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Earlier this year, the European Commission (EC) registered the ‘Civil society initiative for a ban on biometric mass surveillance practices’, a European Citizens’ Initiative. Citizens are thus given the opportunity to authorize the EC to suggest the adoption of legislative instruments to permanently ban biometric mass surveillance practices. This contribution finds the above initiative particularly promising, as part of a new development of bans in the European Union (EU). It analyses the EU’s approach to facial, visual and biometric surveillance,3 with the objective of submitting some ideas that the European legislator could consider when strictly regulating such practices.

Reprint of an article of 1996 SUMMARY: Introduction; 1 Principles of the democratic constitutional state; 1.1 The Recognition of Human Rights in their Double Function; 1.2 The Rule of Law; 1.3 Democracy; 2 The democratic constitutional state and the invention of two complementary legal tools of power control; 2.1 Limiting power through opacity tools; 2.2 Channelling power through transparency tools; 3 Privacy as a tool for opacity (creating zones of non-interference); 3.1 The negative role of privacy; 3.2 The positive role of privacy; 3.3 The non-absolute nature of privacy; 4 Data protection as a tool for transparency; 4.1 Introduction; 4.2 The rationale behind data protection; 4.3 Data protection as an opacity tool?; 4.4 The charter of fundamental rights of the european union; 5 The shift from opacity towards transparency in european human rights law; 5.1 European human rights law and the legality requirement; 5.2 The success of the legality requirement; 5.3 A critical comment about the strasbourg focus on the legality requirement; 5.4 The danger of proceduralisation; 5.5 A requirement fundamental to opacity: necessary in a democratic state; 6. Combining privacy and data protection 6.1 Combining the tools; 6.2 Determining the switch; 6.3 An example: camera surveillance; 6.4 A second example: passenger profiling; 6.5 Workable criteria?; Conclusion.1

In 2016 zorgde de GDPR voor een trilling in het landschap door op heldere wijze een hele reeks eisen te formuleren voor privacybeheer van data en die te koppelen aan streng toezicht door landelijke autoriteiten voor persoonsgegevens. Die gingen ook Europees meer en intens samenwerken. Met corona kwam vier jaar later de lakmoesproef.In de voorbije twee jaar heeft het rechtssysteem niet goed gefunctioneerd, met uitzondering van het GDPR-systeem. Er is te veel pragmatisme geweest en te weinig gekeken naar de rechtsprincipes.21 In het Engels spreken ze over democratic back sliding. Een rechtsprincipe onder vuur is dat van de verantwoordelijkheid van mensen met beleidspositie, zowel in het openbaar bestuur als in het middenveld. De democratie roert zich nu opnieuw, ook over privacy. De verlenging van de covidpas eind januari 2022 in België was een teleurstelling, want het draag- vlak voor dat instrument was tanend. Gelukkig en desondanks beweegt de politiek terug, zoals met de hoorzittingen in het Belgisch Parlement rond de vaccinatieplicht. Het Parlement moet duidelijk weer aan controle winnen en schijnt daar ook zin in te hebben, afgaande op de hoorzittingen over privacy, vaccinatie en CST. Opschonen wat er in de voorbije jaren, vaak tegen adviezen van de GBA, is opgebouwd in grote haast en top down zonder participatie en accountability. Reflecteren over de privacy-infrastructuur die het voor dit land wil

Het Coronadebat en het gebruik van het Covid Safe Ticket (CST) heeft ons nieuwe inzichten gegeven in het fenomeen van nudges, ‘overheidsduwtjes in de gewenste richting’. Wat is het verschil tussen nudging en dwang en hoe verhoudt nudging zich met andere overheidsinterventies zoals drang, overreden, en advisering? Hebben de rechtsstaat en mensenrechten iet s te zeg gen over deze technieken, of beperkt het recht enkel dwang door de overheid en laat het nudging geheel over aan beleidsmakers? Waar staat het CST in dit breder verhaal over overheidstechnieken?, The Corona Debate and the use of the Covid Safe Ticket (CST) has given us new insights into the phenomenon of nudges, "government pushes in the desired direction". What is the difference between nudging and coercion and how does nudging relate to other government interventions such as coercion, persuasion, and counseling? Do the rule of law and human rights have anything to say about these techniques, or does the law only limit coercion by the government and leave nudging entirely to policy makers? Where does the CST stand in this broader story of government techniques?

Introduction: Low grip work and high feelings of self-perceived fatigue could be an early characteristic of decline in reserve capacity, which comes to full expression as physical frailty in a later stage. When grip work and self-perceived fatigue can be identified as characteristics differentiating between robustness and pre-frailty it might allow to identify pre-frailty earlier. Therefore, this study aimed to investigate whether the combination of grip work and self-perceived fatigue is related to pre-frailty in well-functioning older adults aged 80 and over. Methods: Four-hundred and five community-dwelling older adults aged 80 and over (214 robust and 191 pre-frail) were assessed for muscle endurance (grip Work corrected for body weight (GW_bw)), self-perceived fatigue (MFI-20) and frailty state (Fried Frailty Index, FFI). A Capacity to Perceived Vitality ratio (CPV) was calculated by dividing GW_bw by the MFI-20 scores. ANCOVA analysis (corrected for age and gender) was used to compare robust and pre-frail older adults, and binary logistic regressions were applied to analyze the relationship between CPV and pre-frailty status. Results: Pre-frail older adults who scored negative on the exhaustion item of the FFI still showed significantly lower GW (p < 0.001), CPV ratios (p < 0.001) and higher self-perceived fatigue (p < 0.05) compared to the robust ones. The likelihood for pre-frailty related significantly to higher age, being men and lower CPV ratios. In women, every unit increase in CPV ratio decreased the likelihood for pre-frailty by 78% (OR 0.22; 95% CI: 0.11–0.44), for men this effect was less strong (34%, OR 0.66; 95% CI: 0.47–0.93). Conclusions: Pre-frail community-dwelling persons aged 80 years and over without clinical signs of exhaustion on the FFI still experience significantly higher fatigue levels (lower Grip Work, higher self-perceived fatigue and lower CPV levels) compared to robust ones. CPV ratio could therefore be a good tool to identify subclinical fatigue in the context of physical (pre-)frailty.

The European Public Prosecutor’s Office (the ‘EPPO’) necessarily processes personal data in order to fulfil its mission; As such, it falls squarely within the European Union (EU) data protection regulatory landscape. However, because the EU data protection regulatory landscape itself is currently found at a crossroads, an analysis of the EPPO data protection model may be twofold: First, placing it within the proper cross-organization dialogue currently taking place on the future regulatory model of personal data processing for law enforcement purposes carried out at EU level. Second, at an EPPO-specific level, whereby the actual data protection regime afforded to it may be assessed. This article purports to elaborate upon the above two data protection dimensions of EPPO personal data processing activities: It presents considerations and policy options during the lawmaking period that resulted in the establishment of the EPPO, it analyses the data protection regime ultimately awarded to it and attempts to, critically, place the EPPO data protection model within its proper operational and legislative environment.

On 19 November 2019 the Council of Europe hosted an international conference, immediately preceding the annual plenary meeting of its Committee of Convention 108, on "Convention 108 + and the future data protection global standard". One of the authors made a presentation on "Comparing the EU and Council of Europe approach to Big Data", and it is its contents and findings that are further elaborated in this paper; Its aim is, in essence, to incorporate the feedback received and to adapt past research on Big Data, that was mostly relevant to the EU, also on the Council of Europe data protection system. After a few preliminary remarks on Big Data terminology and possible regulatory approaches, Big Data regulation is examined against the EU and the Council of Europe data protection systems. Particular emphasis is given to the Council of Europe regulatory approach both in terms of Convention 108 + and with regard to its Guidelines on Big Data and AI. The authors believe that, because both the EU and the Council of Europe have avoided to refer to Big Data in their basic data protection regulatory texts (a most likely intentional omission), guidance is indeed needed, and it may well come in the form of soft law. The Council of Europe has taken the lead in this through its Guidelines; Their timely, comprehensive and balanced approach showcases the Council's will for such processing to indeed take place, but within a well-regulated environment, albeit not under a rigid regulatory construction. (c) 2020 Paul de Hert and Vagelis Papakonstantinou. Published by Elsevier Ltd. All rights reserved.

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

This contribution offers to steer a discussion on the constitutive stance of fundamental rights in Western legal systems. The story of the democratic constitutional state, a story of rule of law and human rights, is an already 250 year old utopia, which strangely persists despite long-standing patterns of slavery, war, torture, poverty, hunger, deportations, racism, and other unfavorable matters to human rights. This paper aims at questioning this perpetual paradox. After a historical assessment of human rights, we maintain that the traditional narrative emerges as the result of an interchangeable religious process: human rights as the gospel of a secular religion. Despite this, our perspectives on the rights apparatus can be adjusted by a more realistic vision of legal practices. Under certain conditions, human rights can function as legal crowbars in courts. With the crowbar metaphor, we adopt a constructive and pragmatic approach to human rights. Yet, what stands out is an expectation to move beyond the human rights axioms, rather than an endeavor to fix them. Ultimately, we suggest that other less toxic frameworks could replace traditional human rights narratives as constructs that may better realise our hopes.

The COVID crisis was tackled in Belgium with an emergency procedure of ministerial decrees, relying on the 2007 Civil Security Law, a law that is actually intended to allow for quick and temporary intervention in case of disasters such as large explosions or fires. Despite the Council of State’ findings (“this law allows curfews”), this law is both inappropriate and dangerous: without parliamentary debate, it allows far-reaching restrictions on fundamental rights for long periods of time. In the Netherlands, too, the curfew was socially and legally controversial. There, too, there were calls for new legislation on lockdown and other police measures in the event of health crises. The discussions in Belgium and the Netherlands are therefore similar, although the Dutch Constitution and legislation is clearer, (but not enough) with regard to the possibility of declaring a state of emergency and combating infections on a large scale. Obviously, it makes sense, from a concern for the rule of law, to rewrite the Constitution and legislation. New safeguards for new, far-reaching infectious disease control measures for the unhealthy and healthy part of the population .... Who can be against that? This contribution is cautious about the usefulness of exemption legislation. Looking at the health crisis, and older crises such as the 9/11 crisis (terrorism), we pay attention to processes of power accumulation of the government, and the executive in particular, made visible by such a crisis, but made possible by inconspicuous processes such as technology thinking (the head) and digitization processes (the practice). This diagnosis draws on insights from Arendt, Ellul, and Jonas about modern, often subtle coercive mechanisms for which the traditional legal-state framework is not or hardly equipped although they have been frequently applied in recent years. For this reason, the traditional legal-state framework has been contaminated not only by digitization processes and power growth of police and government, but also by mobilization of mechanisms such as fear, peer pressure and techno-hypnosis. After an exploration of the concepts of individual and collective emergency (sections 1 & 2), I emphasize the international obligation to shape a balanced constitutional and legal system on emergency states. In- deed, fundamental rights oppose an “emergency breaks law” police system (section 3). Smart pandemic laws and other exception laws are sector-specific, time-limited, and based on the requirements of crisis management (on cyclical management) and the rule of law (including a role for reviewing judges) (section 4). Nevertheless, the times are not suitable for building a balanced constitutional and legal system on emergency situations. In a second part of the contribution (sections 5 to 9), I explain what makes these times an unfavorable codification time for good practices. There are simply too many bad practices, (I use the term “infections”). In that examination of legal infections, I dwell, as I said, on mechanisms of fear, peer pressure, and techno-hypnosis, and on increases in government and police power through digitization and through “ordinary” laws enabling “extraordinary” police powers. Brand new legislation on health crises (‘the Pandemic Law’) turned out to be no more than a plaster on a deeply festering legal wound, and this explains why the ‘new’ Belgian Pandemic Law is only briefly mentioned at the and as a post scriptum., The Contaminated Rule of LawThe COVID crisis was tackled in Belgium with an emergency procedure of ministerial decrees, relying on the 2007 Civil Security Law, a law that is actually intended to allow for quick and temporary intervention in case of disasters such as large explosions or fires. Despite the Council of State' findings ("this law allows curfews"), this law is both inappropriate and dangerous: without parliamentary debate, it allows far-reaching restrictions on fundamental rights for long periods of time. In the Netherlands, too, the curfew was socially and legally controversial. There, too, there were calls for new legislation on lockdown and other police measures in the event of health crises. The discussions in Belgium and the Netherlands are therefore similar, although the Dutch Constitution and legislation is clearer, (but not enough) with regard to the possibility of declaring a state of emergency and combating infections on a large scale. Obviously, it makes sense, from a concern for the rule of law, to rewrite the Constitution and legislation. New safeguards for new, far-reaching infectious disease control measures for the unhealthy and healthy part of the population .... Who can be against that? This contribution is cautious about the usefulness of exemption legislation. Looking at the health crisis, and older crises such as the 9/11 crisis (terrorism), we pay attention to processes of power accumulation of the government, and the executive in particular, made visible by such a crisis, but made possible by inconspicuous processes such as technology thinking (the head) and digitization processes (the practice). This diagnosis draws on insights from Arendt, Ellul, and Jonas about modern, often subtle coercive mechanisms for which the traditional legal-state framework is not or hardly equipped although they have been frequently applied in recent years. For this reason, the traditional legal-state framework has been contaminated not only by digitization processes and power growth of police and government, but also by mobilization of mechanisms such as fear, peer pressure and techno-hypnosis. After an exploration of the concepts of individual and collective emergency (sections 1 & 2), I emphasize the international obligation to shape a balanced constitutional and legal system on emergency states. Indeed, fundamental rights oppose an "emergency breaks law" police system (section 3). Smart pandemic laws and other exception laws are sector-specific, time-limited, and based on the requirements of crisis management (on cyclical management) and the rule of law (including a role for reviewing judges) (section 4). Nevertheless, the times are not suitable for building a balanced constitutional and legal system on emergency situations. In a second part of the contribution (sections 5 to 9), I explain what makes these times an unfavorable codification time for good practices. There are simply too many bad practices, (I use the term "infections"). In that examination of legal infections, I dwell, as I said, on mechanisms of fear, peer pressure, and techno-hypnosis, and on increases in government and police power through digitization and through "ordinary" laws enabling "extraordinary" police powers. Brand new legislation on health crises ('the Pandemic Law') turned out to be no more than a plaster on a deeply festering legal wound, and this explains why the 'new' Belgian Pandemic Law is only briefly mentioned at the and as a post scriptum.Key words: rule of law – crisis- COVID crisis and 9/11 – codifying best practices today or wait - mechanisms of fear, peer pressure, and techno-hypnosis -increases in government and police power through digitization

In this chapter, we focus on developments with regard to the legality principle in the context of surveillance in the realm of criminal law and intelligence work by secret services. A more rigorous interpretation of the legality principle in post-Klass surveillance case law certainly qualifies as one of the most remarkable developments in the European Courts’ case law on surveillance. In particular, we will show that the strict approach towards the legality requirement enshrined in Article 8 ECHR and adopted by the ECtHR in Huvig v France in the context of telephone surveillance has been reapplied in all of the following judgments of the Strasbourg Court and even adopted by the CJEU in the context of other surveillance practices.

The Law Enforcement Directive (EU) 2016/680 (LED) defines its basic principles, such as purpose limitation and data minimisation, differently than the General Data Protection Regulation (EU) 2016/679 (GDPR). This contribution is exploring the influence of those differences on new policing methods, in particular on the big data policing. After describing the data protection regulatory framework for law enforcement authorities in the EU, we explain our understanding of the notion of big data policing. We then critically interpret the purpose limitation and the data minimisation principle in the GDPR and the LED, thereby busting some myths about the LED, created by other academics. Finally, we explore the boundaries of the abovementioned basic LED principles, in an attempt to measure their success in finding the delicate balance between the high level of personal data protection and the contemporary law enforcement needs.Keywords: data protection, Law Enforcement Directive, criminal justice, big data, purpose limitation, data minimization

Why is Big Data absent in the recent basic data protection documents of the European Union (EU) and the Council of Europe (CoE)? Why not one single reference to Big Data practices - be it to regulate or to prohibit it - in the recent General Data Protection Regulation (EU) 2016/679, the Data Protection Law Enforcement Directive (EU) 2016/680 and the Modernised CoE Convention 108 for the Protection of Individuals with Regard to the Processing of Personal Data (Convention 108+)? Some actors in the policy field considered Big Data too dan- gerous and counted on existing data protection principles to tame the beast. Others simply ignored the phenomenon or were not aware of the potential benefits of Big Data for economy and governments (the rendez-vous was missed). Our discussion of no less than six recent initiatives, - standalone laws and soft law instruments - is an indication that Europe is embracing Big Data but is seemingly hesitant to confront Big Data within the classical paradigm (field) of data protection law. Concrete guidance for Big Data practices is now spread over multiple texts emanating outside the data protection field.

Over the past few years big data analytics have forcefully entered the mainstream. Admittedly, modern life would be inconceivable without the services afforded by this type of processing in the field of electronic communications. At the same time public administrations are increasingly discovering the benefits of big data analytics afforded to them by telecommunications operators. Nevertheless, despite public attention and high volumes of expert analyses, the majority of approaches on the challenges to personal data protection by this type of data processing remains theoretical; Tellingly, the EDPS speaks of the “black box” of big data analytics. However, the authors were able to open, and stare into, the “black box” of big data analytics in the electronic communications field in 2017 and 2018 in the context of GDPR compliance assessments. Their analysis first attempts to set the legal scene today, answering two crucial questions on scope and applicable law, before presenting a typology for a scalable and granular approach that the authors feel is necessary but nevertheless is missing from the text of the draft ePrivacy Regulation. The authors therefore conclude that processing requirements and particularities, as evidenced under the big data analytics paradigm, make necessary a much more detailed approach than the one afforded by the draft ePrivacy Regulation today. Until these needs are met, through the introduction of a new, fundamentally amended text, the authors suggest that the current regulatory framework and the mechanisms afforded by it be extended for an interim period, so as to afford legislators with the necessary space and time to revise their work.

Saudi Arabia grants nationality to an AI robot; the first “clash of robots” took place in Japan; and, Bill Gates suggests that robots start paying taxes. We believe that these developments justify new legal fiction interventions. Software has long now exceeded the intellectual property boundaries. It is no longer merely property; it has assumed life of its own. It does not matter that such life is imaginary today. Legal persons were brought to life through legal fiction intervention that was based on much less motivation – merely the human incentive for profit. Software is certainly connected today with profit, given that the world's most valued corporations are software companies. However, it has moved much further than that, to assume in many ways artificial life of its own. We think that it is time that the dichotomy between natural and legal persons, that has served humanity so well over the past centuries, now be trisected: A new, digital person, ought to be added to it.

The present deliverable outlines the TARES Impact Assessment method that the project intends to follow to conduct. This assessment is broader than just a data protection impact assessment (DPIA) pursuant to Article 35 of the General Data Protection Regulation (GDPR). It will not only include the objectives of the latter, but also refer to the ethical and societal concerns of the project (ethical impact assessment - ‘EIA’) and privacy aspects not falling under the data protection impact assessment (privacy impact assessment – ‘PIA’). The TARES impact assessment implies a proactive approach contributing to informed decision-making by considering potential consequences of the project, direct and indirect, to the rights and freedoms of natural persons, before its occurrence. An impact assessment evaluates the origin, nature and severity of impacts that the processing operations, real or hypothetical, of a specific project entail. The present impact assessment method intends to describe the steps to take in order to generate useful information to consortium partners and assist them in taking informed decisions about the development and deployment of the HR-Recycler technology. There is no one-size-fits all model for conducting impact assessments.

We start our contribution with a short section on the recent reforms to codify direct cooperation between law enforcement authorities and private actors (section II). After a discussion of the 2018 US CLOUD Act, we turn to the proposal of the European Union to facilitate cross-border access to electronic evidence, which was presented by the European Commission in April 2018 (e-evidence package) and the reform process at the Council of Europe to amend the 2001 Cybercrime Convention envisaging a similar mechanism and powers.The following section discusses the current MLA framework that regulates cooperation in criminal matters and exchange of evidence between the US and Europe (section III). The MLA system allows cooperation between enforcement authorities but does not foresee any basis for direct cooperation with private actors in other states. Nonetheless this practice was dubiously accepted by the regula- tory community on shaky interpretative grounds as permissible under Article 18 (on domestic production orders) and 32 (on extraterritorial data access relying on consent) of the Cybercrime Convention (see section IV).We then proceed in section V with the challenges this kind of relationship poses for state interests and for public international law and the individual concerned that is deprived by these informal practices of certain checks and guarantees built into the formal MLA system as stated above. This discussion includes issues surrounding data protection that arise from the kind of relationship that allows law enforcement authorities to have direct access to online evidence through cooperating directly with service providers and tech companies (see section VI). After a brief reflection on the weight of privacy and data protection in criminal law matters, we identify the relevant dos and don’ts in data protection law and clarify the relationship between our subject matter and the outcomes of the two Schrems judgments of the CJEU. In particular, the combination of the teachings of Schrems II (decided on 16July 2020) about the deficiencies in US law with those of the German Federal Constitutional Court on the proportionality of domestic produc- tion orders (BVerfG, 27 May 2020) might add to the relevance of data protection as an argument against informal trans-border co-operations (section VII). Lastly, we summarise our discussion and provide recommendations for further study and discussion (section VIII).

Volgens journalist Huib Modderkolk nemen de Belgische en Nederlandse overheden veel te weinig beschermende maatregelen tegen digitale hacks en sabotages. Hoe vermijd je dat de hele winkel platgaat? Meer dan vijf jaar lang heeft Huib Modderkolk, die schrijft voor een aantal Nederlandse kwaliteitskranten, zich verdiept in de wereld van cyberaanvallen en cyberhacks door particulieren (vaak vereenzaamde jongens), door schurken, door schurken in opdracht van overheden en door overheden zelf (politie en veiligheidsdiensten). In zijn boek Het is oorlog maar niemand die het ziet schetst Modderkolk boeiende portretten van al die actoren en van hun gangbare technieken om te hacken en te saboteren, of om hacks en sabotages op te sporen. Maar wat volgens Modderkolk veel te weinig gebeurt, is “het beschermen tegen hacks en sabotages”, zodat schandalen en rampen blijven gebeuren, ook in Nederland en België. “The problem of the many hands”, noemt Modderkolk dat. Op beleidsniveau pompt iedereen geld in digitale ontwikkeling, maar niemand investeert even fors in beveiliging van die digitale infrastructuur – iedereen hoopt dat “de anderen” dat wel zullen doen.

The objective of this analysis is not to list all existing issues and gaps related to informed consent and data protection in ICT research, but rather to highlight the most pressing and recently emerging issues and gaps. In particular, this Analysis focuses on several key issues, such as: the problematic role of informed and free consent in data processing for research purposes; definitory problems; consistency issues across the GDPR; and the most sensitive areas of data processing for research

After outlining the relevant regulatory provisions governing access to the Internet in the EU (section 2) and its Member States (section 3), and after summarizing arguments supporting the introduction of the right to Internet access, the authors seek to broaden the scope of social and legal debates on Internet access in the EU. In particular, they question (a) whether the Internet is a vital element to achieve a decent standard of living in the Gigabit society (section 4); and (b) whether it deserves a place alongside the fundamental rights or human rights (section 5) and under what conditions it could be incorporated among the EU fundamental rights (section 6). The following sections of the chapter reflect on the potential scope of a right to Internet access (sections 7 and 8) and how eGovernment could facilitate the introduction of such a right (section 9). Considerations about limitations of a right to Internet access are addressed in section 10. Access to the Internet is inherently an Internet governance matter and therefore its regulation should entail a multi-stakeholder debate. Access to the Internet then would be seen not only in a technical way as a communication service but as ‘the set of devices, services, facilities and skills that allow people to connect to and use Internet services, applications and content’. Perhaps, this shift in approach could strengthen the EU’s role within the broader context of Internet governance. The authors suggest that the EU debate on Internet access should employ a human rights-based approach to Internet access because the social benefits brought by the Internet cannot be defined by numbers. The authors conclude that acknowledgment or recognition of Internet access as a fundamental right would be valuable as it would encourage policy- and law-makers, as well as civil society, to reconsider the scope and limitations imposed on this right.

Online evidence has been indispensable in criminal matters but due to its transnational and volatile nature, there have been issues and challenges as regards access, transfer, and usage in criminal investigations and prosecutions. In recent years, practices have been established to overcome the hurdles of cross-border access to online evidence. One of these practices is direct cooperation between law enforcement authorities and data companies, the latter of which are mostly based in the US. While this cooperation has been less blatant and apparent in its earlier years due to the want of legal basis, law enforcement authorities have been less coy towards the practice more recently. The present contribution walks the reader through the recent developments on codifying the practice of direct cooperation between European law enforcement authorities and US data companies. These developments evince how law enforcement authorities are willingly and wittingly overlooking protective safeguards and issues that ought to be addressed and thoroughly discussed. By sanctioning a relationship of direct cooperation, not only are state interests affected, but likewise issues of trust, MLA rights, privacy and data protection are affected. There ought to be a thorough discussion on these issues and hopefully the lessons learned from the recent CJEU judgments and the German Federal Constitutional Court are taken into consideration.

The NIS Directive is the first horizontal legislation undertaken at EU level for the protection of network and information systems across the Union. During the last decades e-services, new technologies, information systems and networks have become embedded in our daily lives. It is by now common knowledge that deliberate incidents causing disruption of IT services and critical infrastructures constitute a serious threat to their operation and consequently to the functioning of the Internal Market and the Union. This paper first discusses the Directive's addressees particularly with regard to their compliance obligations as well as Member States’ obligations as regards their respective national strategies and cooperation at EU level. Subsequently, the critical role of ENISA in implementing the Directive, as reinforced by the proposal for a new Regulation on ENISA (the EU Cybersecurity Act), is brought forward, before elaborating upon the, inevitable, relationship of the NIS Directive with EU's General Data Protection Regulation.

Summary Background To date, the accuracy of bio-impedance (BIA) to assess body composition & sarcopenia in persons aged 80 and over remains unclear. Objective We aimed to evaluate the agreement between dual energy X-ray absorptiometry (DXA) and BIA equations to determine lean mass, as well as their suitability to identify sarcopenia. Design 174 community dwelling well-functioning persons (83 women, 91 men) aged 80 and over were included. Appendicular lean mass (ALM) was predicted using BIA-based equations available in literature, and compared to DXA outcomes. Through cross-validation and stepwise multiple linear regression, a new ALM-formula was generated suitable for this population. Results Literature-based BIA equations systematically overestimated ALM. The new prediction formula that we propose for the 80+ is: ALM = 0,827+(0,19*Impedance Index)+(2,101*Sex)+(0,079*Weight); R2 = 0,888; SEE = 1,450 kg. Sarcopenia classification based on our new BIA equation for ALM showed better agreement with DXA (k ≥ 0,454) compared to literature-based BIA equations (k Conclusions Despite the high correlation between both methods, literature-based BIA equations consistently overestimate ALM compared to DXA in persons aged 80 and over. We proposed a new equation for ALM, reaching higher agreement with DXA and thus improving the accuracy of BIA for this specific age group.

Purpose To identify the different fatigue items in existing frailty scales. Methods PubMed, Web of Knowledge and PsycINFO were systematically screened for frailty scales. 133 articles were included, describing 158 frailty scales. Fatigue items were extracted and categorized in 4 fatigue constructs: “mood state related tiredness”, “general feeling of tiredness”, “activity based feeling of tiredness” and “resistance to physical tiredness”. Results 120 fatigue items were identified, of which 100 belonged to the construct “general feeling of tiredness” and only 9 to the construct “resistance to physical tiredness”. 49,4% of the frailty scales included at least 1 fatigue item, representing 15 ± 9,3% of all items in these scales. Fatigue items have a significantly higher weight in single domain (dominantly physical frailty scales) versus multi domain frailty scales (21 ± 3.2 versus 10.6 ± 9.8%, p= Conclusion Fatigue is prominently represented in frailty scales, covering a great diversity in fatigue constructs and underlying pathophysiological mechanisms by which fatigue relates to frailty. Although fatigue items were more prevalent and had a higher weight in physical frailty scales, the operationalization of fatigue leaned more towards psychological constructs. This review can be used as a reference for choosing a suitable frailty scale depending on the type of fatigue of interest.

After having reflected about technologies and the role of non-political guidance in EU data protection law in previous editorials, I now turn to the thorny question about the proper place of data protection law. In search of a substance, I use Murakami’s imaginary to prepare for the worst: not all things, concepts and beings are blessed with substance. After having managed (lowered) possible expectations about the essence of data protection law, I turn to a first approach to understanding data protection law as a bundle of principles. Principles are powerful legal topoi that create seriousness about legal domains. They are defended by the best scholars and much appreciated by courts in their role as judicial lawmakers. They look God-given, but are man-made. Unable to fix their number and precise nature, I will challenge them by inflating their number.

Careful to avoid uninformed positioning, I limited myself in my previous contribution to a Science & Technology Studies (STS)-flavoured stance about the need for closer scrutiny of existing or novel technologies when considering the role of law and regu- lation. Detailed accounts of individual technologies allow better assessments of pos- sible ethical dilemmas created by these technologies. Although authors disagree about the degree of moral agency of artefacts or things, most agree that these are more than simple passive instruments. Things influence us and our perceptions about good and bad. Things act and interact. They mediate and impact on our moral understandings.9 Knowledge about how things do that is not easy. Latour, in particular, criticises every ideal of knowledge and mastery in this area. Technologies simply escape mastery. They are the source of a continuous paradox for humans that praise technology for its functional utility, for its neutrality (neither good or bad) and for it being a means toan end, while these technologies never cease to introduce a history of enfoldings, detours, drifts, openings and translations that abolish ideas like ‘function’ and ‘neutrality’. Latour therefore sheds a critical light on modern humans that have acquired the habit to dominate but fail to see that there are no masters anymore, no clear distinctions between means and end that would allow to identify crazed technologies and ‘to bind back the hound of technology to its cage’. Morality and technology interact, often in unpredictable ways, and there is a need to conceive another history, another reassembly of morality and technology. How Latour conceives this reassembly in practice is not clear. A process with open- ness for predictable and unpredictable outcomes could bring about the necessary dig- nity of both morality and technology, whereby we renounce the idea of putting the first on the side of means and the second on the side of ends. Latour is no believer in contemporary mantras such as more transparency,or more accountability, assessment and evaluation of options. Wrongly applied, these approaches would lead us again to the impossible ideal of mastery and knowledge of things.

Recent advancements in human-computer interaction, machine learning and in artificial intelligence hold the potential to influence both the curriculum and the pedagogy of school children. While the impacts of new technologies remain uncertain, ongoing research and innovation projects are already developing and testing such technologies in schools. This article builds on the experience of the authors as advisors for a Horizon 2020 (H2020) project conducting research with schoolchildren in twenty schools across the United Kingdom, Italy and Spain (the project MaTHiSiS). This contribution presents and discusses how the authors lived up to the obligation of conducting research in line with “ethical principles”.

In light of the ongoing story on the regulatory steps towards electronic evidence and transnational production orders, civil rights organizations have expressed both alarm and astonishment on the regulatory initiatives in the Council of Europe regarding transnational production orders. Member states of the European Union (EU) engage actively in soft law entrepreneurship by allowing themselves to obtain directly from service providers subscriber and other communications content. This has not only been done domestically through national laws but likewise on a multilateral level as EU member states are now seen drawn towards the Council of Europe. Within said Council of Europe, member states are now enabled to stretch the extraterritorial powers exercised by their law enforcement authorities in obtaining electronic evidence through a controversial Guidance Note and soon, a Second Additional Protocol. Interestingly, throughout these developments, the EU remained passive but as of late, has come up with proposals for the European Production and Preservation Orders, among others. The mixture of alarm and astonishment among civil liberties representatives about the decision making procedures at the level of the Council of Europe can be best understood in a broader regulatory context of policy enterpreneurship, rent-seeking behaviour and, overall, rational choice institutionalism. Comparing the Council of Europe with the EU, the structure of the former makes it the more attractive venue for policy actors such as law enforcement authorities to maximize their benefits at the least amount of costs. Being competitors in policymaking vis-à-vis cooperation in criminal matters, the EU can however lose its sociopolitical ascendancy over time as an institutional venue to discuss cooperation matters. In light of this, one should not forget that two Europes coexist. These coexisting realities are now being used to the advantage of laundering policies, testing which forum would maximize benefits the most. These developments should caution us that there might be a systemic failure in ensuring safeguards in criminal investigations are always in place.

This contribution looks at the legal grounds for data processing (‘when is one allowed to collect and use data on others?’) according to the General Data Protection Regulation (GDPR). It then addresses the specific regime for profiling both by solely automated and non-automated means. What is the most suitable lawful basis for this specific, sometimes controversial kind of processing? The vagueness and subjectivity of various relevant GDPR provisions in this matter can undermine legal certainty. Data protection principles such as transparency and overall fairness as enshrined in Article 5 GDPR may in this case serve as a resort to identify appropriate checks and balances. Additional understanding can be found outside data protection legislation—for instance, in competition law.

The right to data portability is one of the most important novelties within the EU General Data Protection Regulation, both in terms of warranting control rights to data subjects and in terms of being found at the intersection between data protection and other fields of law (competition law, intellectual property, consumer protection, etc.). It constitutes, thus, a valuable case of development and diffusion of effective user-centric privacy enhancing technologies and a first tool to allow individuals to enjoy the immaterial wealth of their personal data in the data economy. Indeed, a free portability of personal data from one controller to another can be a strong tool for data subjects in order to foster competition of digital services and interoperability of platforms and in order to enhance controllership of individuals on their own data. However, the adopted formulation of the right to data portability in the GDPR could benefit from further clarification: several interpretations are possible, particularly with regard to the object of the right and its interrelation with other rights, potentially leading to additional challenges within its technical implementation. The aim of this article is to propose a first systematic interpretation of this new right, by suggesting a pragmatic and extensive approach, particularly taking advantage as much as possible of the interrelationship that this new legal provision can have with regard to the Digital Single Market and the fundamental rights of digital users. In sum, the right to data portability can be approximated under two different perspectives: the minimalist approach (the adieu scenario) and the empowering approach (the fusing scenario), which the authors consider highly preferable.