Muzzle Law of Poland: An attack on the Independence of Judiciary
Publisher
Global Views 360
Publication Date
August 16, 2020
URL
Andrzej Duda, the President of Poland | Source: Wojciech Grabowski via Wikimedia
On February 4, 2020 the president of Poland, Andrzej Duda signed a law that prohibits the country’s judiciary to question the appointment of judges by the President and bars them from being involved in political activities. The law also prohibits judges to seek guidance from the EU Court of Justice on appointments by the National Council of Judiciary (NCJ) of Poland.
Opposition parties condemned the law and Supreme Court president Malgorzata Gersdorf termed it as “Muzzle Law”.
In December 2019, the Sejm, the lower house of the Polish parliament passed the bill that would penalize judges who criticize the judicial reforms of the ruling Law and Justice party. It was sent back by the upper house for further discussion and a vote. However Sejm, using its superior power, enacted the bill, which the president signed on February 4, 2020, making it a law in the country.
The SC of Poland had earlier ruled on December 5, 2019 that the NCJ is not an independent body. Again on January 23, 2020 the SC in a ruling termed the appointment of the judges by the NCJ as illegal stating their apprehension that they may not be free from political influence. The Justice Ministry, quite predictably termed the SC verdict as a “serious violation of the law”.
The law has drawn criticism from lawmakers as well as legal scholars across Europe and the European Union. On 11th January 2020, hundreds of judges from across Europe marched in Warsaw to protest against the enacting of the controversial law. Thousands of lawyers and residents joined in with many waving Polish and EU flags as they marched from the SC to the parliament. "We have come here to support the Polish judges but we are not politicians. We are here about the rule of law, not about politics." John MacMenamin, an Irish Supreme Court judge, told reporters.
In February 2020, a group of 44 ICJ Commissioners and Honorary Members along with senior judges, lawyers and legal scholars from across the world released a statement in which they said, “it is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.”
Ever since it came to power in 2015, The Law and Justice Party of Poland, has been working towards dismantling the independence of the judiciary, terming it judicial reforms. There has been opposition to these actions by the opposition parties, judicial bodies as well as European Union.
EU flags at the European Commission Berlaymont building Brussels, Belgium | Source: Guillaume Périgois via Unsplash
Late in 2017, the European Union had initiated what it called “unprecedented proceedings” against Poland. The move was a response to the worrying reforms in the judiciary that were being enforced by the government. The EU had stated back then that these “systematic threats” could see Poland losing its EU voting rights.
On 29th April, 2020, The EU started a new legal case against the nationalist Polish government in response to the adoption of the “muzzle law”. The EU further added that it was giving Poland two months to address the issues pertaining to the law. “This is a European issue because Polish courts apply European law. Judges from other countries must trust that Polish judges act independently. This mutual trust is the foundation of our single market,” said Vera Jourova, the Czech member of the executive Commission who is responsible for upholding the EU’s democratic values at a news conference.
A few European legal scholars have warned that the developments in Poland are a threat to the entire legal system of the EU. Despite all the criticism and pressure from the EU, the Polish government is yet to respond meaningfully to the growing concerns over the assault on Poland’s judicial system and its potential EU exit.
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WhatsApp's New Privacy Policy: Collecting Metadata and Its Implications
According to WhatsApp’s new privacy policy, the app is set to collect “only” user’s Metadata. Metadata can reveal a lot more than merely the app usage of a person. Former NSA General Counsel Stewart Baker stated, “Metadata absolutely tells you everything about somebody’s life. If you have enough metadata you don’t really need content.”
This article explores the ways in which WhatsApp is underselling the true estimation of the significance of Metadata.
Facebook owned WhatsApp recently announced the update of its privacy policy terms. 8th of February, 2021 was initially set as the deadline for users to either accept the new privacy policy or delete their account. By this time, most of us have already witnessed or been a part of the backlash that WhatsApp is experiencing. LocalCircles conducted a survey and the results indicated that 15% of India’s users are likely to move away entirely from the app while 36% will drastically reduce the usage and 67% of users are likely to discontinue chats with WhatsApp business accounts.
To reinstall trust in its users, WhatsApp released a clarification stating that the new policy update doesn’t compromise privacy of messages with friends and family. Furthermore, it explains that the update includes changes related to WhatsApp business accounts are optional too.
However, owing to severe backlash, WhatsApp has pushed the deadline to May 15 while they further clarify their policy updates.
It is true that WhatsApp cannot read our messages as it is end-to-end encrypted which implies that only a message’s sender and receiver can read it. The updated privacy policy intends to alert users that some businesses would soon be using Facebook-servers to store messages with their customers. By accepting the new privacy policy, users will be allowing WhatsApp to reserve all rights to collect your data and share it with the expansive Facebook and Instagram networks ‘regardless of whether you have profiles on those apps.’
By using WhatsApp, you may now be sharing your usage data, your phone’s unique identifier, your location when the location service is enabled, among several other types of metadata. A culmination of all your metadata is linked to your identity.
The value of metadata has been underestimated since the term isn’t clearly understood. Metadata is data about our data. For instance, in a cell phone conversation, the conversation itself isn’t metadata but everything except that is metadata. Data regarding who you called, how long you spoke for, where you were when you placed the call, where the other person on the line was and the time you placed the call. Consider a situation when every time you made a call to someone, you had to inform a particular person about who you called, how long you spoke for, when and where and all other details except the content spoken. This applies for every single call and everyone else’s metadata is also being recorded. The person owning the metadata can analyze and tell a lot about your personal life. Who you work with, who you spend time with, who you are close to, where you are at particular times and so on…
Kurt Opsahl, in his post in the Electronic Frontier Foundation, gives an example of how companies and governments collect intimate details about your life with the disguised use of the word called metadata. The following examples are an excerpt of his article:
“They know you rang a phone sex service at 2:24 am and spoke for 18 minutes. They know that you called suicide prevention hotline from the Golden Gate Bridge.
They know you spoke with an HIV testing service, then your doctor, then your health insurance company in the same hour.
They know you called a gynaecologist, spoke for a half hour, and then called the local Planned Parenthood's number later that day. But nobody knows what you spoke about.”
Metadata provides more than required context to know some of the most intimate and personal details of your lives. When this data is correlated with the records of other phone calls, one can easily obtain a lot more data and track our daily routines. This is merely about phone calls. WhatsApp includes a lot more features and will collect metadata of chats, businesses and money transactions.
In WhatsApp’s words:
“We collect service-related, diagnostic, and performance information. This includes information about your activity (such as how you use our Services, how you interact with others using our Services, and the like), log files, and diagnostic, crash, website, and performance logs and reports.”
In addition to this, WhatsApp also collects information about IP address, OS, browser information and phone number.
Stanford’s computer scientists conducted an analysis to understand the extent of intrusion of privacy using metadata. The scientists built an app for smartphones. The app was developed to retrieve metadata of calls and text messages from more than 800 volunteers’ phone logs. The researchers received records of more than 250,000 calls and 1.2 million texts. Their inexpensive analysis revealed personal details of several people like their health records. Researchers were also able to learn that one of their participants owned an AR semi-automatic rifle with only metadata.
Gen. Michael Hayden, the former head of the National Security Agency once stated that “the U.S. government kill[s] people based on metadata.”
In 2016, Facebook was involved in the infamous data privacy scandal which centered around collection of personal data of over 87 million people by Cambridge Analytica, a political consulting and strategic analyst firm. The organization harvested user data for targeted advertising, particularly political advertising during the 2016 U.S. election. While the central offender was Cambridge Analytica, the apparent indifference for data privacy to Facebook facilitated Cambridge Analytical and several other organizations.
In June 2018, Facebook confirmed that it was sharing data with at least 4 Chinese companies, Huawei, Oppo, Lenovo and TCL. Facebook was under scrutiny from the U.S. intelligence agencies on security issues as they claimed that the data with the Chinese telecommunication companies would provide an opportunity for a foreign espionage.
In September 2019, there were reports that the Indian government contemplated making it mandatory for companies like Google, Facebook, and Amazon, to share the public data of users.
The Ministry of Electronics and IT (MeitY) was planning on issuing new guidelines under the Information Technology Act which according to which tech giants would have been required to share freely available data or the public information that they collate in the course of their operations, including traffic, buying and illness patterns.
Europe is exempted from WhatsApp’s new privacy policy as EU antitrust authorities fined Facebook 110 million euros for misleading the regulators during the takeover of WhatsApp in 2014. EU’s strict privacy laws empowers regulators to fine up to 4% of global annual revenue of the companies that breach the bloc’s rules.
Your Metadata is extremely personal. By giving WhatsApp the authority to access it, you are giving access to several other organizations, businesses and it also makes you more vulnerable to third-party hackers and trackers. WhatsApp has given multiple assurances about its updated privacy policy being noninvasive. However, most of these assurances are cleverly worded and misleading statements. It is important to read through the fine print of the new policy before accepting it.
