https://www.accessnow.org:443/the-many-faces-of-digital-in-the-new-european-commission/

Commissioners hearings: The many faces of Digital in the new European Commission

 

 

The new commissioners for Digital

On October 22nd, twenty-seven new European Commissioners selected by President-Elect Jean-Claude Juncker are set to be confirmed by the European Parliament. In the  5 years ahead, a certain number of these incoming Commissioners will have a huge influence on digital rights and security issues that impact the lives of European citizens and, indirectly, the rest of the world.

It’s important to note that Juncker has already announced some big changes in how the Commission will be run.  First, these new commissioners have had to give up their absolute right to veto any proposition made by their colleagues.  Veto privileges are now afforded only to the seven Vice-Presidents.  Second, in the areas of concern to our membership, the Digital Agenda portfolio has been partitioned: the role currently occupied by Neelie Kroes will now be split between a Digital Economy and Society Commissioner and a Digital Single Market Vice-President.  Third, several digital issues will be shared between commissioners from the offices of Migration and Human Rights Competition, and Justice. The latter two changes prompted MEP Claude Moraes to worry during on a hearing that this incoming commission likely had “too many cooks” overseeing digital affairs.

To help introduce you to the new faces of Digital in Europe, and the issues they will be dealing with during their term, we’ve produced this primer which outlines their roles, responsibilities, and the… baggage they bring with them.

 

Andrus Ansip, Vice-President Digital Single Market

Mr. Ansip, who has the most power over digital security matters amongst the group, has been given a very specific mandate from President-elect Juncker: “[The] objective is to make Europe a world leader in information and communication technology, with all the tools to succeed in the global digital economy and society…To do so, we will need to break down national silos in telecoms regulation, in copyright and data protection legislation, and in the management of radio waves.”

Mr. Ansip is a former Estonian prime minister, and has been very clear on where he stands: “Data protection will be an important cornerstone of the Digital Internal Market” and that it is essential to “protect everyone’s privacy.”

In his hearings, he touched on many issues, but focused on a few subjects of particular relevance to our work:  Safe Harbor, Network Neutrality, and Anti-Trust.

In regards to the Safe Harbor agreement, which has constantly been at the center of European debate since the Snowden revelations and is soon to be subject to scrutiny by the  European Court of Justice analyzing its compatibility with the European charter of fundamental rights, Ansip says he is fully prepared to consider suspending the agreement.

He considers network neutrality to be a priority, and was clear that he intends to reinforce the equal handling of internet traffic that underlies the principle that “nobody has the right to exploit a dominant market position.”

Finally, the new European digital single market commissioner, while not expressly mentioning Google, said “there should be no abuse of dominant positions,” referring to the allegations the European Commission has made in the past on how Google handling its own search results to favor its own services and products.

He was confirmed directly at the end of his hearing, and proceeded to hold an online twitter question & answer preceding the final European parliament vote on the 22nd of October. His strong performance at the hearing has led to him being dubbed the “real digital commissioner,” though as always, actions will speak louder than words.

Access is encouraged by Ansip’s transparency and statements thusfar, including his willingness to create a so-called charter of Internet rights, a legally binding document that would outline people’s digital freedoms following the Brazilian example of the Brazilian Civil Rights Framework for the Internet. However, during his questioning about network neutrality, Ansip referred to the proposal on a Telecoms Single Market as a Directive – not a Regulation. Regulations are a legal instrument enabling full harmonisation in the EU, and is the format prefered to enshrine a clear set of binding net neutrality rules across the 28 members states.

 

Gunther Oettinger, Commissioner-designate of Digital Economy & Society

The Commissioner for Digital Economy & Society will be responsible for media and information issues such as telecoms and IT.  Oettinger will have primary authority for overseeing issues of data protection, network neutrality, copyright reform, and the right to be forgotten.

Gunther Oettinger is currently finishing his term as commissioner for Energy, and had a regional political career in Baden-Württemberg.  He has a limited background in digital rights which, unfortunately, was made clear during his confirmation hearings.

On the issue of net neutrality, Oettinger first referenced the Parliament’s strong position taken with the Telecoms Single Market proposal voted on by the MEPs in April, which stated that the net should be neutral “for all users.”  He then pivoted immediately, vaguely relating that there should be exceptions made for the “public interest” and so that businesses can “mak[e] a profit.”

The Telecoms Single Market proposal, which may be voted on by the EU Council as quickly as the end of the year, was brought up repeatedly during his hearing – but Mr. Oettinger was unable to provide a clear statement of his position.

Cloud computing security and storage was also a topic discussed – albeit in a disturbing way.  When Mr. Oettinger was asked about #CelebGate, and who he felt was responsible when nude-celebrity photos uploaded to the cloud were hacked, the commissioner-delegate replied that the celebrities were “dumb” and couldn’t expect government protection.  While that answer alone is discouraging, what is truly alarming is that minutes later, he suggested that the Commission start using cloud storage for all of its documentation, even going so far as to praise cloud computing for its financial and environmental efficiency.  We can only hope that someone informs Mr. Oettinger before he begins his term: what he calls dumb for the goose is dumber for the gander.

Last but in no way least is the so-called “Right-to-be-Forgotten” issue, which is an incredibly important topic that Oettinger will be tasked with overseeing. Oettinger was perhaps at his most colorful when addressing this issue, and the questions became quite personal when MEPs asked whether the Commissioner-designate would choose to erase the fact that he had his driving license revoked 10-years prior.  He replied that the removal of personal links to information was a fundamental right – but it should not apply to information in the public interest, as stated in the CJEU ruling. As he is a politician, the public interest exception applies – meaning that his driving history will be googleable for all time.

Oettinger was confirmed as Commissioner by the MEPs directly at the end of his hearing.  Access remains concerned about his appointment, as he illustrated a distinct lack of understanding of the digital issues he is tasked with overseeing.

 

Dimitris Avramopoulos, Commissioner-designate Migration & Home Affairs

Avramopoulos’ portfolio will oversee multiple human rights issues, many overlapping into the digital rights realm – most notably data retention.

Although he acknowledged that the EU-level Directive on Data Retention was unlawful, as was decided by the European Court of Justice in April, he later stated that the same state-level legislations implementing this annulled directive were still valid. This conflicts with a recent legal analysis commissioned by the Greens of the European Parliament, according to which national measures transposing the Data Retention Directive need to be amended. Avramopoulos made reference to the older, still valid e-Privacy directive, arguing that it would in effect allow states to keep these laws. But while it is true that the e-Privacy directive allows member states to introduce some data retention rules, these have to be strictly proportional and compatible with human rights. And as most existing national laws go well beyond that scope, they do need to be modified in order to comply with the CJEU ruling and the EU legislative framework.

MEPs proceeded to challenge him on the validity of the Passenger Name Records (PNR) agreements in light of the same Data Retention ruling, to which Avramopoulos replied that the Court verdict would be the foundation of all coming policies. Since PNR agreements allow the collection and retention of all flights passenger data for law enforcement purposes, the Commission should undertake a thorough assessment of their compliance with the ruling and the EU Charter of Fundamental Rights. We are encouraged by Avramopoulos’ willingness to use the CJEU’s ruling as a basis for future legislation, but would like to see this extended to the review of already existing data retention schemes.

Several times during the hearing, he brought up the necessity to uphold “Europe’s fundamental rights” and the “the respect of private life,” a pledge we will have to look for. He was confirmed directly after the hearing.

 

V?ra Jourová, Commissioner-designate for Justice, Consumers & Gender Equality

As they relate to Digital Rights, the new office of Justice, Consumers & Gender Equality would work primarily on Data Protection.

During her confirmation hearing, the nominee, V?ra Jourová, was asked multiple questions about the Safe Harbor agreement which currently exists between the EU and the US, and is the framework for the transfer of personal data that has been under increasing scrutiny since the Snowden revelations.  Indeed, Ms. Jourová will be entering into an extremely tense situation, as the Parliament voted in May on a non-binding resolution to suspend the Safe Harbor agreement until it had been properly scrutinised.

At her hearing, Jourová stated that “trust in the US has been destroyed” and that suspension of the agreement should not be off the table – but added that it would not be scrapped without a plan B – though she failed to identify what that plan was. She was also quite vague, and failed to detail any specific steps about how she planned to go about “restoring trust” in the US, but mentioned that she would be working with Andrus Ansip, Vice-President Commissioner for the Digital Single Market to do so.

It should be noted, however, that after her hearing, she felt necessary to clarify that the EU and the US “share common targets” and that cooperation was crucial.  She insisted that it was up to the US to commit to ensuring parity of rights with EU and American citizens.

Though Jourová was not confirmed directly after her hearing, she later got the green light after the MEPs asked for clarification on the rest of her portfolio.

 

Margrethe Vestager, Commissioner-designate Competition

With an ongoing investigation over Google’s trust strategies and a routine use of tax evasion schemes by tech companies, the Competition commission will have a fair share of digital policy to deal with. Apple, Facebook and Google have all been known to locate part of their business in Ireland partly because of its exploitable tax legislation. Amazon is also under investigation for potentially illegal state aid in Luxembourg.

As Commissioner, Former Danish economy minister, Margrethe Vestager would have to address the issue of big data for which the Competition commission was called upon by the European Data Protection Supervisor “to wise up” on its implications for antitrust abuses. Vestager recognises big data importance as a “currency of the internet,” and belonging to a zone between competition, personal rights and freedoms.

While Vestager clearly voiced her willingness to fight anti-competition practices across Europe, at her hearing more precise questions turned up no further details about how she would deal with anti-trust allegations against tech companies. Several times, she either declared that current investigations should be pursued further, or that she needed more research. She was confirmed directly after the hearing.

 

Frans Timmermans, Vice-President Better Regulation, Inter-Institutional Relations, Rule of Law and Charter of Fundamental Rights

Better Regulation, Inter-Institutional Relations, Rule of Law and Charter of Fundamental Rights will oversee the EU lobbying scene and thus, will have a large impact on the increasingly bloated influence of corporations on decision-making in policy.  

During his hearing, Timmermans clearly addressed himself to EU lobbyists, stating that Europe needs “a mandatory register” which will substitute the current voluntary EU Transparency Register (now counting a rough number of 30,000 lobbyists in Brussels).

Timmermans received an overall warm-welcome by most of the MEPs during his hearing and seemed aware of the essential role he is going to play during the next five years for the protection and promotion of fundamental digital rights in Europe. Timmermans was confirmed directly at the end of his hearing.

 

Cecilia Malmström, Commissioner-designate Trade

The hearing for Cecilia Malmström turned out to be one of the most controversial hearings. The current Commissioner for Home Affairs faced questions from several MEPs regarding a document acquired by Access through a Freedom of Information request indicating that she might have secretly dealt with the US to undermine the Data Protection reform.

As Commissioner for Trade, Malmström will be leading the negotiations for the EU on the Transatlantic Trade and Investment Partnership. Given the elements shedding light on her close relationship with the US administration, serious concerns arose regarding her suitability for this position and her willingness to defend EU citizens’ interest. In her reply, she first rejected these “allegations” or “lies” based on a “leaked e-mail.” In a later exchange of emails with Access now made public, Malmström recognised the authenticity but did not comment on her activities with the US administration.

Another controversy that came up during the hearing was regarding Malmström position on the heavily discussed “Investor to State Dispute Settlement”  (ISDS) mechanism. The EU is currently facing public outrage while assessing whether to include ISDS on trade agreement being negotiated with the US and Canada. As a large majority of citizens oppose the introduction of this mechanism, which trumps rights of businesses over public interest and fundamental rights, Commissioner Malsmtröm was asked to clarify her position on ISDS. Prior to the hearing, a version of Malmström’s testimony was sent to all MEPs with tracked changes visible that had been inserted by Juncker’s chief of staff’s without her knowledge. This content led many to believe that Malmström would oppose ISDS, when during the hearing, Malmström clarified that she acknowledged concerns on ISDS but hadn’t yet set her position as to whether or not to use it in future trade agreements.

Despite the controversies, Malmström was confirmed as Trade Commissioner the day after her hearing by the MEPs.

 

Final Remarks

These hearings have proven to be illuminating as some potential conflicts of interests or statements made in the past by nominees have agitated the audiences.  What we know is that some of these appointees have a much greater understanding of the digital rights issues they will be facing than others.  We can only hope that those who don’t have the expertise will choose to listen to civil society and expert voices as these issues take shape.

Even with the late confirmation of the most controversial candidates, one of them, Alenka Bratušek, the Slovenian Commissioner-designate, has been rejected and Hungary’s candidate Tibor Navracsics has been asked to take a different portfolio. While these candidates would not have worked on digital issues, their rejection forces the Juncker commission to reshuffle. Therefore, current Commissioners designated for digitals might have to be moved as well.  According to initial information, the new changes will not impact the commissioners presented here – but as they say in Brussels, “nothing is agreed until everything is agreed.” Stay tuned for updates!

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