With Republicans Backing Away From TPP, Does It Still Have Any Chance?

from the what-a-weird-year dept

We've pointed out before how topsy turvy things have become with the Trans Pacific Partnership (TPP) agreement lately, and it seems to be getting even more weird, but not for any good reason. As we've pointed out dozens of times now, actual free trade is a good thing for the world -- but the TPP agreement has very, very little to do with free trade. There are certainly some good things in the TPP when it comes to trade, including some stuff on helping protect the free flow of information on the internet, but it is significantly outweighed by numerous problems with the agreement that seem to have little to do with actual free trade and plenty to do with certain industries putting in place protectionist/mercantilist programs that are, in many ways, the opposite of free trade. The two areas that we've discussed at great length are the intellectual property section, which will force countries to ratchet up their laws (which runs against free trade) and the problematic corporate sovereignty provisions, that allow foreign companies to effectively block regulations that may make perfect sense for certain countries.

Historically, the way political support for trade deals in the US works breaks down as follows: Republicans support the deals strongly, with a simplistic mantra of "free trade is good, any free trade agreement must be good." They don't care much about the details (other than if a big company in their region wants some protectionist nugget in the agreement). Meanwhile, the majority of Democrats oppose the agreements, but again, often for simplistic and protectionist reasons. But, there are always a few "moderate" Democrats (i.e., Democrats who recognize free trade is actually a good thing overall) who support free trade and that's enough to get the deals passed. That's mostly how the TPP situation played out for the past few years.

Then the insanity of the 2016 Presidential election hit and everything went sideways.

On the Republican side, you've got Donald Trump, who is opposed to the TPP, but mainly because he doesn't understand international trade at all, and ridiculously seems to believe that everything is a zero sum game, and any trade agreement that helps other countries means we're "losing." The TPP is bad, but not for the reasons Trump thinks. And then you have Hillary Clinton, who had always been in the Democratic clump that supported free trade agreements, and who has always supported the TPP, despite now pretending not to. That's because Bernie Sanders was very much against it (also for mostly the wrong reasons!) and feeling pressure from the success of his campaign, she felt the need to come out against the TPP to avoid losing to Bernie.

So, you have both candidates claiming to be against TPP, but for weird reasons, and no one believing the Dem candidate, while no one quite understanding the GOP candidate. Meanwhile, the sitting President continues to push for the TPP even as the only two people likely to have his job in a few months insist they won't support it.

Now, throw into this mix the fact that Trump's railing against the TPP (again, for dumb reasons) is suddenly getting Republican voters to hate the TPP, and down ticket Republicans who have long supported the TPP are suddenly changing their tune. Senator Pat Toomey, a long time supporter of the TPP has now announced it's a bad deal and he's opposed to it. Of course, he actually spends most of his opinion piece (correctly!) lauding the benefits of free trade, but then says he's opposing it for a few reasons. His reasons are silly, though. It's mainly because the pharma industry has convinced him that the IP provisions in the TPP are too lax. Pharma pushed heavily for more ability to basically lock up their data and discoveries for a very long time, and thanks to Australia pushing back, there was a compromise here. So Toomey insists that's why he's now opposing:

About 46,000 Pennsylvanians have jobs in the life science and pharmaceutical sector, making it one of our state’s largest industries. TPP will make it too easy for other countries to steal innovations that we create in Pennsylvania and take the jobs tied to those innovations.

That's not true at all. What the TPP will do is actually mean that pharma will have an exclusive monopoly on certain things for not quite as long as they'd like. It won't make "stealing innovations" any easier.

Of course, the real reason for Toomey's about-face may have more to do with his re-election campaign:

Toomey's remarks arrive as public polls show him falling behind Democratic challenger Katie McGinty in one of the country's most crucial Senate races. They also come after months of rage against international trade fueled support for Trump and Bernie Sanders, and forced Democratic nominee Hillary Clinton to reverse course on the pending deal. McGinty has opposed the TPP and blasted Toomey over his stand on it.

"Pat Toomey has spent his entire career pushing bad trade deals and policies that ship Americans jobs overseas, so nobody is buying this ridiculous flip flop," McGinty said in a statement.

So, this topsy turvy election year, it's becoming increasingly clear that the TPP might not actually have the support it needs to get ratified in the US. If Republicans are bailing on it (and the top of the ticket screaming about how horrible it is), it's difficult to see how it can gain enough support. There is the popular theory that no matter what happens, in the lame duck session after the election, everyone will revert to their earlier positions and push the damn thing through, but if trade continues to be an issue in the election, doing so will create a huge amount of public anger.

So, in the end, there are a lot of reasons why the TPP may die on the vine... even if all of the reasons for it doing so will be pretty bad.

Filed Under: corporate sovereignty, donald trump, free trade, gop, hillary clinton, intellectual property, isds, pat toomey, politics, tpp, trade agreements

Colorado Republican Committee Tries To Use CFAA To Get Even With A Bogus Tweeter, Fails Completely

from the the-law-even-little-people-can-(attempt-to)-abuse dept

How do we know the CFAA is a terrible law? Because even "civilians" abuse it. Or at least try to.

Back in April, the Colorado Republican Committee's (CRC) Twitter account tweeted out something a bit concerning after Ted Cruz nailed down all 34 delegates at a committee assembly in Colorado Springs.

If you can't see the tweet, it says:

We did it. #NeverTrump

The tweet was taken down minutes later and the official Twitter account explained that someone with "unauthorized access" had posted the tweet and it was not a reflection of the Colorado GOP's official stance.

This led to a brief internet wildfire, where CRC reps were interviewed by reporters about the tweet and enraged Trump supporters [also: 4chan] -- believing the fix was in -- began posting threatening messages to and about Colorado GOP leaders. So far, so internet.

The CRC took this a step further though, attempting to sue the "Doe" with allegedly "unauthorized access" for breaching the "threat to public health or safety" clause of the CFAA. The original complaint [PDF] shows the CRC is perhaps far better at electioneering than investigating.

Over the next three weeks, the CRC conducted an investigation into the origin of the tweet. CRC was able to confirm that the fraudulent tweet was sent using the Twitter for iPhone app, but was not able to determine the identity of the responsible individual.

Um. (Source.)

Armed with info that anyone else could have obtained in seconds rather than weeks, the CRC decided it could mass email the perp into turning themselves in:

On April 19, 2016, the CRC sent an e-mail to all individuals who had at one point been authorized to access to the @cologop account asking that they identify themselves by 5:00pm on Wednesday, April 20, 2016 if they were responsible for the fraudulent tweet.

Unsurprisingly, this failed to uncover the perpetrator. It also made it clear that, until this point, the keepers of the official Twitter account never considered that telling formerly authorized users not to use the account is way less effective than actually revoking their access by changing the password.

The court was unimpressed with the original complaint and ordered the plaintiffs to show cause or GTFO. The amended complaint [PDF] contains much more detail, including the supposed expenses incurred as a result of the short-lived tweet. Apparently, everyone involved in the "investigation" spent "hours" determining that someone used an iPhone to send the tweet.

CRC’s internal staff spent hours communicating with its past and present thirdparty vendors to ascertain if any of their personnel accessed CRC’s Twitter account.

CRC’s internal staff also spent hours communicating to Twitter over the phone and through emails.

CRC’s officers and staff spent time responding to the press over the tweet.

Some of those hours were billable, so to speak.

At least 70 percent of Kohli’s time for the week following the assembly and convention and at least 25 percent of the following week was spent responding to the aftermath of the tweet, including making numerous phone calls and emails about CRC’s progress in identifying the anonymous tweeter, determining who had access to the @cologop Twitter account, and answering media requests. This resulted in a loss to CRC of at least 70 percent of his time for one week and 25 percent of him time for another week. Since his annual salary is $65,000, this loss totals at least $1,187.50.

Internet molehill having been sufficiently mountained, the amended complaint goes on to detail the threats received by CRC officials before trying to claim these threats were somehow induced by a tweet that, itself, was not threatening in any form.

Defendant’s conduct in sending the fraudulent tweet caused damage to CRC in the form of death threats to its officers and employees, closure of its offices, and harm to its reputation.

The threats received by the CRC, its officials, and personnel constituted a threat to public health or safety within the meaning of 18 U.S.C. § 1030(c)(4)(a)(i)(IV).

And there's the CFAA tie-in.

Even with certain deficiencies addressed, the CRC still can't assemble a claim that the court can move forward with. The judge has dismissed the complaint in its entirety, pointing out that just because certain things happened after another thing happened doesn't mean the first thing that happened (the bogus tweet/"unauthorized access") is directly responsible for statements made by a bunch of other internet denizens. (h/t Raul)

CRC argues that its Amended Complaint cures the defects addressed in the Court's Order to Show Cause, specifically: (i) it identifies time spent by its staff investigating the unauthorized access as the "loss" that it suffered under 18 U.S.C. § 1030(e)(11), (g); and (ii) that the "threat to public health or safety" required by 18 U.S.C. § 1030(c)(4)(A)(i) and (g) is satisfied by allegations that it was reasonably foreseeable that the publication of the unauthorized message would induce third parties to respond with threats of harm to CRC officers. Although the Court accepts the first proposition, it finds the second to be deficient as a matter of law.

In the Order to Show Cause, the Court previously addressed why 18 U.S.C. § 1030(g)'s "involves" language requires a plaintiff to allege that the unauthorized computer access itself poses a risk to public health or safety, and that the requirement is not satisfied by an allegation that the unauthorized access indirectly caused such a risk to emerge from another source. CRC's response cites to various cases that have used the term "caused" in discussing other provisions of the Act.

The Court finds these cases to be off-point and unpersuasive.

Fortunately, the court takes the CFAA's public health and safety clause and presents a narrow reading of it -- somewhat of a rarity in CFAA-related cases.

As discussed previously, the threat requirement might be met if the unauthorized access disables computers or deletes data essential to providing medical treatment, public utilities, or emergency response services, but not where the unauthorized access has a benign primary effect but induces others to harmful acts. For example, a user who hacks into the social media account of a classmate and encourages him or her to commit suicide might be liable for engaging in conduct posing a risk to health and safety, but a user who hacks into the same classmate's account and merely taunts the classmate for being unattractive cannot be said to have engaged in conduct threatening public health and safety even if the now-despondent classmate reacts to the taunting by committing suicide. Such example entails the user specifically employing the unauthorized access to bring about the risk to public health, and in such circumstances, the use of a predominantly criminal statute to afford civil relief might be proper. The latter example draws upon the complex, wide-ranging, and sometimes attenuated principles of tort causation, importing that sprawling and imprecise inquiry into a statute that was clearly intended to have a narrow, focused reach.

While the fallout of the bogus tweet may have been inconvenient and surrounded by threats from irate GOP members (oh, and 4chan...), the tweet itself was not threatening nor did it call for threats to be made. That one led to the other is undeniable, but it was in no way definitely foreseeable that the tweet would have this effect.

The CRC's complaint is, at best, an expensive windmill tilt, tossed into court solely for the purpose of exposing the "unauthorized" tweeter to angry CRC officials. It has nothing to do with CFAA violations -- which were apparently added to make a federal case out of the CRC's failure to address its own operational security issues until it was too late.

Filed Under: cfaa, cfaa abuse, colorado, gop, tweets
Companies: twitter

Now In Charge Of Congress, GOP Plans To Give Up Its Own Constitutional Powers To The Obama Administration

from the say-what-now? dept

As you've probably heard, the Republicans decisively took control over Congress in the election on Tuesday, and are now strategizing on exactly what plan they'll choose to try not to mess things up too badly by the time the 2016 elections come around. The Washington Post has a short segment on the "quick votes" the GOP is planning for January to show that rather than blocking everything, it can actually pass some stuff -- including "fast track" legislation on trade agreements:

With the 2016 presidential campaign already looming large, McConnell (Ky.) and Boehner (Ohio) are both eager to shed the party’s image as an unruly collection of obstructionists and far-right ideologues.

The remedy, they have decided: Act quickly to send President Obama bills with bipartisan support to fast-track international trade agreements, repeal an unpopular tax on medical devices and approve the Keystone XL pipeline.

We've talked about this "Fast Track" authority for years (it's also referred to as "Trade Promotion Authority"). The issue is that, under the Constitution, Congress and not the executive branch, has the sole power "to regulate commerce with foreign nations." The executive branch has always been able to negotiate agreements, but it's Congress that has the power to regulate. "Fast Track" authority or Trade Promotion Authority is effectively Congress handing that right over to the executive branch, by saying that the only thing it can do when brought a trade agreement is vote up or down on the whole thing, rather than actually look at the details of the agreement and send the USTR back to fix the problematic parts.

You can understand why the USTR and the administration want the fast track to go, because it means they can actually promise things during negotiations that are more difficult to promise without that power. But it does seem very, very odd that a Republican Congress that seems to constantly complain about too much power in the executive branch, seems to have no problem whatsoever abdicating its Constitutional powers to that very same executive branch on major trade agreements that could reshape regulations worldwide.

Part of the problem, of course, is that people have been told that this is about "free trade" agreements -- and Republicans claim to be in support of free trade. But that's wrong. The big agreements, like the TPP and TTIP/TAFTA are not about "free trade" for the most part. Most tariff barriers have been chipped away for years. These agreements are about regulations and locking in certain regulations to limit the sovereignty of various nations to pass their own regulations. It's just protectionism in a different colored coat, dressed up to look like free trade -- complete with a dollop of extra sovereignty for corporations. Thus, it seems very odd that a Republican controlled Congress -- one that insists it's all about the Constitution -- has decided that it's first order of business is to give up one of Congress' main constitutional powers to an administration controlled by the opposing party.

Filed Under: congress, fast track, fast track authority, gop, republicans, tafta, tpp, trade agreements, trade promotion authority, ttip

If GOP Takes Senate Next Week, Expect The CIA Torture Report To Disappear

from the bye-bye dept

We've heard some mumbling about one of the main reasons that the CIA has been dragging its feet on declassifying the executive summary of the CIA torture report that the Senate Intelligence Committee put together: it knows there's a decent chance that the Republicans will win the Senate next week, and suddenly the report may disappear from view. As you may recall, the Intelligence Committee (with support from GOP Senators) voted to declassify the 480 page executive summary of the 6,300 page report (which the Senate spent $40 million putting together). Multiple leaks concerning the report have suggested that it's devastating and details how terrible the CIA's torture program was, how it was completely ineffective and how the CIA lied about it all.

But most of the support for releasing the report is coming from the Democrats on the Senate Intelligence Committee, led by Dianne Feinstein (who sides with the NSA on plenty of stuff, but is more willing to challenge the CIA). But if the Republicans take the Senate next week, then the chair of the Senate Intelligence Committee will likely shift to Senator Richard Burr, who has made it quite clear that he's on the CIA's team and against the public interest.

"I personally don't believe that anything that goes on in the intelligence committee should ever be discussed publicly," Burr told reporters in March. "If I had my way, with the exception of nominees, there would never be a public intelligence hearing."

It's also expected that Burr will try to muzzle Ron Wyden and Mark Udall (if Udall is re-elected, which is iffy at this point):

If Burr takes over as chair, he could easily sideline the committee's vocal civil libertarian bloc led by Ron Wyden (D-Ore.), and bolstered by Mark Udall (D-Colo.) and Martin Heinrich (D-N.M.), two senators who've called for Brennan's resignation.

Udall, in particular, drew blunt criticisms from Burr earlier this year for disclosing the existence of an internal CIA review of the detention and interrogation program that Democrats believe vindicates their own study.

"I think Mark did make some public releases that were committee-sensitive information, but that's for the committee internally to handle," Burr told reporters in March. "My concern is that the release of information could potentially cause the losses of life to Americans. That to me, is a threshold that should be addressed."

As for the torture report itself, Burr has already said that the report is inaccurate and he's against it being released in any form. When a group of religious leaders asked him to support releasing the report, Burr told them he didn't think the report was accurate:

Last year, Burr drew criticism from more than 190 North Carolina religious leaders, including Christians, Jews, Quakers, and Muslims, for opposing the release of the Senate's post-9/11 torture report.

"The U.S. does not condone torture, but torture has been done by our citizens and in our country's name," reads a letter the religious leaders sent Burr. "We are writing to you as fellow people of faith to support the release of the ... report."

Disappointing the religious groups, Burr responded in a letter saying he opposed making the report public due to factual inaccuracies contained within the report. "I believe the American public should be provided with reports that are based on accurate facts," he said.

Given all of this, if the GOP does win, it seems like the only way the public may ever see the details is if someone steps up and leaks the damn thing.

Filed Under: cia, congress, dianne feinstein, gop, republicans, richard burr, senate, senate intelligence committee, torture report

Republican Study Committee Dumps Derek Khanna, Author Of Copyright Reform Brief, After Members Complain

from the not-how-to-attract-the-next-generation dept

We'd heard this last week, but it's now been confirmed that, due to significant lobbying pressure by the entertainment industry and (even more so) the US Chamber of Commerce, Derek Khanna, the Republican Study Committee staffer who penned the first thoughtful policy brief on copyright reform to come out of US government offices in a long time, has been let go from his job. There was expected to be some staff turnover in January, as the new RSC leadership took place, but several Republican members of Congress explicitly asked incoming RSC boss Steve Scalise not to retain Khanna in response to the copyright brief.

If this is how the "new" GOP expects to interest young people, it seems to be going about it exactly backwards. Khanna wrote a thought-provoking paper that expressed views that many people believe to be true -- in a voice that is rarely heard in Congress. And, for that, he got fired. While the RSC and various copyright maximalists have been insisting that the paper was not properly vetted, we've had it confirmed that this is simply not true. The paper went through the standard procedure of any RSC brief, and was properly reviewed and vetted. It's just that once lobbyists hit the phones to various members of Congress (friends of Hollywood, mainly), pressure was put on the RSC to retract the document, and to jettison Khanna.

This is not going to interest very many young people, when a thoughtful critique of policy that finally raises issues that concern many leads to the staffer in question getting the axe. Khanna, for his part, has been valiantly continuing the conversation via his Twitter feed, but various lobbyists are now ensuring that elected officials can safely stick their fingers back in their ears.

Filed Under: derek khanna, gop, hollywood, rsc, steve scalise

Rep. Darrell Issa Wants To Make It Clear That You're Allowed To Rip Your DVDs

from the good-for-him dept

Back in October, we noted that in the latest triennial DMCA exemption review, the Copyright Office/Librarian of Congress refused to say it was legal for you to rip your own legally purchased DVDs so that you could watch them on a computer or tablet. That seems fairly ridiculous, especially given that similarly ripping your CDs is recognized as legal. Rep. Darrell Issa has apparently recognized how silly this and is planning a bill to fix the Copyright Office's mistake.

"We think we can write at least some clarifying language that would instruct the Copyright Office to more accurately define what is, in fact, fair use," Issa said in an interview [with Roll Call]. "People who make copies on their iPod for jogging are not the problem."

We won't see anything until the next session, but given that at least some of Issa's colleagues appear to agree that it's time to broaden fair use in copyright law, hopefully we can finally see some movement in Congress on bills that actually will allow greater creativity to flourish while also not making most of the nation lawbreakers for simply wanting to watch legally purchased DVDs without having to carry around the plastic discs.

Filed Under: copyright, darrell issa, fair use, gop, ripping

Don't Let Retraction Distract From The Simple Fact: GOP Copyright Policy Brief Was Brilliant

from the don't-forget-it dept

While there's been plenty of attention paid over the weekend to the fact that the Republican Study Committee (RSC), the conservative caucus of House Republicans, pulled its report on copyright reform after some entertainment industry lobbyists hit the phones/emails late Friday/early Saturday (and, no, it wasn't directly to RSC, for the most part, but to "friendly" members asking them to express their "displeasure" with the report to the RSC leadership). But we shouldn't let that distract from the simple fact that the report was brilliant -- perhaps the most insightful and thoughtful piece of scholarship on copyright to come out of a government body in decades. You can still read the whole thing as uploaded to Archive.org.

Some people have set up a petition at Change.org asking the RSC to republish and stand behind the policy brief. Others are saying you should contact your own Representatives directly and ask them to support the report. For example, Dave Weinberger wrote a wonderful letter to his own Representative, telling him that he should take a look at the report, and that he should use it as a starting point "for a conversation this country very much needs."

It seems unlikely that the RSC will bring it back, despite the quality of the report. But one hopes that the massive outpouring of support (seriously, just check Twitter) will lead politicians from both parties to recognize that sensible and smart copyright reform is a topic that gets people excited -- and one thing they're sick of is decades of both parties simply falling all over themselves to distort copyright to favor a few dominant Hollywood players.

Because the GOP has chickened out, we're going to try to do a series of posts analyzing the various aspects of the report, starting with the three myths about copyright it debunks, followed by four policy recommendations, to see if we can further the discussion. Look for those posts in the coming days and weeks.

Filed Under: copyright, copyright reform, gop, policy, policy brief, republicans, rsc

That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform

from the so-that's-how-that-works dept

So, late Friday, we reported on how the Republican Study Committee (the conservative caucus of House Republicans) had put out a surprisingly awesome report about copyright reform. You can read that post to see the details. The report had been fully vetted and reviewed by the RSC before it was released. However, as soon as it was published, the MPAA and RIAA apparently went ballistic and hit the phones hard, demanding that the RSC take down the report. They succeeded. Even though the report had been fully vetted and approved by the RSC, executive director Paul S. Teller has now retracted it, sending out the following email to a wide list of folks this afternoon:

From: Teller, Paul
Sent: Saturday, November 17, 2012 04:11 PM
Subject: RSC Copyright PB

We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community. Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand. As the RSC’s Executive Director, I apologize and take full responsibility for this oversight. Enjoy the rest of your weekend and a meaningful Thanksgiving holiday....

Paul S. Teller
Executive Director
U.S. House Republican Study Committee
Paul.Teller@mail.house.gov
http://republicanstudycommittee.com

The idea that this was published "without adequate review" is silly. Stuff doesn't just randomly appear on the RSC website. Anything being posted there has gone through the same full review process. What happened, instead, was that the entertainment industry's lobbyists went crazy, and some in the GOP folded.

Frankly, if they wanted to win back the youth vote, this was exactly how not to do it. If you just look through the comments on our post on the original, or through the Twitter response to this report, there were tons of people -- many of whom were lifelong Democrats -- claiming that they would switch parties if the GOP stuck with this. Instead, they folded like a cheap card table in less than 24 hours.

In the long run, that's going to hurt the GOP, because the people who were suddenly interested in supporting the GOP will assume that any such effort is subject to a similar bait-and-switch. Meanwhile, this leaves open an opportunity for the Democrats as well. The Republicans just came close to becoming the party that actually listened to what was important to young people today -- and they quickly changed their mind. The Democrats can sweep in and take the issue since apparently it's there for the taking. All they have to do is be willing to tell some Hollywood lobbyists to pipe down.

Filed Under: copyright, copyright reform, gop, lobbyists, rsc
Companies: mpaa, riaa