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EU Commissioner candidates spoke: State of play for digital rights

October 20, 2019 In Design News,Digital Freedom

On 1 November 2019, the new College of European Commissioners ?
comprising 27 representatives (one from each EU Member State), rather
than the usual 28, thanks to Brexit ? are scheduled to take their seats
for the next five years, led by incoming President-elect, Ursula von der
Leyen.

A leading role in Europe?s digital future

EU Commissioners are a powerful bunch: as the executive branch of the
European Union – complementing the European Parliament and the Council
of the European Union as legislators, and the Court of Justice of the
European Union (CJEU) as judiciary ? the College?s wide-ranging
responsibilities cover EU policy, law, budget, and ?political and
strategic direction?. With digitalisation an issue that transcends
borders, the choice of Commissioners could have an impact on digital
rights across the world.

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Between 30 September and 8 October 2019, the Commissioners-designate
underwent marathon confirmation hearings in the European Parliament.
These hearings give the EU elected representatives (Members of the
European Parliament, MEPs) an opportunity, before voting on the
Commissioners-designate, to ask them questions about their capacities
and potential priorities if elected. Among the three that did not make
the cut was France?s nominee for Internal Market, Sylvie Goulard, whose
late-stage rejection may delay the start of the new Commission.

A shared task to update Europe for the digital age

Five of the incoming Commissioners? portfolios are predicted to have a
significant influence on digital policy. Carved up by President von der
Leyen, their overlapping responsibilities to make Europe fit for the
digital age could make or break citizens? rights to privacy, data
protection and online freedoms in general:

Sweden?s Ylva Johansson, Commissioner-designate for Home affairs, will
inherit a portfolio including cybercrime, terrorist content Regulation
and issues relating to privacy and surveillance. Whilst her hearing was
relatively light on digital questions, it was certainly heavy in evasive
answers. Her insistence on fundamental rights was a good start, but her
call for compromise between security and privacy fell into the age-old
myth of the two rights as mutually exclusive.

Belgium?s Didier Reynders, Commissioner-designate for Justice and
Consumers, championed rights by committing to enforce the General Data
Protection Regulation (GDPR) to its fullest extent. On Artificial
Intelligence (AI) and data protection, he promised swift law, safety,
trust, transparency, and for those making or judging the law to better
understand the impacts of algorithmic decisions. He cited plans for a
collective redress position in November.

No-longer-Commissioner-designate Sylvie Goulard, of France, lost her
chance to oversee the Internal Market. Although Goulard pitched
increased digital education and maintaining the EU?s data policy
leadership, Members of the European Parliament (MEPs) were far more
concerned with Goulard?s past. Accusations of impropriety in her former
role as a French defence minister, and high earnings as a private
consultant in office, led MEPs to conclude that she lacked the integrity
to be a Commissioner.

The Czech Republic?s V?ra Jourov? (current Commissioner for Justice)
made her case as Commissioner-designate for Values and transparency.
Democracy, freedom of expression and cracking down on disinformation
were key topics. Despite an understated performance, she called
Europeans ?the safest people on the planet.? She is right that GDPR sets
a strong global standard, but it has faced a rocky implementation, and
as of today requires further efforts to ensure the harmonisation that
the Regulation prescribed.

Last was Denmark?s Margrethe Vestager for Executive Vice-President for a
Europe fit for the digital age, and continuing as Competition
Commissioner. Her anti-Big-Tech, ?privacy-friendly?, pro-equality,
redistribution agenda was well received. She faced questions about
breaking up Big Tech, leaving it on the table as a ?tool? of last resort
but emphasising her desire to exhaust other avenues first. But she
stumbled when it came to accusations that her aspirations to rein in Big
Tech are incompatible with her remit as leader of the EU?s digital affairs.

The implications on digital policy

Throughout the hearings, the Commissioners-designate made many
commitments, emphasised their policy priorities, and shared their plans
for the future. Although we do not know exactly how this will translate
to concrete policy, their hearings give valuable insight into how the
new College intend to tackle rights challenges in the online
environment. This is not an exact science, but we invite you to join us
? and our “rightsometer” – to speculate about what impact the nominees’
ideas will have on citizens’ digital rights over the next five years,
based on what the nominees did (and did not) say.

Privacy
Key legislation: ePrivacy

The currently stalled ePrivacy Regulation was unsurprisingly raised by
MEPs ? and, reassuringly, Vestager shared that ?passing ePrivacy? needs
to be ?a high priority?.

Result: with Vestager?s support, it is a cautiously optimistic 3/5 on
the rightsometer ? but the troubled history of the Regulation also warns
us not to be too hopeful.

Platform power
Key legislation: E-Commerce Directive (ECD), slated to be replaced by
the upcoming Digital Services Act (DSA)

Vestager was the champion of regulating Big Tech throughout her hearing,
proposing to redress the balance of power in favour of citizens, and
giving consumers more choice about platforms. But she later confessed to
uncertainty around the shape that the DSA will take, saying that she
needs to ?take stock? before committing to a position on E-Commerce.
Jourov? committed to redress in the event of wrongful takedown of
content, and emphasised her strong support for the DSA. However, she
suggested her intention to explore platform ?responsibility? for illegal
content, a move which would threaten myriad human rights.

Result: the rightsometer gives an inconclusive 2.5/5, with commitments
to strengthening Big Tech regulation promising, but risks of unintended
consequences of some of their ideas remaining a big concern.

Disinformation
Key document: Code of Practice on Disinformation

Jourov? committed to tackling the problem of online disinformation,
promising to bring in codes of conduct for platforms; to make it clear
where political advertisements come from, and by whom they are funded;
as well as enforcing ?rules? for political campaigning.

Result: it?s a positive 4/5, and we encourage Jourov? to analyse the
risks of targeted political advertising and the online tracking industry
caused by dysfunctional business models. However, a cautionary approach
is needed (see Access Now, EDRi and Liberties Guide on Disinformation).

Law enforcement and cross-border access to data
Key legislation: ?e-Evidence? proposal

Under direct questioning from MEP Moritz K?rner about plans to advance
e-Evidence, Commissioner-designate Johansson declined to provide a
reply. She also insinuated that fundamental rights to encryption might
be incompatible with fighting terrorism.

Result: e-Evidence makes for a pessimistic 0/5 on the rightsometer, with
nothing to give confidence that this controversial proposal is being
reassessed.

Artificial Intelligence (AI)
Key legislation: none proposed yet ? but both von der Leyen and Reynders
promised ?horizontal? legislation in 100 days

Jourov? emphasised that fundamental rights in AI innovation will “ensure
that our solutions put people first, and will be more sustainable as a
result”. Vestager added that ethics will be at the heart of AI policy,
and Reynders that Europe?s ?added value? is in bringing protection for
privacy and data to future AI legislation.

Result: a promising 4/5 on the rightsometer; we welcome the
Commissioners?-designate focus on fundamental rights when implementing
AI-based technologies.

Where does that leave our digital rights?

Disinformation, Artificial Intelligence, privacy, and mitigating
platform power were all given substantive commitments by the
Commissioners-designate. Protecting fundamental rights  online was,
thankfully, a persistent concern for all the nominees. Certain topics,
such as ?digital literacy? were mentioned, but not given any flesh, and
nominees also declined to answer a number of ?too specific? questions.
Although there was lots about which we can be optimistic, the balance
between rights and law enforcement or innovation means that we should
stay cautious.

Access Now: Meet the European Commissioners: Who will shape the next
five years of digital policy in the EU? (27.09.2019)
https://www.accessnow.org/meet-eu-commissioners/

EDRi: Open letter to EU Member States: Deliver ePrivacy now! (10.10.2019)
https://edri.org/open-letter-to-eu-member-states-deliver-eprivacy-now/

Access Now, Civil Liberties Union for Europe and European Digital
Rights: Joint Report on Informing the ?Disinformation? Debate (18.10.2018)
https://edri.org/files/online_disinformation.pdf

(Contribution by Ella Jakubowska, EDRi intern)