Another update on the e-Privacy Regulation

A lot has been happening on the e-Privacy Regulation. Mostly it has been good news so I have not been issuing further  clarion calls for more lobbying. I hope I have not been naïve but I think our joint work has been helping get things on the right track.

Here is a link to the latest text. It was considered at a meeting yesterday.

If you look at the new Article 6 (1)(d) (on page 52 of the pdf), you will see a specific carve out has now been created to allow for measures to detect  “child pornography” although there is a bit immediately following it, the status of which I am not  entirely clear about. It  says the service provider may not ” analyze  the actual communications content and shall not store any copies of that content”.

I think I know what they are trying to get at. The drafters, rightly, don’t want the deployment of PhotoDNA or similar tools to be used as a way, intentionally or otherwise, of harvesting and keeping additional or new  commercially valuable data about the end user. Arguably that is implied by other, overriding, privacy laws, although I guess there is no harm repeating it.

However, it is impossible to use PhotoDNA or similar hash matching systems without already having a copy of the hash in your possession and in many countries e.g. the USA, it is  also a legal requirement to report illegal content to the appropriate authorities. That implies an obligation to have at least momentary possession or storage of it.

I know a hash, technically, is not itself illegal content, but it would nevertheless be good to remove any possible ambiguities.

The Recital will also need tidying up to stay consistent with the new wording of the Articles.  The Articles represent the law, whereas the Recitals do not. Even so it is better for them to be fully aligned.

So I think we are moving forward although it never does any harm to let your Government’s representative know you are continuing to follow the file.

Watch this space.

About John Carr

John Carr is one of the world's leading authorities on children's and young people's use of digital technologies. He is Senior Technical Adviser to Bangkok-based global NGO ECPAT International, Technical Adviser to the European NGO Alliance for Child Safety Online, which is administered by Save the Children Italy and an Advisory Council Member of Beyond Borders (Canada). Amongst other things John is or has been an Adviser to the United Nations, ITU, the European Union, the Council of Europe and European Union Agency for Network and Information Security and is a former Board Member of the UK Council for Child Internet Safety. He is Secretary of the UK's Children's Charities' Coalition on Internet Safety. John has advised many of the world's largest internet companies on online child safety. In June, 2012, John was appointed a Visiting Senior Fellow at the London School of Economics and Political Science. More: http://johncarrcv.blogspot.com
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