Archive for January, 2010

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First meeting of the Board of Regulators of BEREC and the Management Committee of the Office 28 January 2010, Egmont Palace Brussels.

Commissioner Reding speech.

All the participants today therefore have an important responsibility to make this particular two-tier structure a success. You are all now wearing, in addition to your “national hat” as national regulator, a “European hat” as members of BEREC. I understand well that this new European dimension of the work of telecoms regulators will be a learning process – for stakeholders, for the media and also for the staff of national regulators. However, you will see that at the end of the day, the exchange of regulatory expertise across national borders and the close interaction within BEREC will over time strengthen the independence of national regulators and enhance the quality of their work.

Commissioner Kroes speech

Regarding your mission, the EU Legislator has established BEREC to ensure the “consistent application” of the telecoms Regulatory framework. This is quite different from “harmonisation.” In Europe’s diverse telecom markets, I do not believe in a one-size-fits-all approach will work. We are all aware that BEREC is not a European super-regulator . However, as a body of experienced national regulators I think you are well placed to deliver this consistent application of the regulatory framework. … In that sense I am placing my trust in you – as experts in these markets – to aim high in your work. I look forward to a close working relationship on important dossiers, such as next generation access networks, universal service, roaming and net neutrality – to name but a few. Here we will, I am sure, benefit from our combined expertise to find the right solutions.


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Let me contribute some open source intelligence on the SWIFT case. One of the leading SWIFT related software solutions providers is the German company Tonbeller AG. As we can see the company is specialised on business intelligence, risk analysis and financial profiling solutions. SWIFT itself seems to be their client or certification agency, here is the Partner profile from SWIFT.

They also describe their product for SWIFT services:

Meets statutory requirements for combating terrorism financing

Automatic import of customer master data for personal checks

All customers and accounts are analysed when accounts are opened and/or in random intervals

All SWIFT transactions are analysed by the system

All non-suspicious SWIFT transactions are returned to the payment system for further processing immediately after checking

All suspicious SWIFT transactions are collected. Any irregularities concerning terrorism financing as well as the next steps are logged

Relevant employees are notified by e-mail that money transfers have been stopped

Irregularities can be evaluated directly in a comparison of the transaction with the corresponding entry in the sanction list

Case management supports the resolution of irregularities depending on the current priority

Low staff requirements due to automatic integration with cross-border payments processing (SWIFT data stream)

Insightful also the Product SironPEP for monitoring policially exposed persons, a means to track money transfers of potentially corrupt politicians using a monitoring list with – to get you a number – 500 000 people on it. Here is the EU Directive from DG Market.

Legal base seems of the other financial monitoring to be the somewhat open:

Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing

I am curious how this directive and the obligations on financial institutions are handled in the context of the SWIFT data transfer. From the recitals:

(10) The institutions and persons covered by this Directive should, in conformity with this Directive, identify and verify the identity of the beneficial owner. To fulfil this requirement, it should be left to those institutions and persons whether they make use of public records of beneficial owners, ask their clients for relevant data or obtain the information otherwise, taking into account the fact that the extent of such customer due diligence measures relates to the risk of money laundering and terrorist financing, which depends on the type of customer, business relationship, product or transaction.

More on these overlooked aspects of the SWIFT puzzle from the EU-Commission. The European counter-part of US Patriot Act etc. provisions on banking. If MEPs understood how these monitoring tools against crimes actually work it would be much easier to win their political endorsement for transatlantic cooperation.

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As currently the ACTA negotiations take place in Mexico,  I would like to introduce a video of Luc Devigne, our EU Commission DG Trade negotiator. Luc Devigne is French and the head of the IPR unit of DG Trade, so the person to speak with when you deal with IPR issues of international trade policy. Below you find a great American Cpan video interview from May 2009 where he offers insights in the international negotiations around ACTA

Luc Devigne for instance advocates for the French “three strikes” rule concerning ISPs. Such measures are not yet part of the acquis communautaire, in fact in the course of the Telecom package such measures were generally rejected, though the European Parliament could not overrule the French national decision to implement such measures (“Hadopi”). Sarkozy’s Hadopi rules are in troublesome constitutional waters, we will see.

Luc Devigne is again very open that the ACTA is primarily targeted “at nations which do not respect IPR enough”.

10:30 Devigne talks about EU-US joint customs operations against copyright infringement

12:30 ACTA

On ACTA secrecy (13:00): No international trade agreement in public. They don’t own what the others delegations say. But public should be informed. That is why they organised two widely followed stakeholder meetings.

Not about personal items but commercial scale, they would apply de minimis rules.

15:30 Internet Chapter not addressed yet (May 2009). Everything about it was rumour.

Question: What is the idea of the internet chapter.

15:49 Sales by internet, cmp. TRIPS. Rightholders asking for more control, on the other side ISPs. Strike balance between both.

16:50 What about “information exchange” as opposed to product counterfeiting? No proposal yet. Then Devigne presents and finally embraces three strikes and explains why that has nothing to do with “information exchange”.

18:50 What to do against against companies like Pirate Bay? No comments as an administrative body on judicial affairs, mocks democratic rule standards in Sweden. Criminal sanctions cmp. TRIPs

20:20 Devigne explains and embraces the French three strike rules, compares offences with stealing CDs from a shop, and compares sanctions with a ban from the store. “But because it is exactly that”. Personal comment.

I really enjoy how thoughtful he talks.

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Quick notes: Today the Spanish minister is grilled over SWIFT in LIBE.

MEP Albrecht for instance stressed an alleged incompatibility of the prolonged agreement with the national constitutional order without getting into details, obviously he has a scrutiny process in mind. Council statement a “nonsequi” another member said and highlighted a contradiction concerning SWIFT adoption, that on the one hand Parliament has to be heard but on the other hand member states argue  parliament intervention may not effect the agreement conclusion.

All of the members seem to be pretty upset about the Council take on SWIFT. My notes on the second minister response:

The Council decided on the substance of Swift.

On the decision substance..

Perview of parliament

Period of change

Extending something which already existst

SWift is under restructuring.

Information from North American can not be given, prior

No itention whatsoever of extracting information.

2 question

30 Nov deadline legal base to maintain of that system, just extentions
under international law impossible to postpone because unilateral decision

this parliament would decide

security and data protection in particular.

in line with charter

time to get information, listen to experts, solid alternative, only intention behind.

NO decision on the substance, No change to status quot, just extention, this parliament will decide.

Highlevel-WG set up between EU and US, soon reports.

Aware of concerns data protection

Has to be debated HERE in the chamber.

Experts telling SWIFT measures very effective in fight against terrorism.

Apparently still no one seems aware of the “business espionage” toxic mix concerning SWIFT data.

A few quick questions that come to my mind:

  • members of US-EU HLG?
  • legal base of US-EU HLG = really a “HLG” in the Com sense?
  • Presidency aware that SWIFT is non-governmental?
  • “extention” in what way?

A rapporteur is assigned for SWIFT (MEP Hennis-Plassaert), PNR (MEP in ‘t Veld, ALDE) etc. LIBE will write to the Legal Service in a fast-track procedure on the substance of SWIFT

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Andy Updegrove launched in his blog a serial cybersecurity mystery novel.

A new one will be posted every Monday.

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Samba guru Jeremy Allison reflects on Open XML standardization at LCA2010:

“One of the worst things that happened out of that, [is that the ISO] which was previously respected by people that didn’t know it so well, became absolutely despised,” he said. “There are some countries now thinking of pulling out [of ISO] because it is simply not worth participating in a process that is so obviously corrupted.”

I disagree, it is worth participating.

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For the rationale about Reply-To Munging, see Reply-To Munging Considered Harmful. Read Reply-To Munging Considered Useful for a dissenting opinion.

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LePoint quotes the Commission negotiator for ACTA in Mexico:

“Le principe de rendre publics les documents de travail avant la signature de l’accord a été accepté par tous, reste à savoir quand nous allons le faire”, affirme le négociateur de l’UE, pour qui “les gens seront rassurés lorsqu’ils verront les documents”.

I am wondering how he reconciles the principle of “making it public before it is signed” with the EU treaties. And even more weird, the answer to the question how it is possible to negotiate criminal penal law:

“Oui, nous négocions aussi en matière de droit pénal”, confirme la Commission. “Mais notre mandat respecte le partage des compétences (entre l’UE et les États membres, NDLR)”…

How is that possible? It cannot be found out because the mandate is not made public. Magic, it reminds me of the charlatans who say they live without food and water supply, and it is their personal secret what makes them survive.

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