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EUROPEAN COMMISSION

DIRECTORATE-GENERAL JUSTICE, FREEDOM AND SECURITY

Director General

Brussels, 25 JUIL, 2007
DG JLS/CGS/km D(2007) nnnn

[name]
[address]
[email]

Dear [name]

Thank you for your e-mail of 5 July 2007 addressed to Vice-President Frattini on banning of bomb making websites. He has asked me to answer on his behalf. Considerable progress has been made since your letter of 24 August 2006 which makes it possible to update the information provided to you on 28 September 2006.

Concerning your questions on the revision of the Framework Decision on combating terrorism, let me explain that the Commission issued three different questionnaires in 2006: a questionnaire to Member States on 26 June 2006; a questionnaire to national European and international NGOs dealing with human rights issues, bar and lawyers' associations, publishers, broadcasters and journalists' associations, internet service providers, telecommunications companies, and other relevant industry on 20 November 2006, and finally, a questionnaire to Europol, Cepol and Eurojust on 11 December 2006.

For those readers who are not familiar with these European Union agencies:

• EUROPOL = European Police Office, based in The Hague in the Netherlands.

  "Europol, the European Police Office, was set up in 1992 to handle Europe-wide criminal intelligence. It is based in The Hague of the Netherlands, and its staff includes representatives of the national law enforcement agencies (police, customs, immigration services, etc.).
  photo

  Europol's aim is to help the EU member states co-operate more closely and effectively in preventing and combating organised international crime, in particular:
  

  1. drug trafficking
     
  2. immigration networks
     
  3. vehicle trafficking
     
  4. trafficking in human beings including child pornography
     
  5. forgery of money and other means of payment
     
  6. trafficking in radioactive and nuclear substances
     
  7. terrorism"

• CEPOL = Collège Européen de Police – European Police College, based in the UK at Bramshill Police College (and nuclear bunker emergency seat of UK Government) in Hampshire, between Basingstoke, and Camberly.

  "CEPOL was established by the Council of Ministers (Decision of 22 December 2000). Its aim is to help cross-border training of senior police officers by optimising and reinforcing co-operation between relevant national institutes and organisations. CEPOL also aims at supporting and developing an integrated EU approach on the cross-border problems faced by its Member States in their fight against crime, crime prevention, the maintenance of law and order and public security."

• EUROJUST = European Judicial Cooperation Unit, is also based in The Hague in the Netherlands.

  "Eurojust is a new European Union body established in 2002 to enhance the effectiveness of the competent authorities within Member States when they are dealing with serious cross-border and organised crime. Eurojust stimulates and improves the coordination of investigations and prosecutions and also supports the Member States in order to render their investigations and prosecutions more effective."
  

N.B. Incredibly, there does not appear to be any involvement from the one European Union agency which might employ some people with some actual technical expertise and industry experience in the areas of Internet and Telecommunications i.e. ENISA,the European Network and Information Security Agency, based in Heraklion, on the island of Crete, in Greece which

"serves as a centre of expertise for both Member States and EU Institutions, to seek advice in Network and Information Security matters.

As such, ENISA supports the capability of the Member States, the EU-institutions and the business community to prevent, address and respond to Network and Information Security problems.

To this end, ENISA activities are focused on:

1. Advising and assisting the Commission and the Member States on Information Security and to address security-related problems in hardware and software products in dialogue with industry
2. Collecting and analysing data on security incidents in Europe and emerging risks;
3. Promoting risk assessment and risk management methods to enhance our capability to deal with information security threats.
4. Exchange of best practices in Awareness-raising and co-operation between different actors in the information security field, notably by developing public / private partnerships with industry in this field.
5. Tracking the development of standards for products and services on Network and Information Society.

The recipients of the second questionnaire (attached) were:

European Publishers Council
European Newspapers Publishers Association
European Association of Magazine Publishers
Association of Commercial Television in Europe
European Federation of Journalists
European Broadcasting Union
European Internet Service Providers Union
European Competitive Telecommunications Association
European Telecommunications Network Operators' Association
GSM Europe
European Cable Communications Association
Union des Avocats Européens
Council of Bars and Law Societies of Europe
OSCE
Council of Europe
SOS Attentats
Les familles du CD10 UTA en colère

"Les familles du CD10 UTA " refers to the families of the victims bomb on flight UTA 772 which exploded over the Sahara desert in 1989, blamed on Libyan state sponsored terrorists.

Deutscher Opferschutzbund Djerba e.V.
Associazione italiana vittime del terrorismo
Asociación 11M Affectados de Terrorismo
Fundación Victimas del Terrorismo
South/North Armagh Victims Encouraging and Recognition
Victims Support
EU Civil Society Contact Group
CONCORD Europe
European Network against Racism
OSI-Brussels
Amnesty International
Justice in the UK
Privacy International
Statewatch
Human Rights Watch
Fédération Internationale de Droits de l'Homme
International Commission of Jurists
Interights
Article 19
Open Society Justice Initiative
Institut des droits de l'homme des avocats européens (IDHAE)
International Helsinki Federation for Human Rights (IHF)
Platform of European Social NGOs
The Europeans throughout the World
European Citizen Action Service
Réporteurs san Frontières
Europen Group of National Human Rights Institutions
European Monitoring Centre on Racism and Xenophobia

In February 2007 this became the FRA, the European Union Fundamental Rights Agency, based in Vienna, Austria.

Federation of European Explosives Manufacturers European Chemical Industry Council

Further to the consultations above

Sending out a single Questionnaire (see next blog posting) full of open ended questions legal , without any actual detailed policy proposal options to act as straw men to engage with this list of NGOs, does not count as a proper public consultation throughout the European Union How many of the organisations have actually replied ?

and intensive research efforts, the Commission considers that the European Union should make a step forward in the direction of the Convention on the Prevention of Terrorism and the United Nations Security Council Resolution 1624.

The full text of Security Council Resolution 1624 agreed on 14th September 2005, is in a UN press release, which also reports that "The Prime Minister of the United Kingdom, Tony Blair", was the world leader who "tabled the text on terrorism".

This would ensure that the new modus operandi of terrorist groups, and in particular,the use of the internet for terrorist purposes,

Neither transnational terrorism, nor the use of modern communications technology is particularly "new".

is covered by the Framework Decision on combating terrorism, and that there is a consistent approach between the UN, the Council of Europe and the EU.

The Commission plans to revise the Framework Decision on combating terrorism to include parallel offences to those introduced in the Council of Europe Convention for the prevention of terrorism

¹ Council for Europe Convention on the prevention of terrorism of 16.5.2005

This is what the then Deputy Prime Minister John Prescott signed in Warsaw, when he and his Labour Government colleagues failed to sign the other major Convention presented at that COE summit, namely the i.e. sex slaves and exploited illegal migrant workers, which the UK has now belatedly signed, but still not ratified, and there has been precious little "Action".this appears to be because the Home Office bureaucracy prefers to treat sex slaves etc. primarily as illegal immigrants or criminals rather than as victims of organised crime.

Which still provides no answer to our Question 5 from last year:

"5) What about "dual use" information and training materials, such as that which it is a legal obligation for industrial employers and academic research institutions to provide and publish, under Health and Safety legislation e.g. in the United Kingdom, the Control of Substances Hazardous to Health (COSHH) regulations which detail the correct and safe ways to handle explosives, chemical toxins and biological agents, and which are of equal value to terrorists ?

http://www.hse.gov.uk/coshh/

QUESTION 5

As stated before, we are still at the early stage of a the beginning of consultations and it would be premature to speak about a specific solution. Nevertheless, we must insist we can assure you that we will take due care of the needs of the industry and the scientific community as well as those of health and safety authorities. Providing information with scientific purpose should never be confused with the transmission of expertise with a terrorist intention.

How, exactly, can such a distinction be made ?"

The Commission also intends to provide for a high level of human rights protection and,in particular, freedom of expression, as set out in the Council of Europe Convention for the prevention of terrorism. The legal measures adopted will therefore be subject to the principle of proportionality, with respect for legitimacy of the aims and their necessity in a democratic society, excluding any form of arbitrariness or discriminatory treatment.

The existing UK Terrorism Act 2006 is so widely draghted, that it probably already covers any wording of any new laws which the European Commission could come up with, but, like all the other UK terrorism legislation, it does not, in practice, actually clearly and unambiguously comply with "the principle of proportionality, with respect for legitimacy of the aims and their necessity in a democratic society, excluding any form of arbitrariness or discriminatory treatment."

Concerning the consequences for the private sector and internet services providers in particular, the legal measures planned by the Commission would not entail any modification of the Directive on electronic commerce²,

² Directive 200/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) OJ L 178, 17/07/2000,p. 1.

The criminalisation of public provocation to commit terrorist offences, recruiting for terrorism and training for terrorism at European Union level would build upon the existing regime of the Directive: its limitations of liability would be respected in respect of public provocation tocommit terrorist offences, recruiting for terrorism and training for terrorism. The existing rules of the Directive on liability would therefore apply, including those concerning illegal information or activities and the possability for law enforcement authorities to request internet service providers to prevent or terminate an infringement.

In other words "common carrier status"for telcos and ISPs, so that they are not sued as publishers of illegal information, but this does nothing to protect the position of say, of a blog or discussion forum, which is not being run for profit.

I hope this information will be useful

Yours sincerely

Jonathan FAULL

Annex: Questionnaire on inciting, aiding or abetting terrorist offences

Commission europépenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussesl - Belgium. telephone (32 -2)299 11 11.

Office: LX 46 06/105. Telephone: direct line (32-2) 29 58658 Fax: (32-2) 296 76 16

Remember, that once the legal framework and technical infrastructure for European Union wide internet censorship is in place, in this case for anti-terrorism purposes, there will be little to prevent future "function creep" and expansion of such censorship at the whim of politicians and bureaucrats, who probably sincerely believe that they intend to do good.

Such powerful potential tools of repression must not simply be created without properly informed public debate, throughout the entire European Union on the principles, technical practicality and cost effectiveness of specific, detailed policy proposals since they are unlikely to ever be dismantled once they have been created.

See the next blog posting European Commission - Questionnaire on inciting, aiding or abetting terrorist offences