Three years into the digital fight for freedom in Brussels – Pirates matter!
Three years ago, I entered the European Parliament thanks to 240,000 votes for the German Pirate Party and no blocking threshold (which the German Federal Constitutional Court had declared unconstitutional). Three exciting years in which my team and I fought against the full force of surveillance and data exploitation mania of the Ursula von der Leyen Commission. In accordance with the results of a member survey in my party, I voted against the election of von der Leyen, who had already supported unconstitutional data retention as a member of the German Bundestag and was silent on the issues of lobbying, transparency and citizen participation. Jointly, the three Czech Pirate MEPs and me rejected von der Leyen.
The work of the Pirate movement in the European Parliament is characterised by our close cooperation and cross-border division of labour. I am also proud that we Pirates are now in the government in the Czech Republic and the Ministers of Foreign Affairs and Digital Affairs are Pirates. This will be particularly helpful in the next six months, when the Czech Republic holds the EU Presidency and negotiates for the Council.
One thing has been clear since my election: our fundamental rights and freedoms in the digital age are being attacked and dismantled across Europe. Industry, the EU Commission and the governments of the member states are responsible for this. And yet I was able to achieve successes in the fight against surveillance and screening mania.
Major success: EU Parliament calls for ban on biometric mass surveillance
In October 2021, a large majority of EU MEPs rejected biometric facial recognition and other forms of biometric mass surveillance in public spaces. Amendments proposed by the conservatives to call for “exceptions” were defeated. The vote was a crucial milestone for us in the fight against the discriminatory use of mass surveillance tools in public spaces. Previously, I had campaigned for a ban on these highly intrusive and error-prone technologies in public spaces, because biometric mass surveillance wrongly implicates large numbers of innocent citizens, systematically discriminates against under-represented groups and threatens our free and diverse society. I coordinated a campaign by my group to ban biometric mass surveillance, where we commissioned studies and mapping, hosted events and provided a free video game (biometric outrun) – try it, it’s not so easy to escape the scanners!
This clear message from Parliament to take civil society’s warnings seriously and ban biometric mass surveillance in public spaces in the proposed Artificial Intelligence Act was a great success for me and my team. Now it is a top priority for us four Pirate MEPs in Brussels to make sure the ban is implemented in the currently negotiated Artificial Intelligence Act (AIA). There is a majority in parliament in favour of a ban on biometric mass surveillance. However, the negotiations with the national governments next year will be decisive. So far, they have strictly rejected such a ban.
Decision-makers often learn best what surveillance means when they are affected by it themselves. This became obvious in May 2022 when the Parliament by a large majority rejected a project of the parliamentary administration to collect fingerprints of all MPs for a “biometric attendance register”. We must not allow the mass processing of biometric data to become the new normal!
Digital Services Act: Fighting against industry and government interests
As rapporteur for the Civil Liberties Committee (LIBE), I fought for digital citizens’ rights in the trilogue negotiations on the Digital Services Act – unfortunately largely unsuccessfully. The EU governments in the Council stubbornly defended industrial and governmental interests, and the Parliament agreed to this in exchange for a speedy conclusion of the negotiations. At least we were able to prevent the indiscriminate collection of the mobile phone numbers of all uploaders on adult platforms, which would have endangered the privacy of users and especially the safety of sex workers due to foreseeable data hacks and leaks. We also successfully fought against removal obligations for search engines. And at least minors will be protected from being manipulated by way of targeted advertising in the future.
Video: Patrick Breyer explains the Digital Services Act
Chat control 2.0: We can still stop it
As shadow rapporteur for the Greens/EFA Group, I fought without success against the adoption of voluntary chat control in July 2021. However, I and my fellow campaigners from politics and civil society managed to mobilise a lot of attention and protest in the media, politics and the population in Germany with targeted campaigning and public relations work when the plans for the introduction of mandatory chat control were presented in 2022. When the proposal was finally published in May 2022, the public outcry was great. Even the German Child Protection Association has described the EU Commission’s planned scanning of private communications via messenger or email without any reason as disproportionate. The majority of child pornography material is shared via platforms and forums, they say. What is needed is “above all the expansion of human and technical resources at the law enforcement agencies, more visible police presence on the net, more state-run reporting centres as well as the decriminalisation of the dissemination of self-generated material among young people”.
With chatcontrol.eu I provide a comprehensive website on the topic. I commissioned a former judge with the European Court of Justice to write a legal opinion, finding that the proposed chat control violates fundamental rights. Now it is time to forge an international civil society alliance against chat control!
TERREG: Attack on freedom of expression
I achieved partial successes in the controversial EU regulation to prevent the dissemination of terrorist content on the internet (TERREG), which allows national authorities to have alleged terrorist internet content deleted within one hour without a court order – even if it was published in another member state. As the negotiator for my group Greens/EFA, I helped prevent, for example, an obligation to use error-prone upload filters, ensured special protection of journalism, art and science and secured an exception for small and non-commercial platforms from the 1-hour deletion deadline. Unfortunately, the TERREG regulation still remains problematic.
Digital learning during the pandemic
Is copyright hampering schools, universities and research in the Covid 19 pandemic? The proposal by Felix Reda and me to have this investigated received a majority and will be taken up. Background: Digital lending and digitisation of books is legally permitted, but in practice books are still rarely available digitally. This is especially disadvantagous when libraries are closed due to a pandemic. Thanks to the pilot project it can now be investigated what practical improvements are needed in order for libraries to actually use the exemption for public lending of e-books.
By the way, I regularly call publicly for project proposals. Everyone can contribute their ideas.
Stop data retention!
The generalised and indiscriminate retention of information on contacts, movements and internet use of the entire population is an unprecedented attack on our right to privacy and the most profound form of mass surveillance. It captures highly sensitive information about our daily lives and excludes no one. Following the annulment of the EU Data Retention Directive, we have so far been able to prevent a new attempt. However, the EU Commission and member states’ governments are already planning it behind closed doors.
A study I commissioned shows that data retention of telephone, mobile phone and internet use has no measurable impact on crime rates or clearance rates in any EU country. An opinion poll I commissioned (summary, full text) showed that in nine EU countries data retention causes massive social problems because it discourages confidential communication – and that it is generally widely opposed. In a legal opinion commissioned by me, former EU judge Prof. Dr. iur. Vilenas Vadapalas states that two of the most widespread methods of data retention (national security, geographical limitation) are envisaged in a manner “not compatible with ECJ case law and fundamental rights”. A summary can be found here.
Nomination of Julian Assange for the Nobel Peace Prize
Together with my three fellow Czech Pirates in the European Parliament, I proposed the nomination of Julian Assange for the Nobel Peace Prize to the Norwegian Nobel Committee in January 2022. For the Pirates, the case of Assange is a symbol of the suppression of freedom of expression and the public’s right to information.
My legal successes
In January 2021, the European Court of Justice made a landmark judgment of great importance for EU-funded “security research” following my legal action (Case T-158/19). Under the “iBorderCtrl” project, the EU tested the use of alleged “video lie detector” technology on travellers. I had filed a lawsuit on 15 March 2019 for the release of secret documents on the ethical justifiability, legal admissibility and results of the technology. According to the court ruling, the EU research agency can no longer keep these documents completely secret. For example, the ethical and legal evaluation of technologies for “automated deception detection” or automated “risk assessment” must be published, as long as they do not relate specifically to the iBorderCtrl project. Yet, in order to protect commercial interests, the examination of the ethical risks (e.g. risk of stigmatisation and false reports) and the legal admissibility of the concrete iBorderCtrl technology and reports on the results of the project were allowed to be kept secret. I filed an appeal against this continuing lack of transparency. Throughout the procedure, I was able to achieve critical reporting repeatedly. The proposed AI regulation could ban video lie detectors.
I achieved another important success before the German Federal Constitutional Court in July 2020: Investigators are not allowed to access the identity of internet and mobile phone users without cause. The court declared parts of the German law on subscriber data disclosure unconstitutional. The ruling followed a collective constitutional complaint against state access to passwords and the identity of internet users (so-called subscriber data disclosure, case no. 1 BvR 1873/13, 1 BvR 2618/13). This complaint was filed in 2013 by myself and Katharina Nocun as the first complainants, along with 6,373 other citizens.
Outlook
Until the next European elections, I will be involved in negotiating the proposed “European Digital Identity” (keyword: personal identification number), the regulation on the targeting of political advertising (keyword: Cambridge Analytica), the regulation on the creation of a European space for health data, the regulation on privacy in electronic communications (ePrivacy) and the chat control regulation.
Electoral Threshold: Attack on Democracy
Whether the German Pirate Party can continue to defend digital fundamental rights in Brussels depends on whether the political establishment succeed in grabbing the seats of smaller parties by mandating a minimum percentage of votes for entering the parliament (electoral threshold). The ruling coalition in Germany could ratify an electoral law amendment from 2018 that provides for such a 2% blocking clause. Another electoral law amendment is currently negotiated which, according to the proposal of the European Parliament, would even introduce a 3.5% blocking clause. Due to the primacy of European law, several rulings of the Federal Constitutional Court on the unconstitutionality of blocking clauses would be undermined.
With the planned 3.5% blocking clause, 3.1 million votes for six small parties such as the Pirate Party would have had to be discarded in the last European elections and their parliamentary seats would have had gone to the political establishment instead. The EU electoral law reform must not be a vehicle for self-serving blocking clause plans of the governing parties, which want to compensate for their collapsed election results! Europe needs more openness and more diverse political ideas, not less. Leaving millions of citizens who are disillusioned with the established parties with no other choice will either drive them into the arms of anti-democratic parties or make them turn their backs on the ballot altogether. Both damages our democracy and endangers Europe.
Now it is up to us to fight for democracy and diversity in parliament. In the digital age, Europe needs us Pirates as digital freedom fighters more urgently than ever!
