Joe McNamee “Our Open Web Fellow is helping us bring practical understanding to the political debate.”

Joe McNamee has spent most of his career working on telecom and internet policy issues. He is the Executive Director of European Digital Rights (EDRi), an association of civil and human rights organizations from across Europe that defends citizens’ rights and freedoms in the digital environment. EDRi focuses on data protection, surveillance, copyright, and network neutrality — analyzing policies and their implications, making recommendations, and coordinating international activism. Previously, Joe worked in public affairs, representing trade associations and corporations in their communications with European Union institutions, as well as running several projects directly for the European Commission. Currently, EDRi hosts a Ford-Mozilla Open Web Fellow.

Evidence

Joe’s story

I’m wondering if you could start by telling me a bit about your work.

My name is Joe McNamee, working with European Digital Rights (EDRi), where I’ve been working for the past seven-and-a-half years. I joined EDRi at a time when there were no digital rights activists at all working in Brussels on policy-making in EU institutions.

Since then, EDRi has grown to have a number of staff, interns and, now, a Mozilla Web Fellow, Sid Rao. Unfortunately, the number of issues that are coming up for civil rights in the online environment are growing faster than civil society can grow.

At the moment, we are faced with a variety of proposals launched ostensibly to defend  security and fight terrorism which, obviously, interfere with freedom of communication and privacy. We also have a new legislation proposed last week on privacy in the electronic communications space.

We have trade agreements, such as CETA, the EU-Canada trade deal that has recently been approved, and which have significance also for  data protection and issues like copyright.

We also have a very scary copyright directive, currently being discussed in the EU institutions, which redefines hosting provider liability. That would mean hosting providers would become directly liable for any copyright infringements of their customers. There would be mandatory upload filtering — requiring hosting companies to filter everything that is uploaded to their services in order to remove content. Not content that is illegal, but content that has been identified by rights holders!

Separately, there’s a wave of proposed voluntary measures so that internet companies can police the internet for hate speech, fake news, copyright infringements, and so on. That’s obviously even more challenging than the legislative proposals, because they are  unaccountable and very difficult to challenge in the courts.

If the a government adopts an unreasonable legislative proposal, then that law can be taken to court and is subject to safeguards, like constitutions, conventions, and charters. But private companies are usually not directly bound by such instruments. So, if a private company decides to do something “voluntarily” that would be illegal if required by law (such as censoring legal speech), this will not necessarily be illegal — and more difficult to challenge in court.

The number of digital rights proposals and initiatives is growing very quickly. Seven years ago, I was alone in the office and was busy. Now now I have an energetic and hard-working team that has grown continually — and we’re all a lot more busy.

Thinking about this work, can you hone in on a specific example of a time when you felt a sense of success?

The end of ACTA, the Anti-Counterfeiting Trade Agreement was a big moment for us. We also run the campaign to defend Net Neutrality in Europe and we now have a meaningful Net Neutrality law in Europe. In principle, our law is more robust than the always-precarious situation in the U.S., which relies on the FCC and which is now under significantly more threat. We also had an extraordinary success in the adoption of the EU’s General Data Protection Regulation.

How about an example of a challenge? That could be a recurring, wicked problem, or just a challenge that’s top of mind for you.

The biggest challenge we face in Europe, and it’s probably a global problem, is the role that internet companies play in achieving public policy goals.

The European Union and the Council of Europe have rules that say that restrictions on fundamental rights must be provided for by law. Both on the European level and the national level, governments see an opportunity to use political pressure or public relations pressure to arbitrarily persuade companies to implement policies  that would either not be permitted by law — because they would be unconstitutional — or because they would be more accountable.

We see a whole plethora of proposals on a national level. The German government’s pressure on Facebook regarding hate speech and fake news is probably the most obvious example internationally. We also have demands for arbitrary policing of content by internet companies in the EU’s draft Audiovisual Media Services Directive and the Copyright Directive.

Where this type of government activity fits within a predictable, democratic framework has never been defined. To a certain extent, governments don’t want to define it because it would restrict their power to act in an arbitrary way if there was any sort of clarity or predictability about how they should be behaving.

How have you approached to addressing this challenge?

In two ways. On the one hand, we have been campaigning vigorously for a predictable legal environment — a diligent approach to the involvement of intermediaries in achieving public policy outcomes.

We’ve campaigned with the European institutions for a comprehensive approach. We’ve produced policy analysis on how this could possibly be achieved and what it could possibly look like. For example, we published two booklets and organized short brainstorming session at the Stockholm Internet Forum

On the other hand, we’ve been involved in individual projects. The European Commission, for example, had dialogues with internet companies about hate speech, illegal uploading and downloading, “follow the money” approaches to intellectual property rights enforcement, etc.

As long as we can see a meaningful role for ourselves in such processes, we try to engage, to bring some accountability and predictability. Unfortunately, the political desire to have an agreement, even a failed agreement, is often too strong, as in the case of the “hate speech” discussion. What was adopted was demonstrably bad. We’ve successfully killed several of these initiatives — but not all of them.

Turning now to the broadest issue in the Mozilla universe, which is internet health, what, for you, is a healthy internet?

A decentralized one. In an open communications infrastructure, bottlenecks are where the problems arise.

What does the concept of working open mean to you?

Several things. I guess Mozilla has a specific concept, but for me, it would involve a standards level and a competition level — so that a dynamic competition of ideas and approaches is possible.

Getting more specific about Mozilla, how did you get involved with them, and what has that been like for you and for your organization?

There have been direct and indirect ways. I talked to Chris Riley a few times at conferences and got to know Mozilla’s policy and political approaches.

Separately, Raegan MacDonald works in Brussels for Mozilla, running Mozilla’s European policy activities. Raegan started her career as an intern in my office when it was only me, so obviously I’ve got a strong connection that way.

As an avid Thunderbird and Firefox user, I know the products. So yeah, different personal connections and obviously using the software that Mozilla maintained and maintains.

Can you tell me about a time that Mozilla has had some sort of impact on your work or your organization?

In addition to EDRi hosting an Open Web Fellow, Raegan is involved with various trade associations in Brussels. She’s bringing the Mozilla philosophy to European industry discussions. That’s automatically very helpful, in that it questions to the status quo.

Mozilla has also been a big supporter of Net Neutrality, which has also been very helpful and is now involved in the copyright discussions.

Honing in on the Open Web Fellow you’re hosting, what has that been like for you?

We’re about to get to the most interesting parts of that project because, as I mentioned, we have new privacy legislation that was launched last week. Our Open Web Fellow, Sid, is creating some visualizations in relation to browsing history and email metadata. “Communications and metadata” sounds really technical and esoteric, so our goal is to bring some practical understanding to this political debate.

Sid is in the process of doing a metadata analysis of a mailbox in the European Parliament that was put at his disposal for that purpose. The visualizations will show what the metadata from the emails in inbox reveal about the person who’s using it, about the hierarchy in the European Parliament, and so on.

Now, when talking to European parliamentarians about metadata, we will be able to show them what one of their mail boxes can demonstrate. Hopefully this will move us from a technical-sounding, esoteric debate, to, “OK, this is data that can generate this insight. This needs to be protected.”

Sid is also doing something similar for analysis of browsing history, to illustrate the kind of information that can be generated from knowing somebody’s browsing history, for example through online tracking.

So your Open Web Fellow is helping you to make these issues really concrete for policymakers?

Exactly. He’s shown us some nice sketches of planned outputs. Hopefully within the next short number of weeks, we can move into seeing the final products.

Would you have any feedback or examples of times where working with Mozilla was either challenging or disappointing?

No. Definitely not challenging or disappointing. Raegan is a bit more diplomatic than I am — probably a good thing. That’s hardly something I can complain about.

If you had access to 10 skilled collaborators or contributors, what would you ask them to do?

Do you mean politically skilled, technically skilled, design skilled?

You tell me. That’s part of the question: What kinds of skills would be most needed by your organization, and how would you apply them in advancing your work?

In the short term, I’d have one person who would do some behavioral economics on our website and make it more easy to use and more communicative to the wider world.

I would have one or two people working on designing tools to communicate the technical side of the legislative and non-legislative proposals — to make it easier for citizens to understand what’s going on, to enhance democratic participation.

For example, the copyright proposal is deliberately, horribly obscure, and it’s horrifying once you work out the dishonesty of the legislators and the way that European Union case law is being circumvented.

If I sit somebody down for 20 minutes, they get it. But there’s an impunity that is being accorded through obscurity, so finding ways of making this information human-readable would be tremendously helpful.

Then one, two, three, or four people monitoring the issues that are beyond our scope, in terms of manpower, in order to cover everything that needs to be covered and mobilize national-level organizations to play their role at the European level more efficiently.

I could comfortably employ 15 extra people. They would not be bored.

You said something that is really shocking to me. The legislators are using obfuscation as a strategy?

Yes. There’s something like 350 words in the Copyright Directive that:

  • Seeks to incorrectly codify into law — or blatantly circumvent  — five different rulings the European Court of Justice has made over the previous 10 years
  • Proposes upload filtering that would also cover the deletion of perfectly legal content
  • Gives internet companies the job of filtering all uploads and deleting content “identified  by rightsholders”
  • Gives internet companies the job to implement a redress mechanism to appeal the decisions taken by the rightsholders — even though deletions would be done on the basis of terms of service and so would fall outside the scope of the redress mechanism!

As if all of that wasn’t bad enough, the key negotiations between EU institutions will be done behind closed doors in an undemocratic process called “trilogues” — an informal arrangement used because it is “more efficient”.

There was a proposal for mandatory internet access filtering a few years ago in the EU and there was a big civil society campaign against it and it was rejected. Yet this proposal is far worse. However, this time, the obscurity of the text makes it more difficult to highlight what is actually proposed

Also, this time the proposal was put into legislation that also includes a restriction on the right to use snippets of text that link to articles — the kind of tweets you see which are the headline of the main text of the article. What’s more, they’ve put that more-obviously awful suggestion into the same legislative proposal, adding to the confusion. So this is obfuscation through obtuse legal writing and by mixing numerous bad measures into the same legal instrument.

At some stage in the future — probably once the legislative process has gone on too long to be able to stop — journalists are going to get interested and ask, “Isn’t it funny that civil society was so quiet about this?”

Listening to you I started wondering if you could take the text of that proposal, turn it into a quick quiz on Facebook — the kind of stuff people click on while procrastinating or taking a break. So you’d ask, “What do you think this means?” and, because of the obfuscation, the player would get the answer wrong. In that way, they’d experience what is going on.

We’re actually doing something vaguely similar. I’ve written a dialogue between somebody phoning the European Commission and the European Commission asking questions. So it goes something like this:

Company:  “So, am I covered by this?”
EC: “Well, you might be. Do you host a large amount of content?”
Company: “I don’t know what that means.”
EC: “Do you host copyrighted material?”
Company: “I don’t know.”
EC: “Do you host other subject matter?”
Company: …?

That’s literally what the definition is. According to this proposal, you’re no longer covered by liability protections for hosting providers if you host a large amount of copyrighted works or other subject matter and provide access to the public.

So, in one piece of legislation — the e-Commerce Directive —  hosting providers have protection from liability. But in this proposal “hosting providers” are defined so narrowly that very few companies would fit that definition.

Wow. That’s super broad.

It’s super broad and super unclear what “a large amount of files” means. The problem is that there are so many ridiculous bits the proposal that any thorough explanation is automatically too long.

Is there anything more you want to tell me or ask me?

To just go back to what you said at the beginning, the next step would then be to summarize this conversation and see what similarities there are between what I said and what other people said? Is that it?

I’ll send this off to transcription and then two things happen. In the short term, from these interviews we create stories that are more digestible for the media and other audiences. So we use snippets and quotes to illustrate key points.

For example, in the conversation we’ve just had, the importance of translating technical issues into relatable what’s-in-it-for-me content is a theme. Then, you’ve also raised a really interesting story around the whole obfuscation strategy.

Then, we also periodically step back and analyze the stories. We now have almost 100.

We look for similarities and differences. We look at the outliers. We ask, “What’s behind this? What’s the underlying assumption or value or belief?” From that, we can generate insights and hypotheses.

The idea is to go through them again and again because new issues arise, or new ways of framing things. It’s an iterative process.

In this case, I’d flag the challenge that you raised around obfuscation and discuss with my team. Then we can highlight for others and be on the lookout for someone else struggling with this issue.

I’ll send you a PDF that we did to try to disentangle the amazing set of words that I was referring to, but that brings me to something that is the bane of my life, which is, what does one do?

For example, if you take the upload filtering thing that I described, in principle, this would also cover memes — many memes use copyrighted photos or photos from films. And every picture normally has “a” rightsholder.

In principle, that would mean that any meme — any and all memes — could be automatically prohibited by rightholders or the collecting societies that work on behalf of rightholder groups. So you could run a campaign saying, “Crazy EU bans memes!” That’s not untrue, but the problem is that it’s also broader and more complicated than that. This is a major challenge as we try to figure out what is the right thing to do.

Do you abandon the fact that this proposal breaches two different European court rulings? That it removes parody rights, removes quotation rights, and removes education rights? Do we instead focus on the case where the rights holder identifies the content as being their content and go with the slogan, “Save the meme!”

I find it difficult balance between the value of simplification and the value of informing the public about the full range of issues at stake.

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