October 12th Manifiesto
(or why the LSSI is not a good idea)
"National sovereignty lies in the spanish people, from which the powers of the State derive"
(Spanish Constitution, Article 1.2)
(Original Spanish version here)
On October the 12th, 2.002, the Law on Information Society Services (LSSI) came into force and became part of the spanish law body. The government´s official version displays a law necessary for the strengthening of electronic commerce in Spain, generating security and trust, wiping uncertainties away, and contributing to create a stable law frame for the Information Society; all this after a transparent and frank process, ruled by dialogue and goodwill.
Nothing further from the truth. The LSSI was born in stealth, almost in silence. When made public, the reaction of the Ministry of Science and Technology was twofold. On the one hand, the claimed over and over again that critics were wrong, that the law would create security and trust, that social agents were being consulted for its improvement; on the other, the state machinery carried out the draft project against all odds, with no dialogue carried out other than with a single association and paying no attention at all to the rest of the netizen community. The result has been a legal piece that pleases no one, draws critics from all sectors involved, and indeed does contribute nothing to create neither security nor trust.
A wide sector of society do not agree with this law. Therefore, and with the goal of explaining our main reasons, here are our arguments:
These are the main topics which, in our opinion, make LSSI unacceptable. Some lawyers have gone so far as to claim that this law is an outright violation of some constitutional principles such as the right to privacy, the non-abuse of computers, presumption of innocende, freedom of speech and of the press, or the scope of the judiciary. We'd like to stress here a Constitution article not quoted before, number 9.2, which states:
- The LSSI is not a mere obligation from Brussels The LSSI recitals start with "The present Law has as its object the incorporation to the spanish law body of European Parliament and Council Directive 2000/31/EC, 8 june, on certain aspects of information society services." However, the LSSI has always intended to go an extra mile. It encompasses noncommercial activities as information society services, it regulates the responsibilities derived from hyperlinks or search engines, and as a last-minute idea it deals on topics as difference as data retention obligation or rules for .es domain assignation.
- The LSSI encompasses each and every activity on the Internet Despite the wide range of terms in the concept "Information Society Services" (ISS), the LSSI extends itself even beyond by describing as a ISS free services "insofar as they constitute an economic activity for the service provider" A mere banner in a personal webpage will turn it into an ISS, which virtually forces its owner to act as a registered company. Senator Delgado warned already that "the free [non-pay] nature of a service does not mean in itself that it is not subject to the law" (Senate Committee on Information Society, Sept 4th 2.001). The then Minister of Science and Technology herself, Anna Birulés, put it crystal-clear:
In other words, NOTHING is out of reach on the Internet, whatever its goals or intentions.
"I´m making it clear again, there are neither webpages nor personal communications nor any other kind of communication which, using the net, does not have an economic effect" (Congress Committee on Science and Technology, Sept. 26th 2.001)
- The LSSI is all stick and no carrot. This law is clear regarding powers given to the State for its enforcement. The responsibility regimes for service providers, the amount and extension of fines, the wide range of preventive measures and the extension of the term ISS to just about anything crawling the net is a strong contrast to the lack of measures to encourage the use of the Net. Users will not be protected at all against many existing threats: faulty badwidth, nonexistent plane rate, indefension against abuses from ISPs, massive spam from outside the EU, privacy protection, implementation and use of crypto techniques, just to mention a few. Netizens are expected to behave or else, without any protection given to them while they surf.
- Data retention in the LSSI is abusive Massive-scale data retention theses, gradually being implemented in all EU territory, will place the netizen in the position of a subject on watched liberty. Everything being made in the Net will be recorded, every move logged. It´s not necessary to have access to message content in order to get a subject's profile, just as the military don´t need to reed the enemy´s communications in order to get the completepicture on their intentions. In the first draft of the law, the government even pretended to have data retention search powers authorized to any judicial authority and to any police/law enforcement body.
- The LSSI will not create neither security nor trust Private companies already wonder how and in which way will the LSSI be enforced. Articles such as providers' responsibity or data retention obligation make commercial operators feel insecure with a las that does not even have a by-law fof its enforcement. Webmasters and users are already signing for self-censorship, voluntarily withdrawing their contens just in case the infringe the LSSI. In other words, we're witnessing a cultural degradation of the Net and an increasing insecurity in cyberspace. Meanwhile, the United States will go on leading the world's electronic commerce; as high-ranking US officials once told a spanish senator "you [europeans] keep on legislation, and meanwhile we'll keep all commerce for us"
- LSSI has had no debate. With the exception of the Asociación de Internautas [a spanish netizens association], virtually no group, association, body or individual has been heard during the drafting of the law. In fact, the majority opinion has been agains: the ABC [a spanish journal] forum alone got about 96% opposition against this law; a similar forum in Terra [Spain´s largest ISP] gathered close to 200.000 messages, mostly against. Netizens associations, operadores, services providers, professional colleges, businesses and telcos who spoke against this law will make an endless list. The government claims to pay attention; doing something is another matter.
- Parliament debate has not been such. In spites of withdrawal petitions, all-out amendments and alternative drafts, the [conservative] ruling Popular Party, with parliament majority, has met most of the other parties' suggestions with indifference, to say the least. It waited till the last minute to introduce the hottest issues, such as data retention or .es domain assignation (a matter subject to be dealt with on another draft bill). To add insult, final approval took place on 20 June, right in the midst of a general strike, when even part of the member of Parliament were absent, enforcing their rights on the street.
It's our opinion that the spanish government las failed to fultull its obligations derived from article 9.2 of the Constitution. The LSSI will not encourage an effective freedom for individuals, and it will hinder citizens' participation in social life through the Net
- It's the public powers' obligation to encourage conditions so that the freedom and equality of individuals and of groups of individuals are real and effectove; remove obstacles preventing or hindering its fulfillment, and easing participation of all citizens on political, economic, cultural and social life
For those reasons, and by this Manifesto, we:
- Abhor and reject the Law on Information Society Services (LSSI) as, far from fulfilling its initial goals of e-commerce encouragemente, has declared the entire Internet as a commercial zone, stripping it from its character as global communication service among the peoples and turning information into a mechandising with a price tag, either explicit or implicit.
- We denounce the acts of the governmente, particularly the Ministry of Science and Technology, whose leaders has embarked themselves into a law that does not satisfy neither netizems' wishes nor business sector' s needs.
- We state our intention to oppose the Law on Information society Services with all legal means available.
- We call on all interested parties, either in or out of the Internet, to publicly state opposition to the LSSI.
Arturo Quirantes Sierra. October 12th, 2.002