No straight answer on encryption from Europe’s incoming digital chief


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Mariya Gabriel, who is currently the EC’s commissioner-designate for the digital economy and society portfolio, was fielding questions from the European Parliament today, as part of the process to confirm her in the role.

She faced questions across a range of tech-related topics during the 2.5-hour session — including requests from MEPs for a clear position on encryption. Yet no straight answer was forthcoming.

Encryption has been rising up the political agenda in recent years, with European justice ministers in several member states raising concerns about strong encryption preventing the contents of terrorists’ communications from being accessed by law enforcement. The U.K. government has even gone so far as to say it now wants to limit companies’ use of end-to-end encryption.

Earlier this week the European Parliament’s civil liberties and justice committee put out a proposal aiming to the ePrivacy regulation that aims to safeguard end-to-end encryption from state backdoors.

And Gabriel was a member of the committee for several years during her time in the EU parliament. (The LIBE’s proposals will need the support of the EU Parliament and Council to make it into law, with the EC and its digital commissioner set to play an influential role in those ongoing discussions.)

Asked whether she sees the need to safeguard encryption in order to boost consumers’ trust in digital services, Gabriel began by appearing to support guarantees that strong encryption should not come with the risk of any government backdoors.

“At the moment it’s important to have encryption,” she said. “It’s a guarantee for security without any possible backdoors. We’ve already seen member states initiatives where they’ve used the deciphering of the encryption — and we’ve seen the results of that. So we need to move forward. Trust, confidence and security for citizens will come from a number of measures, but that’s a principle where I propose that we move along the same lines.”

But asked in a follow-up to commit that there will be “no such legal access provided” to (backdoor) e2e encryption, she rowed back.

“Legal access can only take place within very strict conditions, as we have for other legislative measures. And only where it concerns reasons of national security of the highest rank,” she said. “So I think on that point we need to make sure that we’re consistent with the other pieces of legislation that we have — and at the same time establish a clear principle.

“It’s important because we need to give our own institutions the means to move forward, but we also need to make sure that those very same instruments are not being used by others for purposes other than the positive purposes that we had in mind.”

It’s a position that’s reminiscent of the commission’s approach with the EU-US Privacy Shield — aka the mechanism for authorizing transfers of personal data from the EU to the U.S. that aims to bridge two very different data protection legal regimes. The prior Safe Harbor agreement was struck down after a legal challenge focused on U.S. government agencies’ bulk data collection programs; yet Privacy Shield still allows for bulk collection for national security purposes.

Later in the Q&A session encryption was raised again, with MEP Julia Reda accusing Gabriel of being contradictory in her prior answer — though the commissioner-designate did not take the opportunity to clarify her position.

Gabriel is EC president Jean-Claude Juncker’s nomination, midway through the current commission, to replace prior digital chief Günther Oettinger, who moved on to another area of responsibility in January. Since then EC VP Andrus Ansip has been the caretaker commissioner for the digital economy and society brief.

On encryption, Ansip tweeted in March that “weakening encryption is not an option” — and has spoken out rejecting the idea of mandatory backdoors. However, he also has said that the interest of law enforcement is “not black and white” when it comes to encryption — so also has failed to set out an unambiguous view.

Other questions Gabriel faced from MEPs during today’s session included whether the EC will be introducing new legislative initiatives to regulate powerful online platforms, such as Uber and Airbnb. Would she, for example, be seeking to regulate the service or the type of company, she was asked?

On this she said the approach of the EC will generally be to “make an adjustment” when it sees a competition-related problem. But she also confirmed it has plans to tackle what she dubbed “unfair practices” by dominant platforms.

“We’re not talking about over-regulating… But yes I will confirm that there will be an initiative on the unfair practices amongst platforms and companies that operate on those platforms. The study that was carried out by DG Competition has shown that this does exist… and it’s SMEs that suffer the most,” she said.

“Unfair competition has no place because we want to send a clear signal,” she added. “We would like to have a regulatory environment that allows the best conditions for all. But this also allows, through regulation, to remedy situations where there is indeed a problem.

“This does not have an effect on freedoms, we don’t have a common definition on platforms but we do not want to stand in the way of innovation and creativity which is part of these new, very highly performing platforms.”

On the issue of hate speech being spread via online platforms — a debate that’s also been rising up the agenda in Europe in recent years, with some member states proposing to legislate (including with fines) for moderation failures — she suggested the commission’s preferred route is to encourage more voluntary action from social media giants.

“We have to work on voluntary measures that give us the right result — for example the Code of Conduct to combat hate speech,” she noted. “This allowed us to move forward. Almost 60 percent of the illegal content was deleted. We need to co-ordinate that dialogue further.”

She spoke up strongly for measures aimed at supporting artists and creators from online piracy and to ensure they have “fair renumeration” vis-a-vis content distribution on tech platforms — and defended the EC’s current proposal on online copyright reform.

She also voiced strong support for “an independent pluralist media” — seizing on a question about so-called fake news to argue that platforms should be building tools that surface “quality information.”

“We must insist vis-a-vis companies and platforms so that they should promote instruments that will allow us to get quality information so that we can defend our democratic values,” she said.  “This is something that I’m very keen on and I would like to stress this, because this is also linked to the issue of fake news today.”

“[Fake news] is not a new phenomenon… what has changed is the speed with which information is propagated and the way in which it can attack our values, our societies,” she added.

One more point of clarity: She confirmed the commission has no plans, certainly within its current term, to move to remove geoblocks on audiovisual services — talking instead of the need to take a case by case approach and to “safeguard the territorial license, freedom, contractual freedom which enables people to restrict content to a certain territory.”

“As far as I’m aware, and also basing this on conversations that I’ve had with experts… this is not actually foreseen in the near future,” she added.

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