URGENT action save am138 against horrible compromise

The Conciliation committee delegation of the European Parliament will meet on October 13th, 11h. In this informal meeting, they will be presented an outrageous analysis by the legal team of the Parliament aimed at making them accept an extremely dangerous "compromise" text replacing amendment 138, essential safeguard for citizen's freedoms, adopted twice by 88% of the votes.

EU citizens must help to convince members of the delegation to start the negotiations with the original amendment 138, adapt its wording if necessary, but reject this "compromise". We must refuse an Orwellian vision for freedoms in EU, where the right to a due process could be restricted for "prevention or detection of criminal offenses".

UPDATE Oct 13h 21:00 - Action is OVER! - Result of the micro-campaign:

• Thanks to everyone who participated. Our action was useful and the result was encouraging... but...
• During this morning meeting, many MEPs were worried about the legal analysis by the EP service, and explicitly gave mandate to the negotiation team not to use it in the negotiations with the Council, and to stay on the previous agreed position for the EP: asking the Council to give a precise analysis on what is wrong with 138. (Several members from S&D, ALDE and Greens specified that it was impossible for them to make up their mind on an document transmitted at 16:00 the day before the 11:00 meeting, and asked for more time)
• MEPs were as a whole very doubtful of that dubious analysis from the EP service, showing that this trick didn't stand public scrutiny, and awareness campaign by civil society.
• Yet, during this afternoon's trialogue, the negotiation team (Catherine Trautmann, Alejo Vidal-Quadras, Herbert Reul) bypassed this mandate given by their delegation, and agreed, not on the compromise as a whole, but to start the negotiation with it, instead of starting with 138. They clearly betrayed the trust given by their delegation, with no justification, and gave up to the core principle of am.138, of a prior ruling by the judicial authorities.
• Expect a follow-up very soon on La Quadrature's main website.
• Thank you again for your participation! We were able to raise awareness to the MEPs on that maneuver in a record time.

When?

It is crucial to contact members of the Conciliation Committe delegation of the European Parliament, and their substitutes, before their unofficial meeting on October 13th, 11h!!!. Only a very few hours left, don't hesitate!

Who?

Call by clicking from this list of the 27 Members of the European Parliament in the conciliation committe and their substitutes, sortable by country, political group, or score to the previous votes of the Telecoms Package.

Start with members from you country, then Call on the members of the negotiation team (Catherine Trautmann, Alejo Vidal-Quadras, Herbert Reul), then the others.

It is important to contact members of every political group !

What?

Key points

status

• A new formulation has been proposed for an amendment that would replace amendment 138. This amendment turns the respect of the rights of each citizen to a due process into a dispensable option that can be discarded at will, for instance for "prevention or detection of criminal offenses". This new formulation is even worse than nothing.
• The European Parliament legal service produced an analysis justifying to drop the original 138 in favor of this bad compromise. The analysis concludes on some minor points yet justifies, as expected, the adoption of the compromise, without even talking of the dreadful "prevention or detection of criminal offenses" exception.
• All their arguments can be countered, especially the ones related to Article 95 of the EU Treaty (the IPRED2 directive for instance changed the Member States criminal laws, jurisprudence about art.95 is fluctuating).
• Apart from the legal arguments, it is not tolerable that such a compromise be pushed in such condition, with the help of an administrative body of the Parliament.
• Indeed there are some adaptations needed to the text of amendment 138. If the definition of "fundamental rights and freedoms" is too broad, it could be shortened to "freedom of expression and communication and freedom of information" for instance. The reference to the Charter for Fundamental Rights can be removed, etc.
• The Parliament must not give up Citizens' fundamental Freedoms. They must negotiate by starting with the original amendment 138 text, and adapt it, instead of accepting a much dangerous compromise.

background info

• Amendment 138 was voted 2 times in the EU "Telecoms Package" by 88% of the European Parliament. It is an essential safeguard to citizens fundamental rights, stating that "no restriction on fundamental rights and freedom (can be taken) without a prior ruling by the judicial authorities". This a very strong restatement of current EU law, that is under threat by such projects as the French "three strikes" HADOPI law, or similar projects in UK, etC.
• The Council of EU disagrees since the beginning with this amendment. They tried to remove, with no justification, several times. Now it is the only point of disagreement between the Council and the European Parliament. It is currently being negotiated right in the Conciliation procedure

Sources of analysis and argumentation

You can find arguments to talk to them in the following documents and sources:

• Text for the bad compromise
• Memo debunking the Council's arguments about am.138
• Letter sent to the Members of the European Parliament, about debunking Council's arguments.

Arguments and counter-arguments

If you encounter blocking arguments during your conversations, please notify us (contact AT laquadrature . net) and/or list them below.

"Am 138 is not legal according to article 95 of the European Union Treaty"

Some Counter-arguments can be found here, but:

• the copyright (or IPRED[1]) directive's provisions1 oblige member States to ensure that right-holders can bring actions before national courts[2]. Interestingly, the “IPRED” directive was adopted on the basis of article 95 CE
• Jurisprudence of article 95 is fluctuating over time.
• Whatever the legal problem is, it can be addressed by modifying the wording of amendment 138, nothing justifies to accept the horrible comprmise.

"Am 138 is to broad"

• The notion of "fundamental rights and freedoms" can be narrowed in a re-wording of the original amendment. Anything would be better than the arbitrary, preventive "justice" described in compromise amendment.

"EP legal service said the compromise was acceptable"

• the EP legal service didn't even mention the exception list that is totally unacceptable. They only referred to its compatibility with article 95. They were not asked to say if it protected Freedoms or went against them.
• The fact that the compromise was legal does not mean it is politically desirable to ditch the position of a Parliament that voted twice by 88% of its members in favor of the original, protective, version of am.138

General advices

• A phone call is 100 times more efficient than an email! Phonecalls are personal and are harder to avoid than emails.
• A cut/paste email has *negative* impact: it weakens the content and make it look like spam.
• MEPs assistants who will answer are most of the time young and intelligent people who understand the importance of these issues. All of them use Internet.
• Always be polite in your communications. MEPs and their assistants are people just like us.
• After sending a short email explaining your concerns in a few words, and containing as an attachment the note of La Quadrature, you can make a phone call. This may be more useful as it has more impact than an email. (MEP's offices are saturated with mails)
• Don't hesitate to offer to send additional information by email, as a follow-up.
• Even if your correspondent offers to call back, don't hesitate to call back. MEPs and their assistants are often very busy. They will also offer to call you back as a way of getting rid of you. ;)
• If the MEP is from your country, you can address her/his assistant in your language. All of them speak good English, many of them also speak French.
• If you don't find the answer to a question, note it down and offer you correspondent to call back once you'll have it. Don't hesitate to submit it to us (contact AT laquadrature.net, #laquadrature on irc.freenode.net or discussion list: discut AT laquadrature.net)
• As a rule: have at hand what you need for note taking, to note down the name of your correspondent, information they might give you, a list of blocking points you may work on before calling back, remaining questions, documents you need to send to them, etc. Send feedback for your call on this page, or by mail at (contact (AT) laquadrature . net)

Example phone call

Here is an example phone, to help you to know how to talk to MEPs assistants:

• YOU: "Hello, I would like to talk to Mrs/Mr MEP, please."
• Assistant: "Mrs/Mr MEP is not available, I am her/his assistant. Can I help you?"
• YOU: "I am MyName, calling from MyCountry, I am very much concerned by the compromise text that will be presented in delegation meeting at 11AM."
• Assistant: "I see. We had calls before. I have no time."
• YOU: "But it is very important! I want to know what Mrs/Mr MEP thinks about the compromise text, because I think it is very dangerous, and that the analysis by the EP legal service is really dubious."
• Assistant: "There is nothing wrong with the compromise. It's the original amendment that has a problem, it is illegal according to article 95."
• YOU: "Article 95 jurisprudence is fluctuating, and the compromise say that the fundamental right to a due trial is optional, and can be bypassed in order to detect or prevent crime! This is extremely scary and not at all conform to the spirit of amendment 138. But aside from that one might ask: 'Why would the Parliament, after voting twice am.138 by 88% of its members, accept such a compromise from the Council?' Negotiations should start with the original text from am.138, so the Parliament stands strong!"
• Assistant: "There are lots of problems with amendment 138."
• YOU: "All these problems could be addressed by rewording! The Council didn't explain yet what was its problems with the specific wording of am. 138! the scope of 'fundamental rights and freedoms' could be for instance narrowed, the reference to the Charter of fundamental rights removed, etc."
• Assistant: "Well... "
• YOU: "Will you please ask Mrs/Mr MEP to take my call into consideration? Citizens expect the Parliament they elect to defend their freedoms, even when the Council wants to restrict them! Internet is essential for exercising freedom of speech, and so structuring for our societies, its innovation, and competition. Only a judge should be able to restrict Internet!"
• Assistant: "I'll tell Mrs/Mr MEP."
• YOU: "Thank you very much for listening to me. I'll call you again shortly to know what he thought. Have a good day."