The invalid Data Retention Directive and Estonia

Posted: May 10th, 2014 | Author: | Filed under: Estonia, european union, human rights, law, privacy, thoughts | No Comments »

One of the most important decisions about protection of human rights in Europe (and perhaps the world) in recent times, was the 8 April 2014 decision of the European Court of Justice in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others. The case concerned the contentious Data Retention Directive, which required all Member States to keep so-called metadata about mobile and fixed phone and internet connections. The Court found that the directive interfered disproportionately the right to private life of all European residents and declared the so-called Data Retention Directive invalid in its entirety and from the time it came into force. There case came about because of Digital Rights Ireland and more than 12 000 private individuals in Austria had contested the validity of the data retention requirement (as it amounts to mass surveillance). There had already been constitutional challenges to the laws adopted based on the directive in many member states (Germany, Romania) and several refused to transpose the directive (Sweden), so it is clear that the directive was controversial. After all, it had been adopted in a three-month expedited proceeding after the London and Madrid terrorist attacks.

In Estonia the data retention requirements have so far not raised in formal legal constitutional issues. Looking through the procedure of adoption of the law, it seems that privacy rights argumentation was never really raised and there was almost no opposition to this (what many call totalitarian) law. The law was passed after six month legislative procedure with 82 members of parliament out of 101 voting in favour (with no votes against or abstaining). The explanatory note of the draft law states that the proposal was put together by two public officials (one from the Communications Board and another from the Ministry of Economy and Communications), with participation of “surveillance and security authorities” and the Estonian Information and Telecommunications Union. The only contentious issue that was raised seemed to be that the telecoms were not happy with having to pay for the data retention themselves (they still do).

The Estonian provision seems to be much wider than the directive, for example allowing the retained data to be used not only for serious crimes, but has been expanded to include also misdemeanours (even by the tax authorities!). This in itself seems excessive and disproportionate even if the directive was still valid. There are a number of other issues, but the most fundamental one is that according to European Court of Justice, mass surveillance is not allowed by law. It is disproportionate (even to fight terrorism) to preemptively gather, retain and process data about every single person.

So why did our constitutional system of protection of basic human rights (and the right to privacy) fail so spectacularly in this issue? In my opinion the reasons were the following:

  • Not enough detailed human rights scrutiny of laws made due to harmonisation of laws based on EU directives. The Estonian authorities seemed to assume that since this was based on an EU directive, there was no inherent risk to human rights protection. The human rights architecture in Europe assumes that there is scrutiny in terms of human rights BOTH in EU level and in national level, but this time there seemed to be neither worked. President Ilves failed in his duties as he can refuse to sign the laws he believes are unconstitutional and instead proclaimed it without problems.
  • The lack of independent NGOs dealing critically with human rights (and specifically with data protection). There was simply not enough specific expertise in Estonia to challenge the draft at any stage of the process.
  • Lack of discourse critical of technological development, also unfounded trust in technology. Since the belief in the positive impact of technology is so engrained, any opposition to using mass data collection could be seen as standing against the ‘normal’ technological development of the society. The so-called tech and data protection experts are rather evangelists who stand to personally benefit from lack of critical discourse.
  • Overall weak position and awareness of human rights. In many ways human rights are seen as declaratory, self-evident principles that have little impact in the daily lives of Estonian people, especially in specific matters.
  • Hightened sense of vulnerability brought about by fear of terrorism. I think that in Estonia this is not so relevant, since the number one fear is still Russia and there has been no terrorist attacks on Estonian soil. However, decision makers might be influenced by this.

So what now? At the moment the law in Estonia is in place and the massive breach of privacy rights is allowed to continue. There has been almost no public debate and the governmental authorities seem to be waiting for the reaction of someone else (in Finland, the review of retention laws was announced a couple of days after the judgement).

The situation is remarkably problematic not only because of the continuing disproportionate infringement of privacy rights, but the credibility problem this poses for Estonia’s image as a technologically advanced country both internally and externally. Are Estonian people going to continue to trust in e-services when it is clear that the human rights safeguards are not working? Is the international community ready to admit that Estonia is not such a great example of tech-friendly society after all if it also means lack of regard to basic human rights?

 

Annex: The provision in question is as follows (English translation is only available for the future version, but there seems to be no change in terms of this provision):

§ 1111. Obligation to preserve data
(1) A communications undertaking is required to preserve the data that are necessary for the performance of the following acts:
1) tracing and identification of the source of communication;
2) identification of the destination of communication;
3) identification of the date, time and duration of communication;
4) identification of the type of communications service;
5) identification of the terminal equipment or presumable terminal equipment of a user of communications services;
6) determining of the location of the terminal equipment.
(2) The providers of telephone or mobile telephone services and telephone network and mobile telephone network services are required to preserve the following data:
1) the number of the caller and the subscriber’s name and address;
2) the number of the recipient and the subscriber’s name and address;
3) in the cases involving supplementary services, including call forwarding or call transfer, the number dialled and the subscriber’s name and address;
4) the date and time of the beginning and end of the call;
5) the telephone or mobile telephone service used;
6) the international mobile subscriber identity (IMSI) of the caller and the recipient;
7) the international mobile equipment identity (IMEI) of the caller and the recipient;
8) the cell ID at the time of setting up the call;
9) the data identifying the geographic location of the cell by reference to its cell ID during the period for which data are preserved;
10) in the case of anonymous pre-paid mobile telephone services, the date and time of initial activation of the service and the cell ID from which the service was activated.
(3) The providers of Internet access, electronic mail and Internet telephony services are required to preserve the following data:
1) the user IDs allocated by the communications undertaking;
2) the user ID and telephone number of any incoming communication in the telephone or mobile telephone network;
3) the name and address of the subscriber to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;
4) the user ID or telephone number of the intended recipient of an Internet telephony call;
5) the name, address and user ID of the subscriber who is the intended recipient in the case of electronic mail and Internet telephony services;
6) the date and time of beginning and end of the Internet session, based on a given time zone, together with the IP address allocated to the user by the Internet service provider and the user ID;
7) the date and time of the log-in and log-off of the electronic mail service or Internet telephony service, based on a given time zone;
8) the Internet service used in the case of electronic mail and Internet telephony services;
9) the number of the caller in the case of dial-up Internet access;
10) the digital subscriber line (DSL) or other end point of the originator of the communication.
(4) The data specified in subsections (2) and (3) of this section shall be preserved for one year from the date of the communication if such data are generated or processed in the process of provision of communications services. Requests submitted and information given pursuant to § 112 of this Act shall be preserved for two years. The obligation to preserve the information provided pursuant to § 112 rests with the person submitting the request.
(5) The data specified in subsections (2) and (3) of this section shall be preserved in the territory of a Member State of the European Union. The following shall be preserved in the territory of Estonia:
1) the requests and information provided for in § 112 of this Act;
2) the log files specified in subsection 113 (5) and the applications provided for in subsection 113 (6) of this Act;
3) the single requests provided for in § 1141 of this Act.
(6) In the interest of public order and national security the Government of the Republic may extend, for a limited period, the term specified in subsection (4) of this section.
(7) In the case specified in subsection (6) of this section the Minister of Economic Affairs and Communications shall immediately notify the European Commission and the Member States of the European Union thereof. In the absence of an opinion of the European Commission within a period of six months the term specified in subsection (4) shall be deemed to have been extended.
(8) The obligation to preserve the data provided for in subsections (2) and (3) of this section also applies to unsuccessful calls if those data are generated or processed upon providing telephone or mobile telephone services or telephone network or mobile telephone network services. The specified obligation to preserve data does not apply to call attempts.
(9) Upon preserving the data specified in subsections (2) and (3) of this section, a communications undertaking must ensure that:
1) the same quality, security and data protection requirements are met as those applicable to analogous data on the electronic communications network;
2) the data are protected against accidental or unlawful destruction, loss or alteration, unauthorised or unlawful storage, processing, access or disclosure;
3) necessary technical and organisational measures are in place to restrict access to the data;
4) no data revealing the content of the communication are preserved.
(10) The expenses related to the preserving or processing of the data specified in subsections (2) and (3) of this section shall not be compensated to communications undertakings.
(11) The data specified in subsections (2) and (3) of this section are forwarded to:
1) an investigative body, a surveillance agency, the Prosecutor’s Office or a court pursuant to the Code of Criminal Procedure;
2) a security authority;
3) the Data Protection Inspectorate, the Financial Supervision Authority, the Environmental Inspectorate, the Police and Border Guard Board, the Security Police Board and the Tax and Customs Board pursuant to the Code of Misdemeanour Procedure;
4) the Financial Supervision Authority pursuant to the Securities Market Act;
5) a court pursuant to the Code of Civil Procedure;
6) a surveillance agency in the cases provided for in the Organisation of the Defence Forces Act, the Taxation Act, the Police and Border Guard Act, the Weapons Act, the Strategic Goods Act, the Customs Act, the Witness Protection Act, the Security Act, the Imprisonment Act and the Aliens Act.


Estonia 10 years in the EU

Posted: May 1st, 2014 | Author: | Filed under: Estonia, european union, thoughts | No Comments »

Estonia celebrates today 10 years as a member of the European Union. Today, this seems not like a big thing anymore, which means that the celebrations are also rather muted, possibly because people have gotten so used to the idea that they consider it nothing special. In a way, there might also be less celebrations due to the flux the EU seems to be in, constantly, and the disappointment that membership of the EU did not mean an arrival to a permanent paradise, secure and free. Sure, Estonia has developed, but membership of EU (and NATO) has also meant the search of a new national goal. Although there have been sporadic attempts to define this new goals in technological advancement terms: the first State in a Cloud (most recently), search for the Estonian Nokia, e-voting experiments, these have been largely outward marketing exercises aimed at establishing Estonia as an indpendent country in the international stage, which have not really resonated that much with the general population.

Instead, some sort of paradigmatic shift is taking place, which was eloquently put to words by president Ilves in this year’s independence day speech “Mis toond on meid siia, see enam edasi ei vii.” (“this, which has brought us here, no longer takes us forward”), followed by prime minister Taavi Rõivas’ suggestion to focus on small narratives, rather than seek a new big one. Estonia has always depended on some big national narrative, so the lack of it is a test of the resilience (or antifragility?) of the Estonian state. If the leaders do not define a new national narrative, is it going to be defined by someone else? If yes, by whom? Perhaps we should satisfy ourselves with the thought that the Estonia is largely finished, mature state that only needs small tinkering in specific areas, but no overarching national narrative. However, we might also think that such stability means a quiet before the storm, that changing dynamics of the world will require new changes from us as well. 

It is interesting to look at how Estonia seems to view its role in the EU. There is almost two opposing extremes and no middle ground. There is a (pragmatic) view that as a small state we are never going to play an important role of the development or policies of the EU, simply because we lack the human resources, the deep knowledge gained by specialisation possible only in large countries, the capacity to speak on global topics due to our history. This view relegates Estonia among passive followers which should fall in line behind the power that is most useful for us (in terms of our own narrow national interests as defined by the ruling politicians). There are also others who state that Estonia must take the lead in the EU federalization process, these optimists (or utopists?) talk about Estonia punching way above its weight and hosting and managing the ‘upgrading’ of the EU to be like we want it to be. This view will probably be more visible within Estonia as we become closer to Estonian presidency of the Council of the EU in the first half of 2018, coinciding with the celebrations of 100 years of the Estonian state. Both the pessimistic passive and the optimistic active roles are somewhat extreme and the reality will fall somewhere between those two.

A discussion of 10 years in the EU would remain one-dimensional if one does not look at how Estonia has impacted the EU during these 10 years. From an economic development point of view, Estonia (and Latvia) have been the poster boys for austerity measures. Austerity regime would have been rather more difficult to sell in the EU without the example of Estonia’s ‘success’ in this. Also, the e-Stonia image is surely also benefitial for the EU that is trying (and failing) to regain competitiveness in order to preserve its social model. Estonia has probably given the US a slightly bigger voice inside the EU (it follows closely US foreign policy goals, president Ilves is essentially an American), has promoted the EU neighbourhood policy (and scepticism towards Russia). Estonia has been one of the better spenders of the EU structural funds (although one can of course debate whether all of the money has gone for legitimate purposes) for the upgrading of its economy and society. Also, Estonian membership has possibly stregthened the role and influence of the Nordic states in the EU, with which it has very good relations. But it has also highlighted the social chasm between rich and poor states, which has contributed to brain drain from Estonia for the benefit of the more established and developed member states, not to mention the pressures this has put on the generous social welfare models (as evidenced in the Viking and Laval cases in the ECJ).

Of course the impact of Estonia’s EU membership is something that is quite difficult to begin to analyse at such a short temporal distance, but these first ten years have shown to be ready for the unexpected. My personal hope for 2024 is that the positive impact of EU membership is more evenly distributed among the Estonian population and the situation of not only the elite has been considerably improved, but also that of the people belonging to various minorities.


The EU Funds What Member States Are Unwilling To: The Erasmus Master’s Degree Student Loan Guarantee Scheme

Posted: November 19th, 2013 | Author: | Filed under: education, european union | No Comments »

The following is an abbreviated and edited excerpt of my Master Thesis, defended last year, on the topic of free movement of studens within the EU. The excerpt is on the EU-level Erasmus+ Student Loan Scheme, which was approved by the European Parliament today. The issue relates in the grander scheme of things to the balancing of MS solidarity in the area of education and possibilities for a transfer union in the EU.

The Erasmus programme has been a success. Between 1998/1999 and 2008/2009 the number of students who participated in the Erasmus scheme of studying at least one semester of their studies abroad rose 104% (Wächter 2012). However, the impact of the Erasmus mobility programme is only limited, because students study abroad as a part of their studies in their home country, meaning that they will receive the diploma from their home university as well as majority of tuition there. This has prompted the Commission to propose to extend mobility advantages to also people who go to study a full course in another Member State.

As part of its proposal for the Erasmus for all programme, now renamed Erasmus+, which replaces the existing EU education mobility programmes, the Commission proposes to offer an EU-level loan guarantee facility for Master students who go to study in another European country. According to the Commission, the facility is needed because national loans are not portable across boundaries or are not available for Master level and private banks offer too expensive loans. The scheme works as guarantee offered by the European Union to the banks. In the proposal, the Commission estimates that nearly 12 000 Master students will make use of the possibility in 2014 when it will be established, reaching to over 67 000 in 2020, making it a total of 330 000 students. 25% of the overall budget of €19 billion will be used in the higher education sector.

The Commission’s proposal is a welcome one. If accepted by the European Parliament and the Council, it paves the way for a pan-European solution that is not too costly, because it is a loan guarantee scheme. Experience with a similar scheme operating in Estonia has provided modestly successful results, although a lot depends on the specific terms of the loans, maximum amount and repayment terms. In Estonia, there have been issues regarding repayments of the loans, forcing the guarantees to be realised by the banks and the government turning to courts to sue the mobile students. However, the benefits of the scheme seem to far outweigh the potential risks.

Similar loan guarantee schemes operate for example for SMEs within the Competitiveness and Innovation Framework Programme (2007 to 2013) as well as for film producers using the MEDIA Production Guarantee Fund within the MEDIA 2007 programme. These schemes cannot be compared with the breadth and the impact of the proposed European Stability Mechanism or the temporary European Financial Stability Facility, which are financially much more demanding and operate under different rules, but still represent a shift of financing from Member State to EU level. This will also be the case of the Erasmus Master’s degree student loan guarantee scheme.

In case it will be a success, it will be possible that more similar cost-sharing programmes will be introduced and expanded also to Bachelor studies. However, it can be questioned how large such a loan guarantee programme could be without it becoming similar to big transfer schemes such as the ESM. If a lot of students decide to utilise the scheme and its successors, then it will need to be funded in a substantially higher amount.

If the scheme will be a successful one, it should also provide assurances for Member States that a common solution on higher education funding is possible and perhaps at some point other areas of social support or funding for education will find their way to the EU level.

Perhaps this is the first step towards an US-style student loan and grant system, which has been successful in fuelling the higher education market there. That will be a matter for a more distant future. However, looking back at the humble beginning of the Erasmus programme, when it was still uncertain whether national laws would make it possible for universities to conduct Erasmus agreements (Lenaerts 1989), such a possibility seems no longer such a great leap of faith.

References:

  • Lenaerts, Koenraad, ERASMUS: Legal Basis and Implementation. European Community Law of Education, Bruno De Witte (ed), Nomos, Baden Baden, 1989, p. 123.
  • Wächter, Bernd and Irina Ferencz, Student Mobility in Europe: Recent Trends and Implications of Data Collection, in A Curaj et al (eds.), European Higher Education at the Crossroads: Between the Bologna Process and National Reforms, Springer Science+Business Media Dordrecht, 2012, p. 405.

Why it is not a good thing to have only one law school in Estonia

Posted: July 10th, 2013 | Author: | Filed under: education, Estonia, european union, human rights, law, thoughts, university | 1 Comment »

Disclaimer: I am currently employed by Tallinn Law School at Tallinn University of Technology.

Recently, a little fight broke up in the media between the Faculty of Law at University of Tartu (UT) and Tallinn University  (TLU) Law School, in which the Dean of the former claimed that TLU lacks resources and capacity to teach lawyers. The latter of course responded and others have chimed in, including Ministry of Education and my own boss from Tallinn Law School at Tallinn University of Technology (TUT).

The backstory is a bit long and complicated: The Faculty of Law of University of Tartu has enjoyed a dominant position among law schools in Estonia. It used to be the only law school in Estonia before Estonia re-gained its independence, and is still considered by many as the only ‘true’ law school in Estonia. In many ways it is, as although many private law schools were established in the 1990s, these have not survived various financial and administrative challenges (some of which were possibly orchestrated by University of Tartu and Ministry of Education and Research). However, two private ‘new’ law schools merged with the other bigger public universities and thus pose a greater potential challenge for UT. This is the way I ended up working at TUT (the law school was based on the law school at now defunct American-style, international-oriented Concordia International University Estonia). TLU ended up getting merged with Academy Nord, politically well connected more widely oriented law school.

The current higher education policy favors consolidation and avoidance of duplication. After the financing reform of higher education, ‘responsibility’ of teaching law was assigned to UT. TUT and TLU thus were not supposed to teach law in Estonian and tuition-free. Our law school sensibly chose to offer studies in English, with some Estonian law courses in Estonian (which has been the strength of our law school). TLU, however, is admitting 90 students this year to study law tuition-free, which has ticked off both UT and Ministry. Some of their concern regarding capacity and capability of TLU is legitimate, but mostly TLU goes against government policy.

But is it a good policy to have only one strong law school in Estonia? The obvious argument is that Estonia with 1.3 million inhabitants is unable to support more than one high quality law school. Arguments of efficiency and most rational use of public funds are used to argue that only UT should teach law. This is the way it has been previously (and in many fields is still today).

However, what is the impact of the dominance of one law school?

Everyone knows everyone. Estonian legal community is already incredibly small. In a situation where almost all of the practicing lawyers, judges, prosecutors, many politicians and policymakers, know each other from the university, it means that important legal decisions might not be made based on justice, but based on other things such as personal friendships or animosity. Former Chief Justice of the Supreme Court Märt Rask has stated that there are serious issues regarding the Tartu Court House, into where both judges and prosecutors work. Mr Rask claimed that judges and prosecutors had become so familiarised working in the same building that judges no longer asked prosecutors any questions during trials. Indeed, when one new judge challenged this practice, prosecutors got angry at the judge. Having more than one law school would help to alleviate this problem somewhat (and not putting judges and prosecutors into the same building as well).

All students study under the same faculty members. If there is only one professor of criminal law, or labour law or European law, then this means that students are exposed to only one point of view. Professors and instructors are not machines, they are human beings with specific leanings and understandings. Some are good, some are bad, some emphasise certain things, some other things. Having only one person teaching all lawyers legal principles and approached in any field is a huge incentive for groupthink. This is compounded by the lack of problem-based learning and overreliance on lectures.

Lack of diversity in terms of schools of thought and development directions. There is a difference in what kind of values are instilled into students at law schools. There are law schools that value legal positivism, there are more liberal law schools. There is a difference in how law is taught at different universities as well as what is emphasised. The Estonian educational authorities seem to think that there is only one way and that this role can only be played by UT. This means that the institutional choices made by this one law school apply for all of Estonia. For example, the internationalisation efforts of UT are rather limited in the field of law. They teach exclusively in Estonian and Estonians, their faculty is Estonian (excluding a few visiting scholars). Thus, if they were the only law school in Estonia, Estonia would be rather blank in the international legal space.

Lack of diversity leads to stagnation and poor quality of teaching and learning. So having only one law school would lead to further diminishing of the status of legal education and law in general.

The remedy would be to be more lenient regarding diversity in the area of teaching and research in law in which international competition is limited (it is hardly likely that any other university outside Estonia gets involved with Estonian law), supporting more universities to offer studies in Estonian and about Estonian legal system. This means that state educational policy must change considerably, which is extremely unlikely at the moment. The only other solution is to study abroad and hope that students return to Estonia, but this takes much more resources from the society and skills and knowledge acquired from other jurisdictions can only be applied in Estonia to a limited degree.

It would be interesting to see a more detailed analysis on the impact that havinga domionant law school has for the society in terms of protection of human rights (especially procedural rights), the legal profession in the country and the quality of legal education. Sadly, no-one has looked into this, because there are very few countries in a similar situation.


The impact of technology on the right to privacy

Posted: July 3rd, 2013 | Author: | Filed under: european union, human rights, law, privacy | No Comments »

In 1890 Louis Brandeis and Samuel Warren published in the Harvard Law Review an article called “The Right to Privacy”. They wrote:

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life ; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.””

It was the dawn of the age of the mass circulation gossip newspapers, aided by the improvements of the printing press and the invention of photography. This technological change prompted Brandeis and Warren to write their article and to call for legal protection of the right to privacy, which had already been enacted in France in 1868 (“11. Toute publication dans un écrit périodique relative à un fait de la vie privée constitue une contravention punie d’un amende de cinq cent francs.” Rivière, Codes Français et Lois Usuelles. App. Code Pen., p. 20.). In the article, Brandeis and Warren set out many of the principles that we follow to this day. Also, they called for both tort action with substantial compensation, injunctions as well as possible criminal sanctions for the violation of this right. Thus the right to privacy was born as a reaction to specific technological changes.

In the 1970s and 80s, when mass computing and databases had started to become prevalent, work started on international regulation of the right to privacy in the specific context. This resulted in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (also known simply as Convention 108). The Convention entered into force in 1985 and has been ratified by 45 European states and Uruguay, including most recently by Russia in May 2013. This forward-looking document is the foundation of European rules on data protection. It sets the main principles related to data processing, including rights of individuals. Thus Europe already had before IT became commonplace a set of rules to adhere to.

In the European Union, data protection has recieved more attention than almost any other fundamental right. It is one of the more strongly protected rights in the EU level, having both its own Article in the founding treaties (since Treaty of Lisbon), strong protection in the Charter of Fundamental Rights of the EU, which became binding in 2009 together with the ToL, and a large body of secondary EU law (mostly directives), already since 1995’s Data Protection Directive. Again, these strong protections have been put to place as a consequence of advances in technology.

The fact that data has been protected in such a high degree in Europe and at the European level, has facilitated cross-border transmission of data, without which there would be a quagmire of different rules to follow. The EU data protection rules are currently being updated to react to the spreading of business models which involve trading with personal data (by mostly American companies such as Facebook, Google, Apple, Yahoo and Microsoft). These include the much debated right to be forgotten and the right of data portability, which means that you could move your data from one social media service provider to another, preventing customer lock-in.

With the NSA snooping scandal, an aspect of privacy has come about that had been forgotten by many. Although the focus has been on the private sector lately, it has become clear that the governments are more than ever capable and interested in finding out what people do and say online. No-one is off-limits, it appears.

In much of the same way as Louis Brandeis and Samuel Warren denounced the activities of gossip rags, it is important that there is a strong reaction in the form of legislation for the kind of invasion of privacy that has happened now. The answer is not to claim that privacy is dead (linked text in Estonian), but the opposite, rules and oversight must be made even stronger as a reaction to technological advances, just as we did when photography was invented. Those rules have to be smart and take into account the changing technological paradigm. Ultimately mankind can be successful if it can make technology work for it, rather than using it as an excuse to decrease human rights standards. We have outlawed reproductive cloning of human beings, eugenic practices and many other things that are technologically possible, but against the values on which our society is based on. So why cannot we keep 100% privacy in the digital age?

Of course the right to privacy as applied to Facebook is somewhat different than as applied to the tabloid newspapers. The underlying philosophical and ethical values are similar, but their application can vary. The individual has become much more empowered to control information about him or her than ever before. And that is a positive thing. Harvard scholars did recently a literature review on the privacy practices of the younger generation, and found surprisingly that privacy is as valuable as ever:

“The prevailing discourse around youth and privacy is built on the assumption that young people don’t care about their privacy because they post so much personal information online. The implication is that posting personal information online puts them at risk from marketers, pedophiles, future employers, and so on. Thus, policy and technical solutions are proposed that presume that young would not put personal information online if they understood the consequences.

However, our review of the literature suggests that young people care deeply about privacy, particularly with regard to parents and teachers viewing personal information. Young people are heavily monitored at home, at school, and in public by a variety of surveillance technologies. Children and teenagers want private spaces for socialization, exploration, and experimentation, away from adult eyes. Posting personal information online is a way for youth to express themselves, connect with peers, increase popularity, and bond with friends and members of peer groups. Subsequently, young people want to be able to restrict information provided online in a nuanced and granular way.”

The above research suggest we should not be worried about privacy becoming unimportant in the future, but rather how to guarantee that we can control the privacy of our online lives. This should include being informed about when and what the government (or other governments) are able to know about us and what are the oversight mechanisms that protect us from it. The national intelligence community should be also interested in this, because otherwise they will be faced with another snowden, another wikileaks every couple of years. If people are in general terms aware of what, why and how is being gathered and have reassurances about sufficient oversight then Edward Snowden’s revelations would not have had much news value. If, however, it will be business as usual, more revelations are bound to take place.

P.S. In a way governments, especially the US, have fallen victims of the technological change even more than any individual. Wikileaks and Snowden revelations have been deeply embarrassing and probably hugely damaging. So the governments too must decide whether aiming for more secrecy is viable or should openness and transparency be better in the long run.


European Stability Mechanism

Posted: May 8th, 2012 | Author: | Filed under: Estonia, european union, law, thoughts | No Comments »

Currently the Estonian Supreme Court is hearing arguments for and against the agreement establishing the European Stability Mechanism. It was the Estonian Chancellor of Justice who took the extraordinary step of challenging the constitutionality of the part of the treaty which says that the funds could be distributed from the mechanism without approval from the Estonian Parliament (due to the qualified majority system utilised in order to prevent a few smaller states blocking the vote). Both sides have good arguments, but few seem to realise the inevitability of something like the ESM for the future of Europe. The government is really between a rock and a hard place. It has to argue for the ESM, but cannot use a lot of the argumentation that would be politically difficult. The Chancellor can be much more open, as well as the independent legal experts who have submitted their opionions.

The EU is not in a great shape. It faced huge challenges to remain competitive and try to preserve at least part of the welfare state, to deal with aging population, integration of migrants etc. Now, the financial crises has highlighted both the financial and political faults within the system. Scrapping the system is not an option unless people are willing to suffer a major setback to European and global stability and prosperity, so compromises have to be made.

The European Union must become a transfer union. This means that money needs to flow automatically from richer countries to poorer member states (the way it does in the US). Without a transfer union, we will be permanently in the crisis mode and we will have serious problems preserving not only the euro, but the integration project as a whole. Therefore it is inevitable to have a transfer union, which facilitates the movement of resources automatically from the well-off parts of Europe to less well-off parts. We currently have some transfer through the EU budget (via the structural funds), but those sums are too small, too targeted and too inflexible although they are increasingly being used to prop up the economies of states in trouble.

There are few options to enable a stronger transfer union:

  • increase the amount of EU budget and allow the EU to re-distribute wealth in a greater amount. This will probably not work because of the limits and conditions of EU funding;
  • bring a part of taxes, medical and unemployment insurance, education funding and other key social areas to an EU level. This would mean an EU tax of some sort as well as pan-European unemployment and medical insurance schemes. The easiest would be the unemployment insurance, but it might not be enough;
  • create a bulletproof bail-out mechanism, which helps out those who are in need (not only member states, but perhaps their banks and other big businesses);
  • create so-called euro-bonds to fund the bailouts or structural fund projects.

All of these steps will be unpopular for those who pay, unless the politicians are able to explain to people that the EU is not workable in any other way.

This brings us back to the Estonian constitutional debate. A transfer union as such is probably not supported by the current interpretation of the Constitution. There is a fundamental choice that the that will have to made: whether they support the changing of the interpretation of the Constitution to accommodate the transfer union (i.e. lose the parliament’s control over certain parts of the state budget). All other issues are technicalities in my opinion (not insignificant ones, but still technicalities). It was unfortunate political reality that the ESM treaty is not agreed within the EU framework, but that does not stop it becoming EU law.

The European Union is unique. Therefore there is room for creativity regarding interpretation of EU law. There are few established rules, but plenty of legal and political choices to be made, new doctrines to be created. I do hope that the choices made by the Estonian government and Supreme Court will be based on a broad vision of the future of Europe. I hope the decision will be one that established a clear doctrine to be used in future cases involving the relationship of EU law and the Estonian Constitution (of which there is bound to be many).


ACTA, innovation and human rights

Posted: February 8th, 2012 | Author: | Filed under: Estonia, european union, human rights, politics, things that suck, thoughts | No Comments »

The Estonian Prime Minister Andrus Ansip today in the Estonian Parliament ridiculed people who are against the controversial Anti-Counterfeiting Trade Agreement (ACTA). He accused them of paranoia and suggested they wear tinfoil hats and that they have eaten some bad seeds. This seems rather unusual for a top European politician, while Polish and Czech governments are reconsidering their support of ACTA.

For me this is not about paranoia or mob-mentality trying to ruin a perfectly reasonable international agreement. There is a legitimate concern that ACTA, while strengthening the global protections against counterfeiting, will also result in less protections for some of the most fundamental human rights. There have been also people like Linnar Viik saying that rather than helping young new startups, it might stifle them in a difficult-to-navigate labyrinth of intellectual property rights. Instead of fostering innovation and creativity, ACTA might instead will be used to try to fight innovation and preserve business models, which are long overdue to be dismantled. Of course, it is difficult to say what will be the actual impact of ACTA, because much of it depends on the interpretation and implementation of the agreement.

Intellectual property rights are a legal construct, created by people for people for specific goals (to provide creators and inventors incentives to create and invent). Thye give certain exclusive rights (monopolies) to use and licence etc. However, any intellectual property reform will be fought by the monopolies that have been created as they will lose their business even if different system might make more sense for the society as a whole. I refuse to believe that if we were to start afresh with the IPR framework, we would end up with anything remotely similar to the terrible mess we are in today. As a lawyer I feel sorry for my profession as instead of trying to enable and support actual innovation and creation (which in today’s world is usually built upon exisiting technologies or art) we as lawyers mostly work to try to prevent and stop the spread of technology. Fortunately there are some like Karmen Turk or other people at Estonian law firms who see that the IPR system needs reform. (A sidenote: Tallinn Law School will begin from Autumn 2012 with a new Master programme in Law and Technology where these issues can be studied and researched in depth.)

Human rights are in a way very similar to intellectual property rights. Both got started internationally after WWII and reached real global acceptance in the 90s after the collapse of the Soviet Union. After that time both human rights and intellectual property rights have spread internationally all over the globe. However, IPR are usually supported and promoted by multinational corporations whereas human rights do not have such wealthy and organised proponents. At the same time, human rights are at least in most countries considered far more fundamental than IPR.

Intellectual property rights can be also considered human rights, as right to property is also recognised as a human right. However, the case-law of European Court of Human Rights so far has emphasised other rights such as freedom of expression or freedom of speech as more fundamental to the functioning of a democratic society than property rights. With ACTA this balance is under threat.

If there is a choice to have ACTA or not have it then it is for sure better to not have it. What we would rather need more is a global freedom of movement of information agreement, protecting internet from unreasonable interference from states. The European Commission a few years ago proposed to add free movement of knowledge to the EU’s current four fundamental economic freedoms (goods, persons, services, capital). I think that would do much more for both European competitiveness as well as helping creativity and innovation. Sadly, not much has been heard about this idea after 2008.


Uue Euroopa poole

Posted: January 26th, 2012 | Author: | Filed under: eesti keeles, Estonia, european union, law, thoughts | No Comments »

I publish here my article from 5 December 2011 on the future developments of the EU, as published in the Estonian daily Postimees. It is available online behind a pay-wall.

Uue Euroopa poole

Euroopa Liidu praeguses olukorras peegelduvad nii poliitilise juhtimise nõrkus kui ka demokraatliku legitiimsuse kriisi ilmingud, kirjutab Kari Käsper.

Kriisiajad on Euroopa Liidu valitsemise osas asjad selgemaks löönud: kõik näevad, et kui tulevad halvad ajad, vaadatakse ikkagi Angela Merkeli ja Nicolas Sarkozy poole. Unustatud on Euroopa institutsioonid ning olemasolevad valitsemishoovad.

EL justkui toimiks mitmel erineval tasandil: enamikus valdkondades ja headel kasvuaegadel toimib riigiülene õigusloome hästi, samas nõrgalt koordineeritud valdkondades on eriti praegusel kriitilisel hetkel väga selgelt näha poliitilise mugavustegevuse või pigem tegevusetuse tulemusi.

Põhimõtteliselt paistavad käimasoleva kriisi tagant poliitilise koordineerimise puudumise kõrvad. Probleemid, mida algses euroeufoorias 1990ndatel ja veel ka enne kriisi algust ignoreeriti, ei olegi ignoreerimise tulemusel kadunud, vaid on võimendunud. Kogu ELi toimimine on muutunud nii keeruliseks, et sellest ei saa alati aru selles osalevad poliitikudki, meediast või kodanikest rääkimata.

Praegune eurokriis on seetõttu ka sügavam: paanika levib kiiremini kui kunagi varem. Seda süvendab peamiselt ingliskeelse meedia ignorantsus ja vähene huvi ELi toimimise vastu. Britid teatavasti ei ole ELi tuumikus ning ei kasuta mitmeid ELi hüvesid nagu euroraha või Schengen.

Seega pole Mandri-Euroopa poliitikutel sageli võimalustki, sest turud reageerivad (üle) just globaalse ingliskeelse info põhjal, mida produtseeritakse peamiselt euroskeptilises Londonis.

Samas oleks vale väita, et tegemist on vaid ajakirjandusliku paanika, ebaõiglaste ja halvasti informeeritud finantsturgude ja ebapädevate reitinguagentuuride koosmõjus tekkinud probleemidega. Need on vaid süptomid palju laiemale ja sügavamale küsimusele, milleks on ELi valitsemine ja selle demokraatlik legitiimsus.

Just riigiülese valitsemise ja õigussüsteemi nõrkused on finantskriisis välja löönud. ELi juhtimise ebastabiilsus ja demokraatliku legitiimsuse vähesus koos sellega kaasnenud rahva kaugenemisega valitsemisest on peamised põhjused, miks ülemaailmne finantskriis on viinud eurokriisini.

Tegemist on poliitilise juhtimiskriisiga: Merkel ja Sarkozy ei ole Kohl ja Mitterrand. Mitmed mõtlejad, sh Jürgen Habermas on viidanud sellele, et tänapäeva Euroopa poliitiliste juhtide generatsioon ei taha või ei oska Euroopa projekti hingega edendada, sest neil puudub Teise maailmasõja kogemus ning neile on Euroopa projekt tähendanud eelkõige tehnilist ja juriidilist laadi riigiülest koostööd, kompromisside tegemist ja muud sellist, mida on rahvale keeruline selgitada.

Sellega seoses on need riigijuhid nõrgestanud riigiüleste institutsioonide tööd (Euroopa Komisjonist on saanud paljuski kõrvaltvaataja, Euroopa Parlament on praeguses kriisis täielikult unustatud) ning kogu euroala päästetegevust koordineeritakse Euroopa Ülemkogu kaudu, mis ei ole ega olnud kunagi mõeldud demokraatlikuks juhtorganiks.

Samuti on tegemist demokraatliku legitiimsuse kriisiga. Olukorras, kus ELi poliitikud ei ole olnud valmis looma üleeuroopalisi erakondi või kus rahvuslik populism on kindlaim hääletooja, ei ole poliitikutel praeguses olukorras kedagi süüdistada peale iseendi.

Selle asemel et selgitada keerulise ELi väga konkreetseid ja kättesaadavaid hüvesid, on mindud lihtsama vastupanu teed: ebapopulaarsed otsused on sageli tehtud ELi kaudu ning seega ELi legitiimsust veelgi õõnestatud.

Kui paljud Eestigi poliitikutest on ebapopulaarseid otsuseid põhjendanud ELi direktiivide või määrustega, mille poolt nad samas ise ELi institutsioonides hääletasid? Ka ELi institutsioonide demokraatlik legitiimsus on puudulik eelkõige liikmesriikide tegevuse tõttu.

Euroopa Parlament, millel oleks potentsiaal olla maailma võimsaim seadusandlik kogu, ei ole seda positsiooni saavutanud seetõttu, et inimesed, keda parteid sinna esitavad, on sageli teisejärgulised poliitikud, kes saadetakse riigisisesest poliitikast eest ära või siis loorberitele puhkama.

Ka Euroopa Parlamendi valimistel pole põhiküsimus, millised on selle või teise inimese vaated või programm ELi pädevusvaldkondades või kuidas Eesti elanikke neis küsimustes esindatakse, vaid pigem on tegemist siseriikliku poliitmängu sideshow’ga.

Sama kordub erinevatel viisidel teistes riikides ning seetõttu ei osaleta Euroopa Parlamendi valimistel sugugi nii palju kui selle institutsiooni roll igapäevaelus eeldaks. Teine ELi tasandi seadusandlik institutsioon, ELi nõukogu, kannatab teistsugust laadi legitiimsuse probleemide all.

Ministrid, kes nõukogus oma riigi eest siduvalt hääletavad, on siseriiklikus süsteemis täidesaatva võimu esindajad. Üha enamate otsustusvaldkondade liikumine riigilt ELile (mis on olnud enamikul juhtudel hädavajalik) on seega kaasa toonud riigi sees valitsuse kui seadusandja rolli suurenemise ja liikmesriigi parlamendi kui ainsa legitiimse otse valitud esinduskoja rolli vähenemise, mille üle tasub igal kodanikul muret tunda.

Kas ja kui suurt poliitilist kontrolli nende otsuste üle liikmesriigi parlament teostab, on iga riigi enda küsimus, aga häid lahendusi ei tundu olemas olevat. Nõukogus on sageli vaja kiiresti otsuseid teha ja kompromisse leida, mistõttu liikmesriigi parlamendi heakskiitu sellele on praktikas raske saavutada.

Nõukogule on lisaks ette heidetud ka otsustusprotsessi läbipaistmatust. Lahendus ei ole ELi organiseeritud või organiseerimatu laialiminek või siis vähemalt oluline liikumine poliitiliselt koostöölt tagasi, vaid majanduslikule koostööle.

See ei ole võimalik mitmel põhjusel: viimase kahekümne aasta jooksul on üles kasvanud Timothy Garton Ashi poolt «EasyJeti Euroopaks» tituleeritut hindav põlvkond, mille jaoks saavutused nagu euro, piirikontrolli puudumine, võimalus minna tööle soovitud liikmesriiki on iseenesestmõistetav elu osa, mida ei lasta kellelgi enam käest võtta.

Rahvusriik ei ole lahendus, sest rahvusriikide Euroopa oleks veelgi hullem nii sotsiaalses, kultuurilises kui ka majanduslikus mõttes. See tähendaks ka totaalset tagasiminekut Euroopa demokraatlikus valitsemises ja oleks maailmapoliitiliselt mitu korda hävitavam sündmus kui 11. september 2001 või Iraagi ja Afganistani sõjad.

Euroopa annaks vabatahtlikult käest võimaluse mõjutada maailma arenguid meile sobivas suunas ja tooks niimoodi kaasa uue globaalse ebastabiilsuse. Mida siis ette võtta? Tõenäoliselt seisneb lahendus kahes võimalikus variandis, mis mõlemad eeldavad senisest rohkem ja tugevamat Euroopat.

Üks variant on Euroopale demokraatlikku legitiimsust luua läbi seni kaasamata jäänud liikmesriikide parlamentide. See tähendaks, et neile tuleb lisada oluliselt suurem ELi dimensioon ning nii parteid kui juhtpoliitikud peavad Euroopa teemasid oskama ja tahtma kodanikele selgitada.

Näiteks parlamentide Euroopa asjade komisjonidest võiks moodustuda ELi tasandil täiendav demokraatlik seadusandja (näiteks Euroopa Parlamendi teise kojana). Teine, rohkem muudatusi ja poliitikutelt julgust nõudev variant oleks demokratiseerimine ELi tasandil läbi nn Euroopa Ühendriikide tekke.

See tähendaks üleeuroopalist poliitilist ruumi, meediat ja muud sellist, aga ka ELi kodanike suuremat eurooplasetunnet. Pikemas perspektiivis oleks teine lahendus jätkusuutlikum ja tõhusam, aga realistlikum tundub esimene variant. ELi arengut on 1950ndatest alates iseloomustanud kriisid, millele on järgnenud suurem lõimumine ja laienemine.

Seega ei maksa käimasoleva kriisi tõttu pead kaotada ja paanikahoos rumalusi teha. Pigem tuleks olukorrale läheneda pragmaatiliselt, ja enamik Eestigi poliitikuid on adunud, et Eesti huvides on tugev ja demokraatlik Euroopa Liit, mis lähtub õigusriigi põhimõttest. Seda eriti seetõttu, et oleme suhteliselt unikaalselt Euroopas tunnistanud ELi õiguse ühepoolset ülimuslikkust oma põhiseaduse suhtes.

Kari Käsper on Tallinna Tehnikaülikooli õiguse instituudi Jean Monnet’ Euroopa õiguse õppetooli lektor.

5 mõtet

• Euroopa võlakriisi põhjuste puhul oleks vale rääkida ajakirjanduslikust paanikast, ebaõiglastest finantsturgudest ja ebapädevatest reitinguagentuuridest. Need on vaid palju laiemate ja sügavamate probleemide sümptomid.

• ELi riigijuhid on nõrgestanud riigiüleseid institutsioone. Kogu euroala päästetegevust koordineeritakse Euroopa Ülemkogu kaudu, mis ei ole ega ole olnud kunagi mõeldud demokraatlikuks juhtorganiks.

• Tagasipöördumine rahvusriikide Euroopasse tähendaks ka totaalset tagasiminekut Euroopa demokraatlikus valitsemises ja oleks maailmapoliitiliselt mitu korda hävitavam sündmus kui kaksiktornide langemine või Iraagi ja Afganistani sõjad.

• Liikmesriikide parlamentidele tuleks lisada oluliselt suurem ELi dimensioon ning nii parteid kui juhtpoliitikud peavad Euroopa teemasid oskama ja tahtma kodanikele selgitada.

• Praegusele olukorrale tuleks läheneda pragmaatiliselt. Meie huvides on tugev ja demokraatlik Euroopa Liit, mis lähtub õigusriigi põhimõttest.


Estonian Higher Education Reform and EU internal market free movement rules

Posted: November 24th, 2011 | Author: | Filed under: education, Estonia, european union, university | No Comments »

There has been a lot of debate in the Estonian society regarding the draft higher education reform proposal which is currently considered by the Parliament. It is based on free education for all competent students, a rather populist election promise of the conservative coalition party. There have been numerous concerns raised regarding the draft, ranging from it actually limiting access to education and hurting quality, but it seems that these arguments do not stand in the face of determination of the current Minister of Education and Research, Jaak Aaviksoo (the same guy who is responsible for the horrible Freedom Monument on Freedom Square).

The basic aspects of the reform are reform of funding of universities by making new result oriented agreements for receiving state funding (which is a good thing) and banning universities from taking any tuition fees from students who complete their studies in due course (which is a bad thing in my opinion unless the state is willing to provide the same amount of financing students paid before). Thus, funding of higher education is decreased.

The issue I wanted to point out regarding the reform relates to the fact that only studies that take place in Estonian are funded by the state. This language based restriction seems to me to be in contradiction to free movement rules of the EU (and I doubt that it could be objectively justified in this scale). The European Court of Justice, while agreeing that every Member State has the right to organise educational system in their countries, has stated that they must observe EU law when doing so:

The Member States are thus free to opt for an education system based on free access – without restriction on the number of students who may register – or for a system based on controlled access in which the students are selected. However, where they opt for one of those systems or for a combination of them, the rules of the chosen system must comply with European Union law and, in particular, the principle of non-discrimination on grounds of nationality. (C-73/08 Bressol, p 29)

In the Bressol case Belgium limited access to medical or paramedical programmes to only residents of Belgium, because a lot of students from other EU countries wanted to study there. The ECJ found that this was indirect discrimination based on nationality and this contrary to the Directive 2004/38/EC guaranteeing free movement rights. The court was presented several justifications for this by Belgium, most notably a justification based on risk for public health, which was ultimately left for the national court to decide.

It is correct that the proposed Estonian system is pretty unique and comparable only to the Czech Republic where free higher education is available if it is in the Czech language (based on studyineurope.eu). Although there currently are no further judgments on this from the ECJ, it is something that should be looked at. Language-based discrimination in tuition fees could be found not justified if the actual content of studies are essentially similar.


A new constitution for Estonia

Posted: August 29th, 2011 | Author: | Filed under: Estonia, european union, human rights, law, philosophy, politics, thoughts | 1 Comment »

I do not agree with those who say that Estonia’s current constitution is great for us and nothing should be changed. I think the opposite is true: a new, modern constitution would give more confidence and stability in the otherwise rapidly changing times. A new constitution that is made not out of necessity, but as an opportunity to kickstart Estonia’s development.

The constitution was drafted in almost 20 years ago, in a completly different set of circumstances. Accession to the EU was not on anyone’s minds (nor did the EU exist in its today’s form), the understanding and content of several human rights provisions have been altered, etc. The world around us has changed, and Estonia has changed even more dramatically.

The Estonian constitution has been for me, and I suspect for most Estonians, the most fundamental basis for the existence of the Estonian state. I cannot really remember the first time I read it, but it was during school, and I think it was one of the things that made me decide to study law, instead of anything else. The constitution sets out clearly and powerfully why we have the state and what it does. I was most impressed with the Bill of Rights section, which I thought was a brilliant thing to have. Indeed, I was not and am still not so much interested in the institutions the constitution created, but rather the principles it provides.

Estonia is a part of the EU and this is not reflected well in the constitution. The constitution suffered its heaviest blow with the 2004 Amendment Act and its subsequent interpretation by the Estonian Supreme Court. Today, it is no longer clear to which extent the constitution applies in case it is in conflict with an EU legal act. A new Constitution should state more clearly and confidently the basis according to which Estonia belongs to the EU, and not only that, but the way it operates in today’s multilevel governance framework. This not only applies to the EU level, but also to the relationship between the state level and local governments. The latter subject (i.e. local government functions and their financing) have been one of the most contentious issues in Estonian politics for a long time. Therefore my first proposal would be to describe in a chapter the role of the Estonian state in this framework. The current constitution largely ignores the fact that governance is no longer limited to a single state entity, but is much larger concept.

The Bill of Rights needs updating. There have been many changes in recent decades in the understanding and development of human rights, including for example data protection rights. The family rights section should also be expanded to be more clearly inclusive of all types of relationships. For example, although the current constitution does not prohibit same-sex marriages, these relationships should be more clearly protected. A good, but not perfect, example could be found in the EU’s Charter of Fundamental Rights.

The provisions relating to the nation state should be reviewed. The constitution contradicts itself by providing those who are of Estonian nationality preferential treatment. The preservation of the Estonian nation in the preamble is one of the things that should go, and better protection be afforded to minorities. Multiple citizenship should be clarified in the constitution, the current blanket ban is unfair and dumb. The constitution would provide an opportunity for a truly new societal agreement to involve in the governance of the state also those who have been left out so far (ethnic Russians and other marginalised minorities) and move Estonia forward in the democratic path.

A few other things that I would also rather see changed:

1. Abolish compulsory military service. It has no place in today’s society: it serves no legitimate defence need and is burdensome for the individuals from the liberty perspective as well as the society as a whole.

2. Add innovative  things that pave the way for success, for example the right to access to Internet and the principle of Open Data.

The rules that govern us determine where we go as a society. I think there should be more discussion in Estonia on the most fundamental of these rules, especially on the eve of the 20th anniversary of the Estonian constitution next year. Let’s face it: the current constitution and life in Estonia today have grown apart and need to be re-aligned. Otherwise we will see in future more and more incredible feats of teleological interpretation, which interpret a clause in the constitution to say the exact opposite of its text and that is not good.