Here's the story that's been making headlines in Europe over the last few days: the EU is getting ready to impose Internet traffic monitoring fit for a police state, might ban all peer-to-peer software, and is ready to implement a "three strikes and you're off the 'Net" policy for users sharing copyrighted files. Gross exaggerations, of course, but you wouldn't necessarily know that if you'd read the news sections of online rights groups, or even the website of the venerable BBC. The phrasing in these reports appear to have originated in press releases from two Internet privacy groups that have what can be charitably called an overheated take on some of the EU legislation's provisions.

Ambiguities, not communism

The EU's Telecom Package is a catch-all piece of legislation that aims to harmonize network and wireless access principles across the member states. Provisions under consideration would include the establishment of a small body that oversees regulations of its member states and a Market Authority that encourages the adoption of next-generation authorities. Other provisions would formalize a users' bill of rights in terms of privacy and universal access. As the legislation is working its way through committees in the amendment phase, it appears that various special interest groups appear to be trying to get their views slipped into the legislation; in some cases, these provisions are somewhat ambiguously worded.

That ambiguity hasn't stopped a number of groups from drawing some very unambiguous conclusions about those provisions. The BBC report echoes the contentions of the Foundation for a Free Information Infrastructure, which accused the European Parliament rushing towards a "Soviet Internet." That contention appears to be based on a provision on packet filtering. Benjamin Henrion, an FFI representative, also charged that the legislation will create some sort of software licensing authority. "Tomorrow," he stated, "popular software applications like Skype or even Firefox might be declared illegal in Europe if they are not certified by an administrative authority."

Those claims are reiterated and extended by the French group La Quadrature du Net, which issued an analysis (PDF) of several amendments last week. In addition to accusations of spying and censorship, the group decries a provision that they term "blackmail by e-mail." This would codify the use of warning letters sent to copyright infringers by ISPs. Oddly, these warning letters are conflated with the "three strikes" proposals, which would ban the infringers after repeated warnings. (The European Parliament rejected the idea of a widespread "three strikes" rule only a couple of months ago.)

This approach—take the obvious text of the amendments and conflate them with the worst fears of 'Net users—pervades the analysis. One amendment allows nations to establish regulatory bodies to set minimum quality of service standards and take measures to ensure that these are met, provided those measures don't create barriers with the internal EU market. Any measures must also "ensure that the ability of users to access or distribute lawful content or to run lawful applications and services of their choice is not unreasonably restricted." LQN has apparently decided that any quality of service measures must mean filtering (termed "treacherous computing"), and that the ability to identify lawful applications will mean that any P2P applications, including Skype, might be deemed "unlawful."

Another provision states that EU members cannot set requirements for equipment to include copyright infringement snooping technology, as that could impede the equipment's use uniformly throughout the Union, although it notes an existing mechanism for dealing with these market issues. Apparently, the mere act of noting that mechanism opens the door to packet snooping and the "Soviet Internet."

A final amendment limits IP traffic processing to whatever is needed to ensure network security, which seems to be directed towards allowing network providers to control malware and botnets; instead, this is deemed more "treacherous computing," with a goal of blocking DRM circumvention.

Clearly, some of the phrasing of the amendments is designed to suggest to content owners that the European Parliament is taking their concerns seriously. But the language is very ambiguous and needs to be read with a specific (and unusual) bias in order to be viewed as actually trying to implement policies to help them. Which is precisely its point.

The type of phrasing used by this legislation typifies a technique used on both sides of the Atlantic: use code words that signal certain constituencies (say, the content industry) that you care about them. The language is generally meaningless when actually implemented and enforced, however, meaning that legislators to use it as cover without fear of actual ramifications. It would clearly be preferable if this tactical posturing did not take place, but it makes little sense to suggest that the sky is falling when it does. It makes even less sense to accord these accusations uncritical coverage.

The two MEPs who authored most of the amendments in question are English; in a statement given to constituents, the two men seemed frustrated with the current rhetoric and said that they "would like to highlight that their amendments reinforce the openness of the Internet and they have ensured that consumers’ rights are respected, with copyright issues being restricted to public service information only."

With the bill's amendments now in place, the complete package will be voted on by MEPs in September.