Anecdote on Liberation

A short anecdote to complement my last post. My British grandfather was sent from his headquarters in Sri Lanka (then called Ceylon) by Mountbatten to Normandy for the D-Day landings to observe and take detailed notes that could be used to inform the planning of a large amphibious assault on Burma.

The assault never happened, but my grandfather's notes remain, and I recently had a quick look through. They are filled with technical details about logistics and weapons, but also contain a diary in which he recorded some more personal impressions.

One of my favourite entries recalls a conversation with a Norman farmer, who complained that he had suffered more damage and property loss at the hands of British soldiers in 4 days of liberation than he had suffered in 4 years of German occupation.

A further remark was tha the discipline of American soldiers appeared to be much better than that of the British.

The first entry was interesting to me because it brought home the reality of war for an individual. I suspect the farmer was delighted to be liberated from German occupation. But that would not have lessened his anger at the British looters, and may have coloured his feelings of affection for the brave boys are so lionised in the UK for saving our allies.

And the second tickled me because the Brits love to think that Americans are uncouth and ill-mannered.

The truth is never as simple as it appears.

WWII and nationalism

The anniversary of the start of the Second World War has been fairly extensively covered in the media and in the Brussels blogosphere. You can see some examples here, here, and here.

As I get older and wiser, I am increasingly struck by the way states use history, and the history of war in particular. To put my remarks into context, I'll start with what seem to me to be factual observations about WWII. Some can be applied to war in general:

1. War was/is declared by governments and not by popular votes.

2. Most countries involved in the Second World War experienced a degree of internal societal division about it, ranging from which side to fight on, to what form of political organisation to create to cope with the new reality.

3. Individual men and women have radically different personal circumstances and make personal choices for accordingly radically different reasons.

In this context, it is striking to see how many nationalists from the victorious countries (UK, Russia, and USA in particular) are seeking to use the anniversary to promote an image of their countries that distorts reality. Equally, commentators from "victim" countries such as Poland or France, seem to be promoting interpretations that emphasise the injustice of what was done to them and the sufferings that their people endured. Commentators from "losing" countries, such as Germany, it seems to me, have a health and objective approach to the role of the state in the war and the sufferings endured by "victim" countries ("we feel bad about it"), but are rarely seen to discuss the sufferings of their own people. While it is good form for a Pole to bemoan the sufferings of his people at the hands of the Nazis, it is not such good form for a German to bemoan the sufferings of his people at the hands of the RAF or the Red Army. Note that I am talikng here about civilian populations.

The result is more than a passing atmosphere of triumphalism in the victor countries every 5 or 10 years, a passing atmosphere of the culture of victimhood among occupied or persecuted populations, and a passing atmosphere of humble introspection among the Germans and Japanese in particular. It is in fact a fundamental divide in how war is viewed in our countries.

In France, they tend to talk about the suffering experienced, but gloss over the political leadership that founded Vichy France and the crimes of the collaborators. In Poland, they talk about the terrible destruction of the country and mind-boggling loss of life, but try not to discuss the fact that millions of Poles fought for the Soviets and for the Germans as well as for the Allies.

As someone with a background primarily rooted in the victor countries, I can remember being taught and believing that "thousands and thousands of our countrymen died so that we could have a free country", or "died for democracy", or "sacrificed their lives for us" or "died on the battlefields in defence of our allies", etc. Every Memorial Day in the U.S. and Day in the UK full of speeches about national heroes. They glorify "our brave soldiers", and by implication, "our great nation". No one asks why individual men actually fought. Many many thousands undoubtedly fought for money. Many fought because they wanted a good fight. Many fought because their mates were fighting. Many fought because they were afraid of the Germans or the Japanese. Many fought for the British Empire. Many fought against their will. Many fought because they had nothing better to do. Most of them probably had some sense that they were fighting for their families and their communities, and in maney cases even some sense that they were fighting "for their country". I'll wager that nothing but a tiny minority consciously fought "for democracy". Indeed, we entered the war because of an existential threat, and not because we already had a blueprint for a democratic post-war Europe. We didn't. And yet here we are, 70 years later, effectively hijacking these peoples' lives for political ends. We are de-humanising war.

Only the Germans publicly take responsibility for the massacre of Europe's Jewry, for the terrible crimes of the SA, SS, Gestapo, the Wehrmacht, and other arms of the state, as well as thousands of individuals. No conquering war heroes in German schoolbooks - only warnings about the horrors of war. There is no introspection in British or American schools to speak of about the crimes committed by "our boys". Crimes? What crimes? They were liberators!

The fact is that WWII, like any war, was a horrible, individual human tragedy on an unimaginable scale. People died, were made homeless, witnessed the stuff of nightmares. And those people had to live or die with their choices. The choices were forced on them by states. And yet in many cases, those same states have the audacity to claim the right to interpret and advertise those individual tragedies as part of a national narrative without the consent of the individuals concerned.

I have lost count of the number of times hat I have heard Brits express suspicions that the EU is really a clever way for the Germans to take over again. The reality is that the threat to peace in Europe comes from those countries who have sold a distorted version of their history to their people for political benfit, but at an enormous social price. It certainly does not come from Germany.

Germany has managed to re-discover a cultural and political identity that does not need the glorification of the state through long-dead war heroes who can't express their views. Germany has grown up in a way that most other European countries (and te USA) have not. And for that, Germany and the Germans deserve our special thanks and respect.

A Private EU Battle

Before you get too excited, this post is not about some highly secret European Commission insider gossip. It's about the EU and privacy policy. More specifically, it takes a look at some of the existing and looming institutional battles in Brussels about who is in charge of privacy policy, or "data protection", as it is known in the Brussels jargon.



The EU already has several pieces of privacy legislation on the books. The ePrivacy Directive bans SPAM, requires an opt-in from consumers for ads over email, and obliges telecoms operators and ISPs to delete subscriber traffic data when it's no longer needed for billing purposes. The Data Retention Directive, with rather painful Brussels irony, requires telecoms operators and ISPs to retain the same traffic data for up to two years to help law enforcement authorities fight crime, depending on national legislation.



But the most important law is the Data Protection Directive of 1995. It sets out the rights of the citizen with regard to personal data, and the obligations of organisations that hold such data. Perhaps most importantly, the Directive sets up some institutions at national and European level that are supposed to help protect our privacy.



Now, almost 15 years later, as those institutions have matured and as privacy/data protection starts to become a hot topic in Europe and around the world, a turf war is brewing within and between the big players on privacy in Europe.



Like most EU policy, privacy is an area where the European Commission has the power of initiative in the "First Pillar" - i.e. the Single Market. The lead department of the Commission is the Directorate-General for Justice, Freedom, and Security ("DG JLS"). However, DG SANCO (which covers consumer protection), DG INFSO (the "information society - i.e. telecoms, Internet, and IT), and possibly some other DGs all have strong claims to at least part of the privacy portfolio.



Then you have the European Parliament, which takes a keen interest in high-profile aspects of privacy policy, like the Passenger Name Record (PNR) agreement with the USA. Although it has co-decision powers on Single Market aspects of privacy, the EP does not (yet) have formal powers in Second or Third Pillar areas (foreign and security policy, justice and home affairs).



The relative newcomers to the institutional power game are the European Data Protection Supervisor (EDPS), Peter Hustinx, and the Article 29 Working Party (A29WP). The latter body was set up by Article 29 of the Data Protection Directive, and consists of the independent data protection authorities (DPAs) from all the Member States. Interestingly, although the EDPS, DPAs, and A29WP were set up by the (First Pillar) '95 Directive, their job descriptions are sufficiently vague to have allowed them to be fairly active in justice and home affairs areas, which are "Member State competences" under the EU treaties. The EDPS has an oversight function vis-à-vis the EU institutions' own data protection practices, but the EDPS and the A29WP share an advisory role vis-à-vis the European Commission on privacy policy generally. They regularly issue non-binding, but nevertheless influential, opinions.



So what is happening? It's pretty complicated, which is why I find it so interesting. Not only is there a developing internal turf war over privacy in the European Commission, but there is also a fight (more like a mass brawl) brewing between the Commission, Parliament, Member States, EDPS, and A29WP.



Before 1995, data protection belonged to DG Internal Market, and the EU's policy debate was primarily about the tension between civil liberties (or "fundamental rights") and essentially commercial interests. But after 9/11, as governments raced to ramp up electronic surveillance of terrorist suspects, concerns about abuse of personal data by commercial entities rapidly gave way to concerns about infringement of civil liberties by governments. Data protection was hastily moved to DG JLS. The unit sits responsible for data protection sits in the Directorate for Fundamental Rights and Citizenship. Under recent Commissioners Frattini and Barrot, this part of the DG has very much been dominated by the "sexier" Directorate for Security. The data protection unit has not been able to assert itself internally so far.



But while the internal security vs. privacy battle rages in DG JLS, DG INFSO, with responsibility for the ePrivacy Directive and a range of other ICT-related policies, and under the populist leadership of Luxembourg's Commissioner Viviane Reding, has got in on the act. Reding and her staff have managed a high-profile campaign to reconcile public concerns about the privacy impacts of RFID technology with the huge potential economic and social benefits they can bring. This culminated earlier this year with a formal Recommendation on RFID, proposing that retailers carry out privacy impact assessments (PIAs) on RFID systems, and deactivate tags by default if their systems were found to pose risks to consumers. More recently, Bulgaria's Commissioner Meglena Kuneva has taken an interest in the consumer protection aspects of data protection on the Internet, such as privacy policies, consumer redress, social networking, and child protection.



It seems that the EDPS and A29WP, which work closely together, have been making the most of the absence of clear Commission leadership on data protection to project themselves as the authoritative and expert, EU institutional voice on data protection. The Commission is not helped by the fact that the data protection unit at DG JLS has about one quarter of the staff (and probably also a fraction of the multi-million euro budget) of the EDPS.



With the possibly imminent ratification of the Lisbon Treaty and the resultant disappearance of the EU's "Pillar" system, all these institutions will be able to start playing freely in a new and exciting sandbox - law enforcement. In anticipation of the treaty changes and to respond to the need to update the '95 Directive, the Commission has launched a major public consultation on the entire legislative framework for data protection.



I have no idea what will happen (and I'd be interested in any insights that readers might have) - we don't yet know who the relevant Commissioners will be or how they will regard privacy. Nor do we yet have a firm handle on the new European Parliament. Almost the only certainty is that EDPS and A29WP will continue to seek to build their profile and stature, and perhaps even their formal powers.


Watch this space!

Inevitably...Microsoft

It's the hottest topic in Brussels right now - the shock judgement by the Court of First Instance against Microsoft in its long-running anti-trust battle with the European Commission. It's been analysed from all angles in the media already, but I think it's a topic I can't avoid (with some delay and a considerable break since my last posting - blame Summer holidays and workload).

I'll focus on some of the key questions:

First, was the judgement correct? I really have to leave that one to the competition lawyers, but for what it's worth I have very bright friends on both sides of the case, and I can't help feeling sympathetic to the Commission, primarily as a user and as someone who knows something about the difficulties of IT systems integration. One of the striking aspects is the size of the case in terms of the sums of money and numbers of companies and lawyers involved. That the world's biggest company can throw such vast resources into this fight and still lose in what is generally acknowledged to be an impartial court does warm the heart of even the most fervent capitalist.

Second, what of the bizarre reaction by the US Department of Justice? In a press release, the DoJ stated its view that the decision was pro-competitor but not pro-competition, and that it would end up harming consumers. This struck me as odd because you can hardly talk about a bias in favour of competitors and against competition in the same sentence as the word, "Microsoft" and keep a straight face, can you? I mean, honestly. Is 95% market share not sufficiently dominant that competition is virtually non-existent, regardless of how many or how worthy the competitors are? Every computer user I have ever spoken to has had some complaints about Microsoft applications. This is entirely normal and should not reflect badly on Microsoft, since the company's products are of exceptionally high quality. But it does emphasise the fact that dissatisfied or frustrated users really have no alternative. How it can be anti-consumer to provide such people with more choice, I don't know. I understand and accept that the theoretical incentive to innovate is lessened if you know you are going to have to share your intellectual property rights with competitors. But this is really something of a joke in this particular case, isn't it? What market share do these competitors have? Is sharing protocols with them really such a threat? Surely the resources pumped into the case, had they been employed in trying to steal a march on competitors, could actually have resulted in more innovation and not less? Isn't monopolistic behaviour inherently anti-innovative? Isn't it true that all the biggest and best innovators, especially in the IT world, have been start-ups? Microsoft, Apple, HP, Intel, AMD, Google... Big companies talk about innovation essentially as a defensive mechanism, to stave off the rise of more creative start-ups. Microsoft's innovations will all be based on the premise of the PC with a traditional operating system. They will simply be evolutions of what Microsoft already offers. The really innovative stuff will come from companies that can and must think outside this box.

Sooooo...all this goes to show what a load of rubbish the DoJ was spouting in its press release. But Commissioner Kroes' reaction was totally unnecessary, and in my view, unhelpful to her own cause. The DoJ statement was so transparently silly, both in substance and as a major diplomatic faux pas, that Kroes could have simply killed it with faint praise, smirking quietly while making a very polite but somewhat superior comment. Instead, she chose to get all defensive and lash out at this "foreign" jurisdiction, as if the EU was not in the habit of exporting its standards, regulations, policies, and court rulings around the world. She could have been 30-0 up, but is now stuck at 15-15. What a wasted opportunity.

Third, are there implications for Intel and other dominant firms that are already or soon to be in the Commission's sights? One of the most commonly cited examples is Apple, whose i-Pod has a huge market share in the US (somewhere around 80%). But if my sources are correct, the i-Pod's market share in Europe is much, much lower, hovering around 20% in Germany, and closer to 10% in France. This could conceivably give Apple Significant Market Power, but Dominance in Europe is just a pipe-dream for Steve Jobs right now. Moreover, the market for music players is really very new. Did anyone carry such things around five years ago? I don't think so. But I do recall Microsoft's products, and indeed its 90%-plus market share in PC OSs being much older news when the Commission started its investigation.

The other favourite comparison is Intel. But the behaviour that Intel is charged with is completely different from the behaviour that Microsoft is guilty of. Essentially, Intel is accused of putting unfair pressure on customers not to buy AMD products - something Microsoft has probably never really felt it needed to do. So I don't expect the Microsoft ruing to be anywhere near as historic as many of those involved might like it to be. In my mind, the judgement was the inevitable result of a blindingly clear case of abuse by a super-dominant player. If you read a textbook on EU law, it quickly becomes apparent that the most historic judgements are not those meted out to obvious villains, but those where defendants with strong cases have unexpectedly found themselves on the sharp end of an innovative treaty interpretation.

Lastly, what of the future for Microsoft? Has it learned any lessons? Will it appeal? Very few people really know the answers to those questions. I can only express my hopes: yes, and no.