More inputs to HR caucus document

[Meryem Marzouki <marzouki@ras.eu.org>]

Hi again,

Here are more possible inputs to a HR caucus document. Please take into 
account that the following document has been written focusing on the 
French national context and/or the European context: it was proposed by 
IRIS, my organization, and adopted as a common statement by other 
French NGOs and trade unions some times ago. Also, the text is not very 
recent, although most of the items remains valid.
I think many items could be excerpted and reorganized under new 
sections referring to fundamental rights and freedoms, and would 
provide relevant inputs to our document. This is actually what has been 
done for the "right to education and knowledge" part we sent you 
yesterday as part of the draft HR caucus document proposal.
Meryem
======
1. Concerning online users' responsibility:

- Respect for individual and public liberties, guaranteed by the 
fundamental texts of national and international bodies, should prevail 
over all other considerations.
- The legal doctrine of "responsabilité en cascade" [1] is not 
applicable to public communication on the Internet. The authors of such 
communication are equally its editors on the Internet, outside of 
professional contributors where their employers are the editors.
- Only a judicial authority can determine the illegal character of 
content on the Internet. Outside of questions relevant to the 
protection of personal data, any other form of control should not be 
allowed, a priori or a posteriori, by technical intermediaries or by 
private or public organizations. The principle stated here rules out 
the idea of "autoregulation" or "coregulation".

2. Concerning the regulation of content on the Internet:

- The notion of the "moral obligation of content" (deontology) [2] 
makes no sense: there is no deontology except along the lines of a 
person's occupation, and such obligation is already exercized by 
professionals.
- The regulation of public content on the Internet should remain under 
the common rule of law, which guarantees liberty of expression and 
enumerates potential abuses precisely and in a strictly limited sense.
- Content labeling cannot be accepted except in a voluntary and 
positive manner. It cannot be imposed on the authors of Internet sites.
- The filtering of this content should remain the responsibility of the 
end users, or of their guardians in cases where the end users are not 
legally responsible.

3. Concerning the confidentiality and protection of personal data:

- The protection of fundamental rights of citizens takes place through 
the guarantee of confidentiality -- which includes the total 
liberalization of cryptography and the non-traceability of messages -- 
as well as by the strictest protection of their personal data.
- Each individual should have the power to use any means that he or she 
finds convenient to protect the confidentiality of his or her 
communications, without escrow of private encryption keys.
- No personal data should be stored without the knowledge of the 
parties concerned, or used without their express consent.
- The storage of data relating to individuals should not exceed one 
month in duration, like in the current case of video surveillance tape 
storage.

4. Concerning democratic control over police investigations:

- The fight against crime at the national, European, or international 
level should not be a pretext for weakening the fundamental rights of 
citizens.
- A parliamentary commission of inquiry, together with the European 
Parliament, should examine every organization and/or decree that can 
potentially weaken the protection of privacy and personal data. A body 
responsible for oversight should be put in place to assure follow-up 
for the results of the inquiry. In particular, the activities of 
Europol, such as systems for the interception of communications like 
ECHELON, should be subject to examination.

5. Concerning trade union rights and worker rights:

- Any illegitimate surveillance of workers should be heavily punished. 
The rights to exchange correspondence and to the privacy of this 
correspondence should be explicitly upheld.
- Trade union rights should be extended to the use of the Internet 
within enterprises and establishments, on the basis of the law of 
December 27, 1968 [3].
- A national debate should be opened over changes in working conditions 
caused by telecommuting and the information-driven transformation of 
society.

6. Concerning controls on advertising and unsolicited communications:

- Every message that is an advertisement or is predominantly 
advertising should be clearly marked as such.
- The reception of unsolicited communications should be subject to the 
express consent of the end users.
- Invasive forms of advertisement that disturb the reading of a site's 
editorial content should be prohibited.

7. Concerning traditional author's rights and the right to information:

- Traditional "author's rights" [4] should be preserved and respected.
- The right to information should be exercized through the concept of 
private copy, and the extension of this concept to that of fair use, or 
use for non-commercial purposes, education, and research.
- Access to public data without charge and to teleprocedures for 
conducting public services online should be extended.
- It should not be possible to patent ideas, which we define to include 
programming methods and algorithms [5].
- The production and use of free and open content and software should 
be encouraged and covered by public policy.

8. Concerning the democratization of Internet access:

- Universal service in telecommunications should be extended to include 
Internet access for all, along with a drastic reduction of local 
communication costs. Permanent, "always-on" connections should be 
promoted, with each individual capable of acting as an information 
provider.
- The assignment of domain names within ccTLDs controlled in France 
(such as .fr) and within authorized gTLDs (such as .org, .com, and 
.net) should be a public service, sold on a non-profit basis at rates 
affordable by individuals as well as groups.
- The democratization of Internet access requires the acquisition of a 
basic information and electronic education by all, so that each 
individual is competent to master social transformations in all their 
practical and civic aspects. This goal should be entered into the 
mission of public education, which can delegate it under certain 
circumstances to non-profit institutions having the same goal.

9. Concerning the struggle against commercialization:

- The exception to trade rules for cultural activities should be 
extended to all multifunctional [6] sectors, such as education and 
culture.
- The availability of services, utilities, and content for 
non-commercial use on the Internet contribute to this 
multifunctionality and to cultural diversity.
- The development of electronic commerce should not serve as a pretext 
for abandoning public services and the sovereignty of the state, 
notably in terms of fiscal revenues.

Explanatory notes
[1] "Responsabilité en cascade" or "chain liability" is a legal 
doctrine in the French Press law. Under this law, a publisher who 
publishes illegal statements (e.g., in case of defamation or libel) 
must be sued before the journalist who wrote the statements. The 
journalist cannot be the sole target of a lawsuit, and in some cases he 
cannot be made liable at all). The publishing editor assumes 
responsibility in any case. This doctrine is different from "vicarious 
liability," in that it is specific to the Press law, and in that it 
protects journalists and Freedom of Press.

[2] Deontology is the legal term for the ethical or moral obligations 
that certain professions impose on their practitioners; such 
requirements always depend on the particular conditions under which a 
profession does its work. But some legislators have been trying to 
extend the concept very broadly so as to create moral requirements for 
anyone putting content online.

[3] This law defines trade union rights and worker rights, like the 
right to meet and disseminate information inside company buildings, 
with special rooms set aside for workers' organizing work.

[4] Author's right is the principle behind French literary and artistic 
property. It differs from copyright in that moral and patrimonial 
rights rest with the author. Note: The concept of fair use isn't 
recognized in the French law.

[5] Algorithmic methods are theoretically unpatentable in Europe under 
the Munich Convention. In practice, software can be patented in some 
cases where they are considered processes.

[6] Multifunctionality is said to be a "European concept," which has 
been highlighted for the first time in the United States by NGOs who 
met in Seattle to stop WTO Millenium Round. Some sectors of activity 
are multifunctional in that they not only produce some commercial goods 
or services, but also ensure social cohesion, quality of life (taking 
care of environment), civic education, etc.: they are a 
social/political project as a whole, thus their multifunctionality. 
Examples of multifunctional sectors are Education, Culture, 
Agriculture, and Health.