Part 2 of a series of 3 postings on the leaked EU TTIP discussion document

Just as the European Parliament is about to vote on new data protection rules, TTIP touches on another aspect of privacy.

Has a discussion on communications traffic data slipped into the EU-US trade talks (TTIP)? It seems as though it might have done. Iptegrity previously reported on the re-work of telecoms law that is signalled by a series of provisions in a European Commission document that is to form the basis of discussion at the TTIP talks. Within that context, the issue has slipped in via a back door.

The EU-US trade talks, known formally as the Transatlantic Trade and Investment Partnership (TTIP), have a section concerns trade in services. In that context, the talks will address telecoms networks and Internet service providers. As previously reported by Iptegrity ( Lex AT&T? EU Commisson's TTIP proposal to revise telecoms law), a document leaked by the German news website Zeit Online revealed that a re-work of the EU Telecoms framework appears to be on the table.

The Telecoms Framework includes a directive known as the E-privacy directive, which links to the Data retention directive. These two directives govern how communications traffic data is handled.

The European Commission document leaked by the German newspaper Die Zeit contains one provision that would seem to a placeholder for discussion on communications traffic data. However, what's interesting about it is the language it uses. Instead of privacy and data protection, which are fundamental rights under EU law, the Commission's TTIP proposal says 'confidentiality' shall be 'ensured':

Article 48

Confidentiality of information

Each Party shall ensure the confidentiality of electronic communications and related traffic data by means of a public electronic communication network and publicly available electronic communications services without restricting trade in services.

On the surface, this would seem to be immediately flawed under EU law, since fundamental rights must be guaranteed, not merely ensured. Moreover, that last phrase, without restricting trade in services, would seem to be a massive get-out clause permitting all kinds of violations of privacy in the interests of big US business.

Next week, the European Parliament will vote on the Data Protection Regulation. This is plenary vote with the full Parliament, and it will be asked to adopt the report of Jan Philipp Albrecht that was voted in the LIBE committee last autumn.

The Albrecht report does not address communications traffic data. However, the European Parliament will also be voting to adopt the Moraes report on the inquiry into the Snowden revelations regarding NSA surveillance, and obviously, communications traffic data will be addressed there. It's understood that this report contains a recommendation to suspend the Safe Harbour agreement, under which American companies may export the personal data of European citizens.

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If you like this article, you may like my books A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms and The Copyright Enforcement Enigma - Internet Politics and the 'Telecoms Package'

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, 2013, Confidentially TTIP - but is it private?, in Iptegrity.com 7 March 2014. Commercial users - please contact me.

Tags: TTIP, EU-US trade talks, Transatlantic Trade and Investment Partnership, privacy, confidentiality, Zeit, European Parliament, data protection, communications traffic data.