 253, 254, and 257-259 of its conclusions, the profiles of persons concerned, information just as sensitive — with respect to law about the respect for privacy — as the content of communications itself; and agrees about their personal nature and thus their specific need for protection.

These demands are not ideological, they are are only the bare minimum needed to begin on a basis coherent with the general data protection regulation which you adopted by a very large majority last year. They are similarly the conditions needed so as not to come directly and frontally into conflict with the interests and expectations of millions of Europeans.

It does not matter which political side the future rapporteur will be from, as the right to respect for one’s private life and for one’s communications has no political color. Nevertheless, it would be neither reasonable nor acceptable to entrust with the task of overseeing this text a person who considers that these principles are ancillary or already sufficiently framed.

La Quadrature du Net remains attentive to the process of negotiation that will lead to choosing the rapporteur of the future ePrivacy regulation, and calls on you to take these few basic criteria into account during your discussions.