On 22 February, the European Data Protection Supervisor (EDPS) released an unsolicited opinion on EU negotiations of an Anti-Counterfeiting Trade Agreement (ACTA). The EDPS expresses some strong opinions on the use of the “three strikes law” and other measures to control copyright violations by Internet users that might be in the ACTA. The EDPS is not subtle – he declares that “[s]uch practices are highly invasive in the individuals’ private sphere. They entail the generalised monitoring of Internet users’ activities, including perfectly lawful ones.” The opinion describes how a “three strikes” or similar approach might be set up, as well as the applicable EU data protection and privacy legal framework (in paragraphs 23 to 26). It then issues harsh conclusions (paragraphs 81 to what should be 88 but is mis-numbered as 80). The EDPS “strongly encourages” the Commission to set up a public and transparent dialogue on ACTA (which so far has been secret). He insists that the Commission strike a correct balance between “demands for the protection of intellectual property rights and the right to privacy and data protection,” which should be taken into account at the beginning of the negotiations. In his view:
85. …three strikes Internet disconnection policies are not necessary to achieve the purpose of enforcing intellectual property rights. The EDPS is convinced that alternative, less intrusive solutions exist or, at least, that the envisaged policies can be performed in a less intrusive manner or at a more limited scope, notably through the form of targeted ad hoc monitoring.
In the last paragraph of the conclusion the EDPS insists on being consulted on the measures to be implemented. EDPS opinions have no legal binding status but can be influential indicators of how data privacy laws might be interpreted.