From d4f5c50eac9e5655762a8f4af324d8c97f30178e Mon Sep 17 00:00:00 2001
From: Jonas Smedegaard <dr@jones.dk>
Date: Fri, 26 Dec 2014 17:42:13 +0100
Subject: Sync with source as of 2014-12-26 17:38.

---
 eut.raw | 29 +++++++++++++++--------------
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@@ -72,7 +72,6 @@ The work and the cover illustration are independently licensed under the Creativ
 __TOC__
 
 = Foreword =
-'''''By Professor Douwe Korff'''''
 
 This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation – or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament’s duty to ensure "utmost transparency" clearly demands the latter rather than just the former.
 
@@ -80,11 +79,13 @@ In order to elucidate the relevant requirements, the authors provide excellent o
 
 Crucially, the authors have managed to draw on all these sources to indicate clearly what should be done in practical, technical terms by the officials managing the information and IT systems relating to the work of the European Parliament to truly and fully achieve the legal requirement of "utmost transparency". This report will become a major point of reference for the debates on those steps. It is to be greatly commended for having taken the issue seriously (rather than just rely on all-too-easy slogans or political rallying cries). It cannot be dismissed by those with the power to take action. Rather, it should lead to Parliament clearly instructing its civil servants to take the steps needed to achieve the "utmost transparency" required of the institution. The recommendations should be fully implemented: that will enhance democracy, accountability and public participation, and trust in the Union at a time of doubt and insecurity.
 
+''''' Professor Douwe Korff'''''
+
 '''''London 15 November 2014'''''
 
 = Scope and method of analysis=
 
-This study arises from a proposal by the Greens/EFA, backed by two Plenary decisions, that the European Parliament investigates its own transparency obligations under its Rules of Procedure with regard to Free Software and Open Standards. &lt;ref>"The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free Software and Open Standards." From {{cite web|title=Greens/EFA commissions "Rule 103" study|url=http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html|accessdate=12 October 2014|ref=Greens/EFA Internet Core Group public mailing list}}&lt;/ref>
+This study arises from a proposal by the Greens/EFA, backed by two Plenary decisions, that the European Parliament investigates its own transparency obligations under its Rules of Procedure with regard to Free Software and Open Standards. &lt;ref>Quoting from the public mail archive of the Greens/EFA Internet Core Group: "The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free Software and Open Standards.", available at http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html&lt;/ref>
 
 The scope is therefore to verify whether, in general or in single areas, the principle of openness and the right of access to information mandates, and if so to what extent, the use of Free Software and Open Standards, or what kind of preference towards it, if any.
 
@@ -98,7 +99,7 @@ The third trajectory is bottom-up, and analyses single areas of IT, which have b
 
 Finally, as the study analyses the inference between the principle of openness and Free Software and Open Standards, a short description of what they are cannot be avoided.
 
-Although similar in concept, this study only addresses the adjacent area of "Right to Access" or "Freedom of Information" in so far it is relevant for the understanding of the Principle of Openness in EU law, and its possible requirements for the discussion on Free Software and Open Standards. Access to document procedures are laid down the Regulation (EC) No 1049/2001&lt;ref>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R1049&amp;from=EN&lt;/ref> and by Rule 116&lt;ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 116 : Public access to documents http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-116+DOC+XML+V0//EN&amp;language=EN&amp;navigationBar=YES&lt;/ref>, and are not as such material to this study. Undoubtedly the right of access to documents is an useful complement to openness as it ensures that the openness is achieved in full, by providing means to take an active role in disclosing facts and documents that are withheld from public view and should not. However, the access to documents mechanism proceeds by formal questions and answers, whereas the openness is evidently a more dynamic and holistic process that does not depend on legal actions and requests by individuals.
+Although similar in concept, this study only addresses the adjacent area of "Right to Access" or "Freedom of Information" in so far it is relevant for the understanding of the Principle of Openness in EU law, and its possible requirements for the discussion on Free Software and Open Standards. Access to document procedures are laid down the Regulation (EC) No 1049/2001&lt;ref>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R1049&amp;from=EN&lt;/ref> and by Rule 116&lt;ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 116 : Public access to documents, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-116+DOC+XML+V0//EN&amp;language=EN&amp;navigationBar=YES&lt;/ref>, and are not as such material to this study. Undoubtedly the right of access to documents is an useful complement to openness as it ensures that the openness is achieved in full, by providing means to take an active role in disclosing facts and documents that are withheld from public view and should not. However, the access to documents mechanism proceeds by formal questions and answers, whereas the openness is evidently a more dynamic and holistic process that does not depend on legal actions and requests by individuals.
 
 Therefore, the right to access to documents as such is only treated insofar as it provides useful information for the application of the principle of openness in practice on the debate on Free Software and Open Standards.
 
@@ -108,7 +109,7 @@ Therefore, the right to access to documents as such is only treated insofar as i
 
 Rule 115 of the Rules of Procedure of the European Parliament provides that:
 
-&lt;blockquote>Parliament shall ensure that its activities are conducted with the utmost transparency, in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.&lt;ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 115 : Transparency of Parliament's activities http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-115+DOC+XML+V0//EN&amp;language=EN&amp;navigationBar=YES&lt;/ref>&lt;/blockquote>
+&lt;blockquote>Parliament shall ensure that its activities are conducted with the utmost transparency, in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.&lt;ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 115 : Transparency of Parliament's activities, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-115+DOC+XML+V0//EN&amp;language=EN&amp;navigationBar=YES&lt;/ref>&lt;/blockquote>
 
 The European Parliament has been a champion in promoting not only openness of the legislative process and the access to legislative documents, but also that the EU Courts should accept that openness constitutes a general principle of EU law, and that the right to information is as such a fundamental human right. In Netherlands v Council, the European Parliament argued as follows:
 
@@ -168,7 +169,7 @@ Moreover, Art. 10 TEU regarding the principle of democracy (especially Article 1
 
 The development of the principle of openness in EU law has been accompanied by a parallel development of the case law of the European Court of Human Rights. In Guerra and Others v. Italy, the Strasbourg Court held that freedom to receive information under Art. 10 of the ECHR merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him. It states that freedom could not be construed as imposing on a State, in the circumstances of that case, positive obligations to collect and disseminate information of its own motion &lt;ref>See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998‑I).&lt;/ref> Similarly, Társaság a Szabadságjogokért concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate. Here, the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information.&lt;ref>Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.&lt;/ref>
 
-In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,&lt;ref>Application no. 48135/06, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955&lt;/ref>, the Court unanimously recalled, in its reasoning on admissibility, that the notion of “freedom to receive information” embraces a "right of access to information". The judgment has, in our view correctly, been interpreted as having "established implicitly the right of access”, in that the notion of “freedom to receive information” embraces a right of access to information.&lt;ref>European Parliament Policy Department C on request by the Committee on Civil Liberties, Justice and Home Affairs (LIBE): Openness, transparency and access to documents and information in the European Union, available at http://www.europarl.europa.eu/RegData/etudes/note/join/2013/493035/IPOL-LIBE_NT%282013%29493035_EN.pdf ; see also Dirk Voorhoof, Article 10 of the Convention includes the right of access to data held by an intelligence agency, accessible via http://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-includes-the-right-of-access-to-data-held-by-intelligence-agency/&lt;/ref>
+In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,&lt;ref>Application no. 48135/06, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955&lt;/ref>, the Court unanimously recalled, in its reasoning on admissibility, that the notion of “freedom to receive information” embraces a "right of access to information". The judgment has, in our view correctly, been interpreted as having "established implicitly the right of access”, in that the notion of “freedom to receive information” embraces a right of access to information.&lt;ref>European Parliament Policy Department C on request by the Committee on Civil Liberties, Justice and Home Affairs (LIBE): Openness, transparency and access to documents and information in the European Union, available at http://www.europarl.europa.eu/RegData/etudes/note/join/2013/493035/IPOL-LIBE_NT%282013%29493035_EN.pdf ; see also Dirk Voorhoof, Article 10 of the Convention includes the right of access to data held by an intelligence agency, accessible via http://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-includes-the-right-of-access-to-data-held-by-intelligence-agency/&lt;/ref>
 
 In a concurring opinion, judges Sajó and Vučinić highlighted the general need to interpret Article 10 in conformity with developments in international law regarding freedom of information, which entails access to information held by public bodies referring, in particular, to Human Rights Committee, General Comment No. 34 &lt;ref>Document CCPR/C/GC/34 of 12 September 2011, §§ 18, 3, 15)&lt;/ref>.
 
@@ -261,7 +262,7 @@ adj.
 
 n.
 
-The greatest possible amount, degree, or extent; the maximum: worked every day to the utmost of her abilities.&lt;ref>http://www.tfd.com/utmost American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. As reported by The Free Dictionary&lt;/ref>
+The greatest possible amount, degree, or extent; the maximum: worked every day to the utmost of her abilities.&lt;ref>American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. As reported by The Free Dictionary, available at http://www.tfd.com/utmost&lt;/ref>
 &lt;/blockquote>
 
 Therefore it is clear that there is no effort to spare in order to bring the "utmost" openness or transparency, in other words, openness to the most extreme consequences. Parliament has in this respect imposed upon itself a far higher standard to meet in order to ensure openness than any other institution.
@@ -339,7 +340,7 @@ The challenges identified by the EU for making further progress towards the open
 
 * implementing software solutions allowing easy management, publication or visualisation of datasets;
 
-* simplifying clearance of intellectual property rights.&lt;ref>EU implementation of the G8 Open Data Charter, Open data context, page 2 http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&amp;doc_id=3489&lt;/ref>&lt;/blockquote>
+* simplifying clearance of intellectual property rights.&lt;ref>EU implementation of the G8 Open Data Charter, Open data context, page 2, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&amp;doc_id=3489&lt;/ref>&lt;/blockquote>
 
 The EU has furthermore committed to promoting the application of the principles of the G8 Open Data Charter to all EU Member States within the context of a range of ongoing activities, in particular through ensuring the implementation of Directive 2013/37/EU of 26 June 2013 revising Directive 2003/98/EC on the re-use of public sector information (or the PSI Directive as defined in the previous section) which, according to the EU:
 
@@ -350,7 +351,7 @@ The EU has furthermore committed to promoting the application of the principles
 
 * expands the scope of application of the EU Directive to certain cultural institutions;
 
-* defines ‘machine-readable format’ and ‘open format’ and encouraging the use of those formats;&lt;ref>EU implementation of the G8 Open Data Charter, EU Commitment 4: Promoting the application of the principles of the G8 Open Data Charter in all 28 EU Member States, page 8 http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&amp;doc_id=3489&lt;/ref>&lt;/blockquote>
+* defines ‘machine-readable format’ and ‘open format’ and encouraging the use of those formats;&lt;ref>EU implementation of the G8 Open Data Charter, EU Commitment 4: Promoting the application of the principles of the G8 Open Data Charter in all 28 EU Member States, page 8, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&amp;doc_id=3489&lt;/ref>&lt;/blockquote>
 
 === Re-use of EU Institution documents ===
 
@@ -537,7 +538,7 @@ IETF's RFCs are generally considered Open Standards, and are commonly understood
 
 ==== Definitions ====
 
-There are two separate definitions on what is Free and what is Open Source Software. &lt;ref name=piana_eup_juri>For an historical and general overview of Free and Open Source Software we refer to a briefing paper prepared for the Juri Commitee by Carlo Piana, which covers much of the background of Free Software {{cite journal|last1=Piana|first1=Carlo|title=A discussion of the different software licensing regimes|journal=WORKSHOP ON LEGAL ASPECTS OF FREE AND OPEN SOURCE SOFTWARE|pages=30-49|url=http://www.europarl.europa.eu/document/activities/cont/201307/20130708ATT69346/20130708ATT69346EN.pdf|accessdate=7 August 2014}}&lt;/ref>
+There are two separate definitions on what is Free and what is Open Source Software. &lt;ref name=piana_eup_juri>For an historical and general overview of Free and Open Source Software we refer to a briefing paper prepared for the Juri Commitee by Carlo Piana, which covers much of the background of Free Software {{cite journal|last1=Piana|first1=Carlo|title=A discussion of the different software licensing regimes|journal=Policy Department C: Citizens' Rights and Constitutional Affairs, Workshop: Legal aspects of free and open source software, Tuesday, 9 July 2013|pages=30-49|url=http://www.europarl.europa.eu/document/activities/cont/201307/20130708ATT69346/20130708ATT69346EN.pdf|accessdate=7 August 2014}}&lt;/ref>
 
 * The Free Software Definition (by the Free Software Foundation) &lt;ref>{{cite web|title=What is free software - The Free Software Definition|url=https://gnu.org/philosophy/free-sw.html|accessdate=7 August 2014}}&lt;/ref>
 
@@ -720,7 +721,7 @@ Encrypted email cannot be scanned by security systems and therefore they are lik
 
 Emails are complementary to the use of mailing lists, which are particularly useful discussion fora when discussion occurs by threading them via an email discussion. To do so certain rules in both RFC5321 (section 3.9) and RFC2369 &lt;ref>http://www.ietf.org/rfc/rfc2369.txt&lt;/ref> should be implemented.
 
-From a discussion in a Freedom Of Information access request &lt;ref>Interoperability with the EP's mail systems http://www.asktheeu.org/en/request/interoperability_with_the_eps_ma &lt;/ref> it looks like any such request coming from an external mailing list is outright refused by the European Parliament's systems, on the grounds that the address is considered not genuine ("spoofed"). However, a message sent by a member of a mailing list to the mailing list and relayed by the mailing list to its subscribers (including the sender) needs to contain the from: and reply-to: address of the originating email message must not be modified, and obviously this would cause the address of the incoming email being considered not genuine (again, "spoofed") according to the criterion that all messages from a European Parliament address must come from a European Parliament SMTP server. However, this is absolutely not mandated by the standard protocols (it is indeed ''normal'' that an address comes from an SMTP in a domain different from the domain of the originating address) and impedes the users of the European Parliament system to participate in external discussion mailing lists.
+From a discussion in a Freedom Of Information access request &lt;ref>A(2014)6785 "Interoperability with the EP's mail systems", available at http://www.asktheeu.org/en/request/interoperability_with_the_eps_ma&lt;/ref> it looks like any such request coming from an external mailing list is outright refused by the European Parliament's systems, on the grounds that the address is considered not genuine ("spoofed"). However, a message sent by a member of a mailing list to the mailing list and relayed by the mailing list to its subscribers (including the sender) needs to contain the from: and reply-to: address of the originating email message must not be modified, and obviously this would cause the address of the incoming email being considered not genuine (again, "spoofed") according to the criterion that all messages from a European Parliament address must come from a European Parliament SMTP server. However, this is absolutely not mandated by the standard protocols (it is indeed ''normal'' that an address comes from an SMTP in a domain different from the domain of the originating address) and impedes the users of the European Parliament system to participate in external discussion mailing lists.
 
 This seems in stark contradiction with the principle of transparency.
 
@@ -750,10 +751,10 @@ The use of open standards goes in the direction of enabling multiple parts to in
 
 Internet was born and has grown as a deeply decentralised ecosystem. Market forces may or may not lead to a less decentralised situation in the future, with concentration in the hands of few. The European Parliament, as any public institution, should be aware of the impact that its decision have in exposing the privacy of their citizens that interact with their services by forcing them to use technologies which are available only through certain operators. Or worse, through services directly in the hands of them.
 
-Similar conclusions seem to have been taken by the European Parliament Resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs (2013/2188(INI)):
+Similar conclusions seem to have been taken by the European Parliament Resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs:
 
 &lt;blockquote>
-91. Takes the view that the mass surveillance revelations that have initiated this crisis can be used as an opportunity for Europe to take the initiative and build up, as a strategic priority measure, a strong and autonomous IT key-resource capability; stresses that in order to regain trust, such a European IT capability should be based, as much as possible, on open standards and open-source software and if possible hardware, making the whole supply chain from processor design to application layer transparent and reviewable;&lt;ref>http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&amp;reference=2013/2188(INI)&lt;/ref>
+91. Takes the view that the mass surveillance revelations that have initiated this crisis can be used as an opportunity for Europe to take the initiative and build up, as a strategic priority measure, a strong and autonomous IT key-resource capability; stresses that in order to regain trust, such a European IT capability should be based, as much as possible, on open standards and open-source software and if possible hardware, making the whole supply chain from processor design to application layer transparent and reviewable;&lt;ref>European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs (2013/2188(INI)), adopted Wednesday 12 March 2014 in Strasbourg, available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&amp;language=EN&amp;reference=P7-TA-2014-0230&lt;/ref>
 &lt;/blockquote>
 
 = Conclusions =
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