Chevron Lobbied For Corporate Sovereignty Rights In TAFTA/TTIP To Act As 'Environmental Deterrent'

from the they're-not-even-trying-to-hide-it-anymore dept

Back in 2014, Techdirt noted that arguably the most serious problem with corporate sovereignty was not the huge awards that could be imposed on countries, but the chilling effect the mere threat of those awards could have on national sovereignty. In that post, we quoted from a remarkable 2001 article in The Nation. A former Canadian government official in Ottawa revealed that numerous proposals for new environmental regulations had been dropped in the face of threats that NAFTA's investor-state dispute settlement (ISDS) framework would be used against Canada if it brought in new laws. The Techdirt post also mentioned a case in Indonesia, where a mining company dropped a corporate sovereignty case when it was offered "special exemptions" from a new mining law.

More recently, we've seen New Zealand put on hold its plans to require plain packaging for cigarettes, as a result of Philip Morris bringing an ISDS claim against the Australian government for doing the same. The New Zealand government was concerned it too might get hit, and so decided to wait. Now that the Australian case has been thrown out, New Zealand is pressing ahead with its plain packs legislation.

The chilling effects of corporate sovereignty are now so well established that companies are even beginning to cite them as a reason for including it in trade deals. The minutes of a meeting that took place between European Commission officials, and Chevron executives, obtained by The Guardian, make that plain:

"ISDS has only been used once by Chevron, in its litigation against Ecuador," say the minutes of a meeting in April 2014 between unnamed Chevron executives and European commission officials, which the Guardian obtained under access to documents laws. "Yet, Chevron argues that the mere existence of ISDS is important as it acts as a deterrent."

Chevron is talking about the multi-billion dollar award made against Ecuador in one of the longest-running and most complex disputes involving corporate sovereignty. When contacted by The Guardian, Chevron repeated its claim that ISDS was a really great weapon to wield against countries, although naturally it expressed that view in somewhat different language:

ISDS serves a useful function of encouraging investors and host states to negotiate in good faith in order to avoid escalation of disagreements that occasionally arise.

Aside from confirming people's worst fears about the chilling effects of corporate sovereignty, Chevron's candid admission that it wants ISDS in TAFTA/TTIP as a "deterrent" reveals something else. It shows that corporations not only demand a unique privilege to circumvent national legal systems using secret tribunals composed of corporate lawyers, but are now trying to craft yet another "right": to deploy routinely the mere threat of ISDS as a "deterrent" to government action. Or, as you and I would put it, the right to engage in raw, brutal bullying on a global scale.

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Filed Under: chilling effect, corporate sovereignty, isds, lobbying, tafta, tpp, trade agreements, ttip
Companies: chevron

The Incredible Corporate Sovereignty Saga Involving Ecuador And Chevron Continues

from the not-looking-good-for-the-poor-and-powerless dept

Techdirt has been trying hard to follow the twists and turns of one of the longest-running corporate sovereignty cases -- that involving Chevron and Ecuador -- for many years. Public Citizen's "Eyes on Trade" blog has a good, one-paragraph explanation of the key legal disputes:

In one of the Chevron v. Ecuador cases, a three-person tribunal last year ordered Ecuador's government to interfere in the operations of its independent court system on behalf of Chevron by suspending enforcement of a historic $18 billion judgment against the oil corporation for mass contamination of the Amazonian rain forest. The ruling against Chevron, rendered by Ecuador's courts, was the result of 18 years of litigation in both the U.S. and Ecuadorian legal systems. Ecuador had explained to the panel that compliance with any order to suspend enforcement of the ruling would violate the separation of powers enshrined in the country’s Constitution -- as in the United States, Ecuador's executive branch is constitutionally prohibited from interfering with the independent judiciary. Undeterred, the tribunal proceeded to order Ecuador "to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment [against Chevron]."

However, that's only a bare summary of the amazing events in this case, which include a filmmaker being forced to hand over footage to Chevron, email companies supplying nine years of metadata to the oil company, and Chevron's star witness admitting he lied in his sworn testimony. Probably the best explanation of the complicated story is a long, well-written feature in The New Yorker. That appeared in 2013 and concluded by noting that Chevron was appealing once more to an international tribunal in an attempt to block Ecuador's lawsuit. The arbitration court in the Netherlands has now handed down its verdict, reported here by Telesur:

A panel from the District Court of the Hague rejected Ecuador's arguments, stating that the country was bound to the terms of the bilateral investment treaty.

The panel also affirmed Chevron's claim that they could not be held accountable for the contamination since the Ecuadorean government certified the remediation work carried out by the oil company.

President Correa has questioned the legitimacy of that decision by the government of then president Jamil Mahuad.

"All of this is the product of corruption: having signed in 1998 that Chevron had cleaned 'everything'," said Correa Sunday via his official Facebook account.

As that makes clear, the tribunal seems to have based its decision in part on the fact that a previous Ecuadorean administration had agreed with the oil company that the contaminated land in question had been cleaned up sufficiently. The country's current president claims that was because of corruption at the time. So the tangled mess of this case now involves issues of the validity of that previous agreement, and what impact it has on the responsibility of Chevron.

The latest ruling by the international tribunal offers little hope that the Ecuadorean government affected communities will be collecting much, if any, of the final $9.5 billion awarded by the local courts -- Chevron prudently removed all its assets from the country many years ago. As Escobar is quoted as pointing out in the Telesur report:

Should Ecuador lose the final ruling by the investment tribunal, the price would ultimately be paid by the Ecuadorean people, as the state, in the face of international reprisals and without access to credit, would lose the ability to invest in social programs.

As usual, it's the poor and powerless that end up suffering -- and the lawyers involved in the corporate sovereignty tribunals who come out smiling.

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Filed Under: corporate sovereignty, ecuador, isds
Companies: chevron

Chevron's Star Witness In $9.5 Billion Corporate Sovereignty Case Admits He Lied

from the well,-that's-awkward dept

One of Techdirt's earliest posts on corporate sovereignty was back in October 2013, when we wrote about the incredible case of Chevron. It used the investor-state dispute settlement mechanism to suspend the enforcement of a historic $18 billion judgment against the oil corporation made by Ecuador's courts because of the company's responsibility for mass contamination of the Amazonian rain forest. Given the huge sums involved, it's no surprise that things didn't end there. As the site Common Dreams reports, in 2013:

Ecuador's National Court of Justice upheld the verdict but cut the initial mandated payment from $18 billion to $9.5 billion.

Chevron has repeatedly refused to pay the $9.5 billion ordered by Ecuadorian courts and even took the step of removing most of its assets from Ecuador in an apparent effort to avoid paying.

Chevron not only refused to pay, but asked a judge in New York to invalidate the claim. And that's precisely what happened in 2014, as Vice News explains:

California-based oil giant Chevron hailed a sweeping victory in a two-decade long legal battle in the Ecuadorian Amazon. A New York federal judge, Lewis Kaplan, ruled that a $9.5 billion Lago Agrio judgment leveled against the company by the small Andean country's highest court, was obtained by way of fraud and coercion.

Vice News notes that central to Chevron's case in New York was the testimony of Alberto Guerra, a former Ecuadorian judge:

In New York, Guerra testified that he had struck a deal between the plaintiffs [the Ecuadorian government] and the presiding judge [in Ecuador], Nicolas Zambrano: Guerra would ghostwrite the verdict, Zambrano would sign it, and the two would share an alleged $500,000 in kickbacks from the plaintiffs.

Pretty damning stuff, which seems to have played a major part in convincing the New York judge to dismiss the $9.5 billion award. But in a rather dramatic turn of events, the following just emerged:

Guerra has now admitted that there is no evidence to corroborate allegations of a bribe or a ghostwritten judgment, and that large parts of his sworn testimony, used by Kaplan in the RICO case to block enforcement of the ruling against Chevron, were exaggerated and, in other cases, simply not true.

In keeping with the rest of the case, Guerra's confession is not entirely straightforward, and it's not clear what really happened during the 2013 Ecuadorian court case -- it's worth reading the fascinating Vice News story to get the full details of the continuing confusion. It does appear that the advantage has passed back to the government of Ecuador in this high-stakes legal battle, but it's by no means over -- all thanks to corporate sovereignty's disturbing power to overrule otherwise "final" rulings from national courts.

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Filed Under: alberto guerra, corporate sovereignty, ecuador, isds, rain forest
Companies: chevron

DailyDirt: The Risks Of Fossil Fuels

from the urls-we-dig-up dept

Relatively cheap fossil fuels allow everyone to enjoy comfortable lifestyles. But every so often, there seem to be horrible stories of environmental damage caused by our continuing addiction to underground hydrocarbons. Pulling oil, coal and gas out of the ground is probably going to be the way we get most of our energy for the foreseeable future, so it's just a bit worrying that we haven't quite figured out how to really mitigate oil spills and other accidents. Fortunately, Mother Nature hasn't taken full revenge (yet?) on us.

• Recently, Chevron apologized for one of its natural gas wells exploding (and killing one person) by giving away coupons for free pizza to local residents. Some residents accepted the pizza apology as a thoughtful gift, but there are plenty of other people who voiced their opinion that the free pizza vouchers are an insult. [url]
• About 25 years ago, the Exxon Valdez spilled about 11 million gallons of oil into Alaska's Prince William Sound. Oil from that spill still lingers on the shore, and wildlife hasn't fully recovered yet. [url]
• The Exxon Valdez's 11 million gallons of spilled oil sounds like a lot, but during the Gulf War in 1991, hundreds of millions of gallons were spilled -- with estimates ranging from 300 to 500 million gallons. The spill was the deliberate action of Saddam Hussein, presumably meant to deter American troops from landing on the shore. [url]
• While BP is still dealing with the aftermath of the Deepwater Horizon accident, it just spilled a bit of crude oil into Lake Michigan, a few miles away from Chicago. Luckily, the cold weather makes it a bit easier to clean up as the oil solidifies into a wax-like substance. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: accidents, deepwater horizon, energy, environmental damage, fossil fuels, oil spills, prince william sound, valdez
Companies: bp, chevron, exxon

Why Tribunals Imposing Corporate Sovereignty Are Even More Dangerous Than We Thought

from the above-the-law dept

Back in October, we introduced the term "corporate sovereignty" as an alternative to the standard but misleading phrase "investor-state dispute settlement" (ISDS) that is generally used. We noted that perhaps the worst manifestation of corporate sovereignty so far can be seen in Ecuador, where one of the secret tribunals used in these cases had ordered the Ecuadorean government to place Chevron above the country's constitution.

A detailed and important post from Public Citizen's Eyes on Trade blog not only sketches the background to that extraordinary demand, but also explains how things have since become even worse:

Now Chevron is asking the same extrajudicial tribunal to order Ecuador's taxpayers to hand over to the corporation any of the billions in damages it might be required to pay to clean up the still-devastated Amazon, plus all the legal fees incurred by the corporation in its efforts to evade justice.

Yes, you read that correctly: the oil giant's latest outrageous plan is to force the Ecuadorean government -- and hence the people of Ecuador -- to pay for the massive clean-up of the damage Chevron's predecessor company, Texaco, caused to the country, its environment and local communities. As the Eyes on Trade post points out, this means:

[the ISDS tribunal] is acting as if the sovereign court ruling and two decades of trial never happened. In its recent decision, the tribunal barely made mention of the domestic ruling in Ecuador, or of the preceding 18 years of litigation spanning two nations. Many of the arguments that Chevron is bringing before the tribunal are the very same ones the corporation used before Ecuadorian courts -- arguments that were rejected. Rather than even examine the domestic courts' logic, the tribunal has invited Chevron to make the same arguments again as if for the first time.

The case of Ecuador shows how a company can use the corporate sovereignty chapter in international agreements to ignore years of adverse decisions by a country's highest courts, and to appeal to three arbitration lawyers who take no account of local legislation, practice or traditions, and are literally a law unto themselves.

But maybe Ecuador is just an exception: perhaps ISDS tribunals in other cases have been more respectful of national laws and existing decisions. New research from Gus Van Harten, associate professor at Osgoode Hall Law School of York University in Toronto, suggests otherwise. Studying 162 corporate sovereignty cases, Van Harten reports that 37% of them involved reviewing a government action, while 44% were about disputed legislation or judicial decisions. In other words, in these cases, ISDS tribunals were clearly placing themselves above a country's politicians and judges. Worryingly, Van Harten found:

there was little evidence that arbitrators demonstrated restraint in ways commonly adopted by domestic and international courts.

Moreover:

the field has apparently offered arbitrators a fertile environment for creative lawyering alongside expansive approaches to their authority.

Unlike traditional judges, whose scope for action is tightly circumscribed by national laws, tribunals that ruled on cases brought under corporate sovereignty clauses had far more leeway for interpretation or -- even worse -- "creative lawyering." Van Harten concludes:

In policy terms, the observations indicate a need for closer scrutiny by a range of actors -- such as national associations of legislators or judges -- of how arbitrators exercise their power and about whether their performance accords with considerations of public accountability, judicial restraint and basic even-handedness.

He also has some advice:

states facing a reasonable prospect of investor claims, or seeking protection for non-Western investors, should systematically assess their anticipated exposure or protection and consider their options to avoid downside risks.

Of course, one obvious way to avoid those risks is for nations to refuse to agree to corporate sovereignty chapters in the first place.

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Filed Under: corporate sovereignty, ecuador, investor state dispute settlement, isds, tribunals
Companies: chevron

Censorious, Abusive Spanish Anti-Piracy Firm Targets Chevron (Yes, Chevron) With Bogus Copyright Takedowns

from the who-do-you-root-for? dept

Here are two separate stories we've covered in the past that we never expected to link up. First up, there's the massive set of legal disputes that Chevron has been involved in down in Ecuador. The legal battles have been going on for 20 years and still continue. I won't get into all of the details there, but you can click that link to read the basics. We've actually written about this fight in a few more specific contexts over the years: (1) a few years ago, Chevron sought to force a documentary filmmaker to turn over some of the cut footage from his documentary, which Chevron won. The company claimed that the footage would help it get the lawsuits dismissed, whereas the filmmaker argued it was like forcing a reporter to give up his sources. (2) Just a few months ago, we wrote about how a judge in NY gave an incredible ruling, giving Chevron access to nine years' worth of Americans' email metadata, as they went in search of details about those who have fought the company concerning the case. (3) Even more recently, we wrote about how the whole "corporate sovereignty" concept -- better known as the boring-sounding (but extremely important) "investor state dispute settlement" -- was being used to try to kill off the $18 billion judgment against Chevron by the Ecuadorian courts.

Second, there's the strange case of Spanish "anti-piracy" firm Ares Rights, which didn't actually seem that interested in "anti-piracy" but in out-and-out censorship via copyright fraud on behalf of various Latin American countries. Ares Rights (correctly) realized that copyright notice-and-takedown provisions were a de facto censorship tool, and has used that to the maximum advantage possible, regularly issuing highly questionable copyright takedown claims to take down all sorts of content that might embarrass the governments of Ecuador or Argentina, even if they have no legitimate copyright interest in the material.

Now, however, Adam Steinbaugh alerts us to the news that Chevron itself has posted a blog post on a blog the company has dedicated entirely to the Ecuador lawsuit (yes, they have an entire blog on the topic) in which the company explains how Ares Rights has begun issuing a similar series of completely bogus takedowns on Chevron's own videos.

You may have noticed that our videos on The Amazon Post are currently down. In late November, Ares Rights, a firm based in Spain that claims to be “devoted entirely to the defense of rights on the Internet,” filed copyright infringement claims against videos legitimately posted to YouTube by Chevron.

Chevron also chides Ecuador for its recent attempts to "rebrand" itself as the "home of internet freedom" at a time when it's doing plenty of things that suggest it is not a fan of internet freedom at all.

Chevron claims that it's working to get those videos back up, and details past abuses of copyright law for the sake of censorship by Ares Rights. No matter what you might think of Chevron, it's difficult not to think that, if the company decided to pursue Ares Rights with a DMCA 512(f) claim of misrepresenting the copyrights and seeking sanctions, the case could suddenly get very interesting. It would certainly be the most money ever behind establishing a 512(f) violation, and it would be nice to get a good ruling on that front in a case where the actions are especially blatant, obvious and censorious.

Filed Under: 512f, abuse, censorship, copyright, dmca, ecuador
Companies: ares rights, chevron

Court Gives Chevron Access To Nine Years Of Americans' Email Metadata

from the seems-a-bit-extreme dept

For a few years now, we've been following a rather troubling legal fight between people in Ecuador and Chevron -- the oil giant that has been in a long-term legal battle with people in Ecuador over some of its actions in that country. A few years ago, we wrote about how Chevron was ordering a documentary filmmaker to turn over cut footage, claiming that it might exonerate the company (the filmmaker tried to hold it back, claiming it was protected under journalist shield rules). However, last fall, we noted something perhaps even more troubling. Chevron had issued subpoenas seeking various email info from Google, Yahoo and Microsoft going back years. As we noted at the time, they weren't seeking the content of the email, but the were seeking what many more people are now familiar with as "metadata." But, metadata can be quite revealing.

When we wrote about this case a year ago, it was under the context of one person, Kevin Heller, whose data was sought, and him successfully fighting back (with some help from the ACLU) getting Chevron to drop the request for his info. But, as for everyone else's info? Mother Jones alerts us to the news that a judge in NY recently said it was okay for Chevron to get all that metadata, in some cases going back nine years.

...a federal court granted Chevron access to nine years of email metadata—which includes names, time stamps, and detailed location data and login info, but not content—belonging to activists, lawyers, and journalists who criticized the company for drilling in Ecuador and leaving behind a trail of toxic sludge and leaky pipelines. Since 1993, when the litigation began, Chevron has lost multiple appeals and has been ordered to pay plaintiffs from native communities about $19 billion to cover the cost of environmental damage. Chevron alleges that it is the victim of a mass extortion conspiracy, which is why the company is asking Google, Yahoo, and Microsoft, which owns Hotmail, to cough up the email data. When Lewis Kaplan, a federal judge in New York, granted the Microsoft subpoena last month, he ruled it didn't violate the First Amendment because Americans weren't among the people targeted.

Leaving aside the fact that the court thinks it's okay to do this even if it's just "non-Americans" who have their privacy violated here, Mother Jones points out that this claim that it only targeted non-Americans isn't, in fact, true. Pesky details.

Now Mother Jones has learned that the targeted accounts do include Americans—a revelation that calls the validity of the subpoena into question. The First Amendment protects the right to speak anonymously, and in cases involving Americans, courts have often quashed subpoenas seeking to discover the identities and locations of anonymous internet users. Earlier this year, a different federal judge quashed Chevron's attempts to seize documents from Amazon Watch, one of the company's most vocal critics. That judge said the subpoena was a violation of the group's First Amendment rights. In this case, though, that same protection has not been extended to activists, journalists, and lawyers' email metadata.

The Electronic Frontier Foundation (EFF) represents 40 of the targeted users—some of whom are members of the legal teams who represented the plaintiffs—and Nate Cardozo, an attorney for EFF, says that of the three targeted Hotmail users, at least one is American. Cardozo says that of the Yahoo and Gmail users, "many" are American.

This seems like a pretty big problem, given the rationale of the judge initially. Beyond that, just the basic chilling effects from finding out that a giant company could get access like this to so much metadata on a large list of its critics is fairly incredible. As the article notes, while subpoenas on people who aren't actually parties to a lawsuit are "routine," they're not supposed to be mass fishing expeditions, which they appear to be in this case.

And, of course, even the whole "well they're not Americans so the First Amendment doesn't apply" thing is highly questionable -- since many of the accounts are anonymous internet users, and the First Amendment does protect online anonymity and there's no way for Chevron or the judge to know if the anonymous users are Americans or not.

Filed Under: ecuador, email, first amendment, metadata, privacy
Companies: chevron, google, microsoft, yahoo

Stuxnet's Infection Of Chevron Shows Why 'Weaponized' Malware Is A Bad Idea

from the cyberenemy-within dept

The Stuxnet worm that attacked an Iranian nuclear enrichment facility a couple of years ago was exceptional from several viewpoints. It is believed to have been the costliest development effort in malware history, involving dozens of engineers. It also made use of an unprecedented number of zero-day exploits in Microsoft Windows in order to operate. Finally, Stuxnet seems to be the first piece of malware known with reasonable certainty to have been created by the US, probably working closely with Israel.

As Techdirt reported earlier this year, we know all this largely because the malware escaped from the target environment in Iran, and started spreading in the wild. We now learn that one of the companies infected as a result was Chevron:

The oil giant discovered the malware in July 2010 after the virus escaped from its intended target, Mark Koelmel, Chevron's general manager of the earth sciences department, told The Wall Street Journal.

"I don't think the U.S. government even realized how far it had spread," he said. "I think the downside of what they did is going to be far worse than what they actually accomplished."

This highlights a huge problem with the use of malware by national security services to carry out these kinds of covert attacks on their enemies. Where a physical attack on a foreign nation is unlikely to cause direct casualties back at home -- although it may lead to indirect ones through retaliation -- attacks using worms and other malware are far less targeted. If they escape, as is likely to happen given the near-impossibility of controlling what happens to them once they have been released, they may well find their way back to the attacker's homeland, and start infecting computer systems there.

This makes the "weaponization" of malware an inherently dangerous approach. Imagine if a nation deployed worms or viruses that changed data on infected systems in subtle ways, and that these started spreading by mistake among that same country's health organizations or banks. Lives could be lost, and financial systems thrown into disarray.

That's something worth bearing in mind amid increasing calls for the development of software that can be used offensively: as well as the likelihood of tit-for-tat responses, there is also the very real danger that the weapon will turn against the nation that created it.

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Filed Under: stuxnet, weaponized malware
Companies: chevron

Chevron Subpoenas Google, Yahoo & Microsoft To Get Info On Email Accounts Going Back Years

from the intimidation-or-legitimate-evidence-gathering? dept

Chevron is embroiled in a big lawsuit with some folks in Ecuador that has been going on for 19 years, and resulted in an $18.2 billion judgment against the company for environmental damage in the country. Chevron is accusing the lawyer for the Ecuadorians of racketeering. A New Yorker article from earlier this year goes into significant detail about the case, including Chevron arguing that the whole thing is "a shakedown," and questioning whether or not the lawyer went too far in the case.

We actually wrote about this case a few years ago, when Chevron sought footage that a documentary filmmaker had taken of people involved in the case, including the lawyer, Steven Donziger. While it seemed like the filmmaker should have the right to protect the work like journalists protect their sources, a court ordered it turned over to Chevron. That footage turned out to provide info that Chevron believes shows evidence of racketeering in trying to influence the court decision. Here's the New Yorker describing some of what was in the footage:

As Mastro played a series of outtakes for Judge Kaplan, Donziger’s outspokenness was on full display. He riffed, indignantly, about the inadequacies of the Ecuadoran legal system. “They’re all corrupt,” he says of Ecuadoran judges in one clip. “It’s their birthright to be corrupt.”

... In one scene, a scientific expert for the plaintiffs tells him that one measurement of groundwater contamination was not as strong as he had thought. “This is Ecuador, O.K.?” Donziger says. “At the end of the day, if there’s a thousand people around the courthouse you’re going to get what you want.” As for the scientific data, he adds, it’s “just a bunch of smoke and mirrors and bullshit.”

[...] In another scene that Mastro showed to the court, Donziger chats with associates over dinner at a restaurant. Someone at the table, referring to the popular antipathy toward Chevron in Ecuador, suggests that if the judge in Lago Agrio ruled against the plaintiffs he might be killed.

“He might not be,” Donziger replies, cradling a glass of red wine. “But he thinks he will. Which is just as good.”

All of this, plus some other evidence led Chevron to go after Donziger for racketeering. And, as part of that, it has sent a subpoena to Google, Microsoft and Yahoo seeking information on more than 70 email accounts, claiming that this info may help them show that Donziger was "falsifying evidence from the outset of the trial in Ecuador." CNET notes that Chevron believes that among other things, the lawyers for the Ecuadorians may have been involved in "blackmailing a judge, ghostwriting expert reports, and even helping to draft the court's final opinion."

It's important to note that Chevron is not (yet) seeking the contents of the email, but a variety of information about the accounts -- such as IP address info, physical address, phone numbers and billing info (if available). The idea seems to be that Chevron believes some of the addresses have been faked, and this will help to show that. However, some of the requests clearly seem to be overly broad -- including going after law professor and blogger Kevin Heller, who was not happy about this. Heller was able to have the ACLU call Chevron on his behalf about this -- getting them to drop the request for his info. Chevron claims that this helped them prove that Heller's account belonged to a real person, which is all they're seeking, but Heller is justifiably upset about all of this, sensing significant chilling effects and worrying about possible intimidation.

I will likely never know why Chevron subpoenaed me. But I do know that it is unacceptable for a party to litigation to try to obtain private information from a blogger-journalist who has criticized its tactics. This is not about my journalistic freedom; it is about the journalistic freedom of all bloggers. And it is not about Chevron; it is about any party that thinks it is acceptable to subpoena a blogger’s private information. I would be no less critical of an attempt by Greenpeace to subpoena Glenn Reynolds. Tactics like this need to be exposed and resisted, no matter who uses them or whom they target; passive acquiescence is simply an invitation to further abuses.

Heller also goes after Google, his email provider, for not more actively fighting back on his behalf:

I also think that Google needs to do far more to protect the privacy of its users.  Twitter has been very active in resisting attempts to obtain its users’ private information.  Google has also done so in the past, but it did nothing to help me, even after I informed it via email that I was a law professor and a blogger-journalist.  But again, this isn’t about me.  It’s about all the other bloggers who might find themselves facing a similar subpoena.  I’m lucky: I have friends like Glenn Greenwald to ask for help. I’m sure that the ACLU would assist anyone in my position — but not everyone knows that the ACLU is out there, much less that no case is seemingly too small or too unimportant for them to be concerned.  More importantly, the ACLU should not have to get involved in every case like this one (and again, I am but one of 44 people named in the subpoena); Google itself — and all other service providers in similar situations — need to be the first line of defense.

Google has asked the judge for more time to respond to the subpoenas, which Chevron has already agreed to. The magistrate judge is also going to hold a hearing in a few weeks to "evaluate" the subpoenas. Microsoft told Declan McCullagh at CNET that it had provided notice to the Microsoft accounts in question. Yahoo didn't respond to McCullagh's questions about the subpoenas, so it's unclear what they've done.

There may be legitimate reasons for Chevron's request, but given Heller's experience, it certainly appears that the fishing expedition is overly broad, and could have significant chilling effects in intimidating people who were legitimately helping out with the case. That should be a big concern, and the judge should be exceptionally careful in making the companies reveal info on these email accounts. We've talked in the past about things like the Dendrite rules for determining when possibly identifying info on anonymous people should be allowed, as it sets a high bar that protects a person's right to anonymity. Hopefully the court recognizes that Chevron's requests seem to go too far.

Filed Under: chilling effects, ecuador, email, privacy, steven donziger, subpoenas
Companies: chevron

Crony Capitalism: Big Companies Sponsor Fancy Dinner For TPP Negotiators

from the not-cool dept

We've talked about the ridiculous Trans Pacific Partnership (TPP) agreement negotiations, which are being held with incredible levels of secrecy, and which appear to include a wishlist of every copyright reform change that Hollywood wants, with little to no public scrutiny. The USTR, who's in charge of negotiating the agreement for the US claims that there's unprecedented transparency -- and that may be true if you're talking about the unprecedented lack of transparency in the negotiations. And where it gets really ridiculous is that while the public has no access to the information, the big company lobbyists have pretty much full access. We already spoke about the recent meetings in Hollywood, where TPP negotiators got to party with the Hollywood elite -- but civil society/public interest groups who tried to hold an open meeting in the hotel (and reserved space and everything) were kicked out of the hotel.

The latest is the news that tonight (as we post this), a bunch of big companies who employ some of the key lobbyists supporting the extreme nature of TPP... are hosting a fancy, expensive dinner in Washington DC. The dinner is sponsored by the US Chamber of Commerce, Philip Morris, Chevron, PhRMA, Microsoft, Pfizer, Amgen, Dow Chemical, among others... and the ambassadors from the TPP countries will all be in attendance (though we've heard, but don't have confirmation, that Australia just pulled out after realizing how bad this looked).

The next round of TPP negotiations take place next week in Australia, so it's nice that the corporate interests pushing an extreme version of the agreement get to wine and dine all of the key negotiators at an expensive and closed off dinner in DC, huh? Public interest groups? They just found out about the dinner today and (as you might expect) really aren't welcome.

What's amazing to me is how incredibly tone deaf the USTR and the US government is to how this appears. The USTR is negotiating a massive agreement that will change IP laws in pretty significant ways which clearly could favor some of these large companies. And just days before they're set to negotiate... they're letting some of the biggest special interests supporting an extreme vision for TPP buy them a fancy dinner? Even if you can believe that they're not actually influenced by this, do they not realize just how bad this looks?

Filed Under: copyright, crony capitalism, dc, dinners, sponsorship, tpp, trademark, ustr
Companies: amgen, chevron, dow chemical, microsoft, pfizer, philip morris, prma, us chamber of commerce