On 30th November, 2018 I wrote to Vice President Ansip of the European Union  on behalf of over fifty NGOs from all parts of the world, including from 26 of the 28 Member States of the EU. The letter addressed major deficiencies in the draft e-Privacy Regulation making its way through the legislative processes. Right now it is stuck at the level of the Council of Ministers. That is where national Governments are directly involved.

Two days ago I received a reply  from Vice President Ansip. It is very disappointing but I take comfort from the fact that more and more national Governments appear to be becoming convinced of the draft’s shortcomings. Specifically a growing number seem to be aware of faults that will put children in danger. They are gearing up to address those faults and children’s groups everywhere must continue to encourage them to look for an acceptable solution.

Because things are moving very fast in Brussels I have today sent a reply to the Vice President’s letter. I won’t repeat the contents here. You can download it.

I have  sent this blog to every signatory of the November letter suggesting they might think about writing again to the relevant people in their national governments or others with influence, to continue pressing the case for an explicit carve out to be inserted into an Article of the Regulation in order to maintain current child protection standards.

Such a carve out could be achieved in one of two ways.

A clause could be inserted into an Article in the e-Privacy Regulation making it clear that where providers of electronic communications services, sometimes referred to as “over the top services”, take measures to detect the presence or exchange of child sex abuse materials, with a view to securing their deletion and reporting, or where measures are taken to detect other forms of illegal abusive behaviour towards children, the Regulation does not apply therefore such measures continue to be lawful.

Alternatively, steps taken by electronic communication service providers to detect the presence or exchange of child sex abuse materials,  with a view to securing their deletion and reporting, or taken to detect other forms of illegal abusive behaviour towards children, could be brought within scope by making clear businesses are allowed to process metadata and communications data for such purposes without first having to obtain the consent of the end user. In addition, it should be made explicit that any data obtained in this way cannot be used or further processed for any commercial or other reason.

For good measure I am also here providing a link to a letter released by the UK Government just before Christmas.  I don’t think it has been picked up elsewhere. With Brexit mayhem approaching its climax it’s hard to get a word in edgeways.

While it discusses a range of issues, in relation to child sex abuse material and other threats to children the UK Government expresses exactly the same sentiments as all the children’s groups did in the November letter. Look in particular at what it says  about why derogation is not the answer.