A reply from Mr. Harbour
I emailed MEP Mr. Harbour, one of the authors of the amendments, pointing him at La Quadrature's analysis and he replied very quickly, with his own (seemingly quite reasonable, for the most part) rebuttal. Here it is:
> Thank you for your email.
> I am contacting you in response to the commentary by Christophe Espern
> of La Quadrature which you referred to in your email about some selected
> amendments tabled by myself and Mr Kamall, in advance of the vote on
> telecoms on Monday in Strasbourg.
> I was surprised to see your analysis of the amendments which we have
> tabled. I attach my analysis, which you will see contradicts the
> arguments raised in your commentary.
> I would have preferred to discuss the reasoning behind my amendments
> with you at an earlier stage to avoid the confusion that has been
> created but looking forward, I would be very happy to discuss my
> analysis with you in more detail if that would be helpful.
> I look forward to hearing from you,
> Malcolm Harbour
and here's the text of the document he attached:
Justification of amendments tabled by Mr Harbour and Mr Kamall
As is clear from the text, amendment H1 in fact gives national regulatory authorities and the Commission the power to take appropriate action to prevent degradation and slowing of traffic and against unreasonable restrictions of users' possibilities to access or distribute lawful content or to run lawful applications and services of their choice. Furthermore, recital 14 starts with the words: "It should be the end-users' decision what lawful content they want to be able to send and receive, and which services, applications, hardware and software they want to use for such purposes..." It also notes that "an unrestricted basic internet service" could be required as a response to a perceived problem.
It is evident that this protection should not extend to any unlawful content or applications. In fact, the question of lawfulness is outside the scope of this legislation and depends on the national laws of each country. It is to be decided by the relevant judicial authorities of each country, not by the ISPs.
Amendment K1 refers to the free movement of goods and makes it clear that a country can not start requiring manufacturers to incorporate features that would allow detecting or preventing for example copyright infringement, as that would hinder the free movement of the computers and other terminal equipment concerned. Any such requirements would have to be agreed by all member states of the EU. We are not aware of any such proposals.
We are seeking clarification on K2 (tabled by Syed Kamall) and will issue a response on this shortly.
Amendment H2 asks national regulatory authorities to promote - not force - cooperation, as appropriate, regarding protection and promotion of lawful content. It is entirely independent of "flexible response" and does not prescribe the outcome of any such cooperation.
As opposed to the text proposed by the Commission, amendment H3 shifts the burden of explaining the law from the ISPs to the appropriate national authorities. It also broadens the concept so that any type of unlawful activities are covered, not only copyright infringement. Such other activities could be for example child pornography. This public interest information would be prepared by the relevant national authority and then simply distributed by the ISP to all their customers. It involves no monitoring of individual customer usage of the internet.
None of the amendments have been drafted by any outside lobbying organisation.