MPAA Throws Hissy Fit Over USTR Even Thinking About Expanding Fair Use In TPP

from the oh-you-poor-babies dept

We've been discussing the concept of "fair use" and how ridiculous it is that the USTR seems to be ignoring it. Back in 2012 there was great fanfare out of the USTR, when they said, for the very first time, they'd be including "limitations and exceptions" in the TPP proposal. "Limitations and exceptions" being a misleading euphemism for fair use (and some other related concepts all focused on the public's rights). However, as we noted soon after, the leaked text showed that while it was true that this would be the first such agreement that included such a concept, it only did so by limiting the ability of countries to implement a full fair use regime.

Then, with the latest leak of the negotiating text (from right before the most recent round of negotiations) we noticed how ridiculous it was that the fair use section was voluntary while all the sections on copyright enforcement were mandatory. Specifically all the enforcement sections said that countries "shall" implement this or that. But when it came to "limitations and exceptions" it just said that countries "shall endeavour to achieve appropriate balance." In other words: you have to ratchet up copyright law, but with fair use, you know, maybe think about it and try your best.

With all this going on, apparently some tech/internet folks have been complaining to the USTR, and the USTR is actually considering reopening the negotiation on that point to improve the fair use bit. According to Maira Sutton at EFF:

As of last month, it seemed that all of the TPP countries had agreed to this language. In late July, however, tech companies' renewed pressure seemed to have changed the game. The USTR offered to go back in and revise these provisions ahead of the last negotiation round. According to a spokesperson for the U.S. Chamber of Commerce, in exchange for support for the controversial Fast Track legislation, the USTR promised to make the TPP's exceptions and limitations language more permissive and be a requirement, rather than being purely a suggestion, for all TPP countries.

And... guess who went ballistic? Yup. Hollywood.

According to Inside U.S. Trade, rightsholder groups like the Motion Picture Association of America (MPAA) are "livid" about the USTR's move to revisit the language on exceptions and limitations. They're pushing back hard, urging members of Congress—including every House member from California—to pressure the USTR not to touch these closed provisions. Why? Probably not because revisiting the language will actually cause any real harm to creators. The more likely explanation is that the copyright maximalists are worried that their tight grip over the USTR is slipping.

This isn't all that surprising. Remember, as part of the Sony email leak, one of the emails showed MPAA boss Chris Dodd freaking out about the possibility that the TPP might include some sort of fair use. From the letter Dodd sent to USTR Michael Froman::

I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.

As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.

Amusingly, this is the same MPAA who ridiculously claims to love fair use. As Sutton notes, this reaction is almost certainly fear over losing lobbying control over the USTR -- a main channel through which it has pushed its agenda for the past few decades.

But there is another important point in Sutton's post: why should it require Google and other internet companies to step up before the USTR took this issue seriously? Plenty of us out here in the public have been arguing about this issue for years -- including in letters sent directly to the USTR. But we're totally ignored until "big industry" comes along and says the same thing. That's really messed up.

The big media lobbyists' theatrics over this minor amendment are embarrassing, but they do raise one important issue: our trade negotiators are a lot less interested in the needs of ordinary users and creators than the needs of powerful companies. Why else was a last-minute intervention by Google sufficient to bring the USTR back to the negotiating table on this topic, where the sustained interventions of EFF and 10 other major public interest groups from around the world were not?

These kinds of regulatory laundering efforts shouldn't be at the whims of big companies, whether or not you agree with the policies being pushed. I'm just as uncomfortable with internet companies pushing the agenda as I am with Hollywood companies doing so. This entire process has been a ridiculous lesson in corporate give aways with little interest for the public. The only thing "transparent" here is how the USTR is focused solely on the desires of big companies, with absolutely no concern for the public interest. That seems like a fairly big problem, especially considering that Congress basically abdicated its (Constitutionally-guaranteed) role to step in and block bad provisions of these agreements.

Filed Under: copyright, fair use, limitations and exceptions, public, public interest, tpp, ustr
Companies: google, mpaa

European Commission Consultation On Copyright Reveals Chasm Between Views Of Public And Publishers

from the now-they-can't-deny-it,-but-will-they-act-on-it? dept

In January of this year, we urged Techdirt readers to express their views on copyright by participating in the European Commission's consultation on the subject. It seems that many of you did, judging by the final numbers, which have just been published by the Commission (pdf):

The public consultation generated broad interest with more than 9,500 replies to the consultation document and a total of more than 11,000 messages, including questions and comments, sent to the Commission's dedicated email address. A number of initiatives were also launched by organized stakeholders that nurtured the debate around the public consultation and drew attention to it.

Some 5600 response came from the public, 2400 from authors/performers, and a thousand or so from companies. The European Commission has published an analysis of the comments on a question-by-question basis. This makes it slightly hard to get an overall sense of what the various sectors are saying, but fortunately Leonhard Dobusch has tackled that problem in an illuminating post on the Governance Across Borders blog:

I tried to have a look at the bigger picture here: what do we learn about the state of copyright at large? And what overall direction should copyright reform take?

Here's how he addressed those questions:

What I have done is to check for each of the 24 issue sections whether one of the respective stakeholder groups sees a need for copyright reform or is content with the current copyright system (for details check out a public Google spreadsheet with original quotes). The results are not entirely surprising and very clear: we have a strong divide among copyright stakeholders with end users and institutional users (e.g. libraries, archives, universities) strongly in favor of copyright reform and authors, collective management organizations, publishers and producers in favor of the current copyright system.

He then turned that information into two striking graphics:

For those that can't view those images, they show the public massively in favor of reforming just about every aspect of copyright, and publishers massively against doing so. As Dobusch writes:

the two charts above indicate that current EU copyright is very unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation. Given that a good compromise should leave everybody equally unhappy, the results of the consultation also show the direction for copyright reform efforts of the new EU Commission: re-balancing copyright requires at least some reform as demanded by end users and institutional users, most importantly a more harmonized and flexible system of exceptions and limitations.

This is what Techdirt and many others have been urging for years. What's important here is that with this significant response to the consultation, it is now impossible for the European Commission to ignore the chasm between the views of the public, hugely unhappy about the current imbalance of copyright, and those of the publishers, desperately trying to keep things as unfair and as profitable as they are currently. Whether the Commission does anything about it is quite another matter.

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Filed Under: copyright, copyright reform, eu, eu commission, europe, public, public interest, publishers

The Fifth Surveillance: Corporate Spying On Non-Profits

from the more-revolving-doors dept

In the age of innocence that was brought to an end by Edward Snowden's revelations, we broadly knew of three kinds of surveillance: the classic kind, by countries against other countries; the industrial kind, by companies against companies; and -- the most recent addition -- the Google/Facebook kind, carried out by companies against their customers. Snowden made us aware that countries also carried out large-scale surveillance against huge numbers of their own citizens, the vast majority of whom had done nothing to warrant that invasion of their privacy. But there's a fifth kind of surveillance that has largely escaped notice, even though it represents a serious danger for democracy and freedom: spying carried out by companies against non-profit organizations whose work threatens their profits in some way.

A new report called "Spooky Business" (pdf), from the Essential Information organization (founded by Ralph Nader in 1982), throws some much-needed light on this murky world:

The corporate capacity for espionage has skyrocketed in recent years. Most major companies now have a chief corporate security officer tasked with assessing and mitigating "threats" of all sorts -- including from nonprofit organizations. And there is now a surfeit of private investigations firms willing and able to conduct sophisticated spying operations against nonprofits.

As the study reveals, this kind of activity is now commonplace:

Many of the world’s largest corporations and their trade associations -- including the U.S. Chamber of Commerce, Walmart, Monsanto, Bank of America, Dow Chemical, Kraft, Coca-Cola, Chevron, Burger King, McDonald's, Shell, BP, BAE, Sasol, Brown & Williamson and E.ON -- have been linked to espionage or planned espionage against nonprofit organizations, activists and whistleblowers.

The victims of this spying, and the methods employed, are varied:

Many different types of nonprofits have been targeted with espionage, including environmental, anti-war, public interest, consumer, food safety, pesticide reform, nursing home reform, gun control, social justice, animal rights and arms control groups.

Corporations have been linked to a wide variety of espionage tactics. The most prevalent tactic appears to be infiltration by posing a volunteer or journalist, to obtain information from a nonprofit. But corporations have been linked to many other human, physical and electronic espionage tactics against nonprofits. Many of these tactics are either highly unethical or illegal.

Most of the report is devoted to describing some of the high-profile surveillance operations that have come to light so far. These are truly fascinating -- all-the-more so for being real-life spy stories, not works of fiction. Here's a sample, involving someone whose name and work have appeared many times on Techdirt:

James Love is the Director of Knowledge Ecology International, an organization that works to improve access to essential drugs, to reduce pharmaceutical drug prices worldwide, and to protect consumers in copyright. Love is an award-winning advocate; in 2006, KEI won a MacArthur Award for Creative and Effective Institutions, and in 2013, Love won a Pioneer Award from the Electronic Frontier Foundation.

Shortly after the passage of the Affordable Care Act, Love says he received a visit in his offices from a man who said he was recently let go from his job at Pharmaceutical Research and Manufacturers of America (PhRMA). "He said his job involved monitoring what I was doing, every day." Love said. "He told me that PhRMA had hired a private investigator to investigate us, from the West Coast." Separately, from 2007 to 2008, Love says that PhRMA and some companies in the copyright sector funded efforts to investigate the sources of funding for NGOs working on intellectual property issues, and to press those foundations to end their support of consumer advocacy.

Around 2008 or 2009, General Electric, Microsoft, Pfizer and other firms funded an effort by the National Foreign Trade Council (NFTC) to provide intelligence on NGOs working on intellectual property issues. Love says, "They approached someone we knew, with a proposal to provide information on Knowledge Ecology International and other NGOs working on intellectual property issues, as part of a program to counter NGO advocacy efforts on behalf of consumers." Eventually, Love says, the NFTC contracted with the Romulus Global Issues Management, an "international policy consultancy" that advises "several members of the Fortune 100." The managing partner of Romulus is John Stubbs, whose wife is Victoria A. Espinel, a former Romulus employee. Espinel was U.S. Intellectual Property Enforcement Coordinator (IP czar) for the Obama administration, and is currently the CEO and President of the Business Software Alliance (BSA).

One key fact to emerge from this litany of dubious activity, is how closely it is related to the other kinds of surveillance, and the groups that carry them out:

One of the troubling aspects of recent corporate espionage against nonprofits is the use of current and former police, current government contractors, and former CIA, NSA, FBI, military, Secret Service and other law enforcement officers.

Even active-duty CIA operatives are allowed to sell their expertise to the highest bidder, "a policy that gives financial firms and hedge funds access to the nation's top-level intelligence talent," writes Eamon Javers. Little is known about the CIA's moonlighting policy, or which corporations have hired current CIA operatives. According to Javers, "There is much about the policy that is unclear, including how many officers have availed themselves of it, how long it has been in place and what types of outside employment have been allowed." Regarding the CIA process for approving moonlighting, U.S. Rep. Anna Eshoo said "My sense is that it is a rubber stamp deal....No one’s really looking at it or keeping a close eye on it."

This intermingling of the various kinds of spying gives rise to a phenomenon that Techdirt readers know well:

In effect, the revolving door for intelligence, military and law enforcement officials is yet another aspect of the corporate capture of the federal agencies, and another government subsidy for corporations. Taxpayer funds are expended to train the officials who work for the CIA, NSA, Secret Service, military and other intelligence and law enforcement agencies. When these employees leave for employment in the private sector, corporations reap the benefits of this taxpayer-funded education, training and experience. It’s a great deal for the companies that hire these former agents, but not for taxpayers.

That fact is just one reason why we should be concerned about the rapid rise of this fifth form of surveillance. It's leading to a further blurring between government and commercial interests that places non-profit organizations and the people who work in them in an even more vulnerable position.

"Spooky Business" should be required reading for anyone working in this field. As well as detailing the highly-dubious -- and probably illegal -- activities of corporations here, it also suggests basic ways to reduce the impact of that surveillance. At a time when it's clear that multiple kinds of spying are on the increase, we all need as much help as we can get.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: corporate surveillance, non-profits, public interest, surveillance

WIPO's Development Agenda At The Crossroads: Does IP Or Development Take Priority?

from the crunch-time dept

One reason why agreements like ACTA, TPP, TAFTA/TTIP and TISA have proliferated in recent years is that the US, EU and allies are losing their tight grip on international bodies like the WTO. That means they are unable to use traditional fora to draw up trade agreements that largely serve their interests. Instead, they have started forming ad hoc invitation-only groups that can negotiate in secret, without needing to accommodate the views of emerging economies that are starting to assert themselves.

That tussle between the old and the new power blocs has now spread to WIPO, as Intellectual Property Watch's report on a recent meeting of the WIPO Committee on Development and Intellectual Property reveals:

At the heart of the power struggle is the Development Agenda of the organisation. Adopted in 2007, it aimed at instilling a development dimension in all WIPO activities. However, the interpretation of this development dimension and how it should be implemented is regularly an object of friction.

Last night, after a tense week, final statements sounded warning signs of a deep political divide on the orientation of the organisation, which developed countries underlined was financed by users of the global IP system, and whose main goal is the promotion of the protection of intellectual property, and developing countries recalled is a United Nations agency with development at its core.

There are two world-views colliding here. The first, held by the US and the EU for example, is that WIPO's central task is to spread and strengthen intellectual monopolies around the world, since these, they assert, are inherently desirable. The second, espoused by emerging economies, is that such monopolies are not an end in themselves, but tools for enhancing economies and the well-being of the public. That implies monopolies that cause harm -- for example, pharma patents that lead to unaffordable drugs for the vast majority of the world's population -- should be reined in, rather than encouraged. Naturally, that does not sit well with nations like the US and EU whose priority is how much money patent and copyright monopolies can generate for the companies that own them.

The shifting mood among some at WIPO is clear from this statement made by South Africa during the meeting:

Although regretting the absence of agreement over the week, "what we cannot run away from is the fact that there are some delegations who hold the view that the organisation can go back to pre-2007," he said. "This is something my delegation will fight to the end for!"

"We understand the WIPO Convention," he said, "but this organisation is not a company and we are not part of a board of directors who need to answer to someone. We answer to the public," he said. The people of South Africa are "the only people that we answer to, irrespective of who funds the organisation or where the funding comes from."

South Africa may be in the vanguard in expressing so forcefully its views on the need for a new kind of WIPO, but it is not alone. That means we can expect yet more private agreements among the old guard who increasingly find that they are unable to have their way at traditional organizations like WIPO.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: development, development agenda, intellectual property, public interest, trade agreements, wipo

The End Of Maximalist Copyright?

from the shifting-tides dept

As I noted in my first post, copyright policymaking is driven mainly by politics, self-interest and deep-seated notions of morality at the expense of actual empirical evidence. Overall, this has led to some pretty indefensible policy outcomes, such as the continued extension of copyright terms. And when one considers the Obama administration's continued pursuit of ever-stronger copyright laws, in the United States and around the world, backed by some pretty powerful industries, it's easy to conclude that the centuries-long trend of copyright's expansion is likely to continue indefinitely.

I disagree. Ironically, the purely political nature of so much of copyright policymaking makes it vulnerable to potentially dramatic change. What has been politically made can be politically unmade. And perhaps sooner than we think.

The current US maximalist position on copyright and intellectual property was politically constructed through some savvy lobbying in the 1970s and 1980s by the copyright and IP industries, as documented by scholars such as Susan Sell, and Peter Drahos and John Braithwaite. Since then, US copyright policymaking has been subject to a classic case of regulatory capture, with tight linkages, for example, between the Office of the United States Trade Representative and the content industries.

That said, it's worth remembering that the explosion of (politically relevant) public and corporate interest in user rights and the like is a very recent phenomenon. There have always been groups interested in pursuing copyright balance, but it's only recently that the heavy hitters – Internet companies like Google, and the public at large – have begun to make themselves heard.

Remember the 1990s, when Silicon Valley made a virtue of not being interested in Washington's political games? As recently as 2008, when I was in DC to interview people for this book, I couldn't even find Google's Washington lobbyist. In 2003, Google ranked 213th in terms of spending on lobbying, according to the Washington Post. In 2012, it was in second place.

You can't win if you don't play. Public Knowledge has become one of the most prominent voices in favor of user rights in Washington; their first submission to the Special 301 process was only in 2010, as far as I can tell. And, of course, the 2012 SOPA protests proved that millions of Americans can be mobilized on digital-copyright issues.

This is just a thumbnail sketch, but what it suggests is that it's been less than a decade since the copyright debate got real. And while regulatory capture is a real thing, it will be difficult for any US governmental agency to ignore the potent combination of new players with cash and votes. Anyone with money and influence can play the regulatory-capture game.

I'm not arguing that a user-rights, content-is-free utopia is right around the corner. For one thing, the interests of a for-profit business like Google are very different from those of the average citizen. As a business, Google has proven to be more than willing to make private deals with copyright owners to limit user rights. Businesses, after all, crave stability over everything.

However, the interests of Google (to take only the most prominent of the digital-economy companies) on copyright are sufficiently different from those of the copyright industries currently driving Washington policy that it's reasonable to expect that the current US copyright position is not politically sustainable in the long run. And if digital copyright remains a mainstream political issue, then the prospects of significant long-term reform – in the United States and abroad – are even greater.

Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.

Filed Under: copyright, lobbying, maximalism, public interest

USTR Thinks A Non-Transparent 'Public Interest' Committee Will Mollify Critics; It Won't

from the not-going-to-cut-it dept

We've been pointing out for years how the US Trade Representative is creating all sorts of problems for itself by its insistence on secretly negotiating trade agreements, in which only industry insiders and lobbyists are a part of the process and have access to the documents. The USTR has ridiculously tried to argue that it's transparent because it will meet with anyone who asks, never acknowledging that hearing from people is quite different from sharing what the USTR is actually negotiating in our name. As we've said before, if the only way the American public can find out about what the USTR is negotiating in our name is because Wikileaks has released the documents, then the USTR is not being transparent. A few weeks ago, we noted some signs that the USTR was beginning to panic, as it realized that its bogus claims about transparency weren't sitting well with Congress, and its hope to tie Congress's hands via "fast track" or "trade promotion authority" is on life support.

For the first time, the USTR has kinda sorta admitted that its current process of only sharing the negotiating documents with industry lobbyists -- something that even the strongly pro-business Bloomberg referred to as a "corporatist power grab" -- isn't necessarily in the public interest. In a speech, USTR Michael Froman announced the creation of a new "Public Interest Trade Advisory Committee" (PITAC):

I’m pleased to announce that we are upgrading our advisory system to provide a new forum for experts on issues like public health, development and consumer safety.

“A new Public Interest Trade Advisory Committee (PITAC) will join the Labor Advisory Committee and the Trade and Environment Policy Advisory Committees to provide a cross-cutting platform for input in the negotiations.

“We are calling on NGOs, academics, and other public interest groups to submit their candidates to be founding members of the PITAC.

Of course, just the fact that they think they need a "public interest" advisory committee begs the question: are they admitting that until now, they just didn't give a shit about the public interest? Aren't they effectively saying that all of those other advisory committees they have, made up of big industry lobbyists, have been pushing them to screw over the public interest, in favor of short term protectionism and profits?

You'd think that the entire point of what the USTR does is that it should be negotiating agreements in the public interest, and yet as far as I can tell, they've now admitted that was never the case before, and now they seem to think that rather than being an overreaching aim of all trade agreements, that it's one of multiple "competing interests." In fact, this new proposal is actually exactly what the corporate lobbyists themselves had pushed for a few years ago, when the USTR started considering adding non-corporate representatives to the other advisory committees. The lobbyists balked at that suggestion, saying that, if anything, a separate second-tier public interest committee should be created. And that's what's now happened, with Froman pretending that this is some sort of huge move to benefit the public interest.

But, more to the point, this seems much more like a way to try to mollify critics by attempting to bring some of the most vocal critics of the lack of transparency "into the fold" (which will include strict confidentiality agreements), hoping that this shuts them up.

It takes an astounding amount of cluelessness to think that the proper response to a lack of transparency is to create another committee with secret access to the negotiating text.

While Froman also insists that he will be taking "new steps to broaden public information on the progress of negotiations," including "an update on the status of negotiations," that's not the transparency people are asking for. They're not asking for status reports. They're asking for transparency on what the USTR is negotiating in our name (though, as now admitted, without any concern for "the public interest").

Other parts of Froman's speech were equally problematic. In it, he quotes the ridiculous statistic that "Intellectual property-intensive industries account for nearly 30 million American jobs" -- ignoring, of course, that this number has been totally debunked multiple times over. The study this is based on lumped all sorts of jobs that have nothing whatsoever to do with intellectual property protections into the category of "intellectual property-intensive industries," such that the leading such employer is grocery store employees. And, sorry, but the kid putting your canned veggies into a bag doesn't have his job because of intellectual property law.

He also pretends that the USTR is supporting the exporting of fair use with the following statement:

... for the first time in any trade agreement, we are asking our trading partners to secure robust balance in their copyright systems – an unprecedented move that draws directly on U.S. copyright exceptions and limitations, including fair use for important purposes such as scholarship, criticism, news commentary, teaching, and research.

That's misleading, at best. While it's true that this is the first time the USTR has included any such provisions in a trade agreement, the actual language shows that it's more about limiting fair use than expanding it.

He also tries to dismiss the concerns that TPP is somehow "related to SOPA." He's right. It's not SOPA, but this statement is again misleading in the extreme:

The United States will agree to nothing in TPP that goes beyond existing U.S. intellectual property law.

Except... that Congress is currently debating major copyright and patent reform -- and while the leaked proposals are mostly (though not entirely) consistent with US law, they would effectively lock in aspects of current law that many have suggested should be changed. That is, while it may not change that much today, it clearly would serve to block Congress from fixing the massive problems in today's copyright and patent law. And the USTR doesn't seem to even understand this -- in part because the folks that it spends the most time discussing intellectual property with -- the intellectual property trade advisory committee (ITAC 15) are pretty much all copyright/patent maximalists.

The speech is more of the same from the USTR. It makes a bunch of false and misleading statements, either out of ignorance or with the intention of directly misleading the public. The inclusion of this new "public interest" committee is a cheap ploy to try to buy off some critics with increased access, but does nothing to address the fundamental problems with the process and the agreement.

Filed Under: pitac, public interest, trade agreement, transparency, ustr

FISA Court Judges Say They Don't Want Any Changes To How The Rubber Stamp Court Is Run

from the leave-fisc-alone! dept

Oh, those poor, poor FISA Court (FISC) judges. The court, which has a habit of approving every single request to spy on Americans (though, sometimes asking for minor modifications) has already complained about how unfair it is that everyone thinks they're just a rubber stamp. And, to be fair, some of the documents that have been revealed have shown that there are a few times that the FISA Court has become quite angry about how the NSA and DOJ have basically lied. And, it's even ordered certain programs be (temporarily) stopped or changed. But, in the long run, it's still pretty much allowed the NSA to keep on keeping on. And, the FISC judges have admitted that they're not particularly able to do real oversight, since they're entirely reliant on what the NSA tells them. There's also the fact that all of the FISC judges are appointed by Supreme Court Chief Justice John Roberts, leading to a very specific political leaning in all of them.

And, now, it appears, that the FISC judges are speaking out against any actual reforms or changes to the FISC, because (and I'm not making this up), it might mean they have a bit more work to do. Judge John Bates has sent a letter to Senator Dianne Feinstein basically saying that they'd prefer not to do any more work, and making some crazy claims about how the reforms might "disrupt" the ability of the court to protect national security.

Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts' ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected.

Yes, did you get that? Any attempt to better protect the privacy interests of the public -- which is what these reforms are designed to do -- might actually hinder the FISC's ability to protect the privacy interests of the public. Talk about doublespeak. First, there's no evidence that the FISC ever actually protected the privacy interests of the public, and the idea that reforms to protect the privacy interests of the public would somehow undermine the FISC's ability to protect those privacy interests is laughable.

What about the idea of an advocate for the public in certain cases -- someone to make sure that hearings are actually conducted on an adversarial basis? Oh boy, does the FISC hate that idea too:

The participation of a privacy advocate is unnecessary-and could prove counterproductive--in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the--mill FISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them.

Got that? Having an advocate for the public's interest might mean that the court can't dig and get as much info as possible, thereby... um... harming the privacy interests of the public. Really?

Oh, and if there must be an "advocate" for the public, he or she should apparently be really designed to help the judges rather than an independent voice for the public interest:

In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive.

Okay, how about requiring the FISC to actually review national security letters (NSLs), instead of just allowing the FBI and others to issue them willy-nilly with no oversight, despite long standing evidence of massive abuses on an astounding scale? Again, too much work:

Drastically expanding the FISC's caseload by assigning to it in excess of 20,000 administrative subpoena-type cases NSLS) per year -- even with a corresponding injection of resources and personnel -- would fundamentally transform the nature of the FISC to the detriment of its current responsibilities.

The plan to change how the judges are appointed, so that it's no longer a court shaped in the vision of Justice John Roberts exclusively? No dice, says Judge Bates.

It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.

He doesn't explain why any of that makes sense. There's no reason why FISC judges can't be approved in a more diverse manner. Yes, the Senate has certainly made judicial nomination approvals a political football lately, but appointing already approved judges to FISC can certainly be done by Congress rather than by a single guy appointed to a lifetime position.

What about more transparency on when the FISC rules on things? Oh no, says Judge Bates, actually telling the public about what the FISC rules might confuse those stupid idiotic people who make up the public:

In many cases, public disclosure of Court decisions is not likely to enhance the public's understanding of FISA implementation if the discussion of classified information within those opinions is withheld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding.

There you have it: let's keep important court rulings secret, because the public are morons. Brought to you by the former chief judge of FISC.

Given that the FISC has taken a lot of the attacks for its weak to non-existent oversight of the NSA, it's no surprise that they're a little touchy about all of this, including the idea that some reforms might suggest that they really did an incredibly crappy job for the past decade or more. But the reasoning given in this letter amounts to little more than (1) we don't want to do any more work, even if you let us hire a lot more people and (2) the public is stupid and annoying, please keep us shielded from them.

Filed Under: dianne feinstein, fisa court, fisc, john bates, nsa, privacy, public interest, surveillance

TPP Negotiators Completely Ignored Public Interest Groups At Last Negotiations

from the they-don't-care dept

We've noted in the past how little the USTR and other country negotiators wanted to hear from various "civil society" or public interest groups during the various negotiating rounds. However, at least they made some attempt to set up "stakeholder engagement" periods, in which concerned organizations could present their arguments. However, it appears that all that went completely out the window at the last negotiations in Singapore. According to a report from Deborah Gleeson, who was there, this time around, those groups were basically shunned entirely:

While civil society stakeholders have always had a rather marginal role in the negotiations, at most previous rounds there have been opportunities for academics and NGO representatives to participate formally in the process.

But the meeting in Singapore had a very different feel. This time stakeholders had no role as participants and no avenues for interacting with negotiators except through personal contacts.

It was clear that ministers were getting down to business. And it was even more difficult than usual to get any information about what was happening.

Basically, the negotiators confirmed what many people knew was going on all along. Negotiators have never shown any actual interest in taking the concerns of these groups seriously. The meetings have always been for show, and now that it's time to "get down to business" apparently those groups can be ignored entirely.

Filed Under: civil society, negotiations, public interest, tpp, ustr

US TPP Negotiators Accused Of Bullying; Refusing To Budge On Ridiculous IP And Corporate Sovereignty Demands

from the i'm-sorry-for-my-country's-insane-negotiators dept

This is hardly a surprise, but more reports are coming out revealing that the US's ongoing strategy in negotiating the TPP (Trans Pacific Partnership) agreement is to not take into account the many, many concerns about the US's hardline, maximalist position on both intellectual property issues and efforts to give corporations sovereignty over national laws under the misleadingly named (and purposely boring) "investor state dispute settlements" (ISDS). You would think that with widespread dissection and concerns expressed about the leaked intellectual property chapter, that the USTR might possibly ease up on its crazy maximalist demands. Not so -- but that's to be expected when you have Stan McCoy as the lead negotiator on intellectual property issues. McCoy is a famed extreme maximalist on IP issues who has more or less admitted to having no interest at all in hearing from public interest groups, while lapping up any opportunity to parrot bogus claims from the industry. McCoy was the same guy behind the embarassing disaster known as ACTA, which flopped so miserably. You'd think he'd take a hint, but instead it appears he's decided to dig in his heels and make sure the US continues to live up to its reputation as an obnoxious bully.

Multiple reports have called out the US (and McCoy in particular) for its aggression and "bullying" in the negotiations. Others have accused the US of engaging in a "negotiation by exhaustion," in which US negotiators seem to figure if they just stand their ground forever, everyone will eventually be bullied into agreeing to the US's positions.

‘The US has adopted a strategy of exhaustion in its bullying of negotiators on the crucial intellectual property chapter to force countries to trade away health in the Trans-Pacific Partnership Agreement negotiations in Salt Lake City’, according to Professor Jane Kelsey from the University of Auckland, New Zealand, who is monitoring the negotiations.

‘The US has stepped up its aggression as they move towards their "end point" of the TPPA ministerial meeting in Singapore from 7 to 10 December’, said Professor Kelsey.

[....] ‘This is a loaded game’, Professor Kelsey said. ‘McCoy sets the agenda and timetable. Negotiators are working from morning until late at night and preparing to work all night, if necessary.’

The second link above, from a publication in Australia, notes something similar and complains about the Australian government's seeming willingness to side with the US on these issues:

The United States has been accused of negotiation by exhaustion in last-minute talks in Salt Lake City ahead of the final ministers' meeting that will decide the makeup of the Trans Pacific trade deal between Australia and eleven other nations.

Information leaking from the closed official-level talks suggests the United States is giving no ground on questions of intellectual property and medicines and is insisting each nation sign up to so-called Investor State Dispute Settlement provisions that would allow global corporations to sue sovereign governments.

[....] “What is happening is not a negotiation,” said Patricia Ranald, Convenor of the Australian Fair Trade Network. “The United States is dictating the terms and it seems the Australian Government is not prepared to join other governments which are resisting these demands

While Stan McCoy plays out his own last stand game, pushing for policies that may help a few of his friends in the industry at the expense of the public, hopefully that last point -- about other governments resisting McCoy's attempt to bully them into a really bad deal -- stays true. An analysis of the positions on the IP Chapter, done by Gabriel Michael, highlighted how the US's position is a lot more isolated than it might like. That may explain the bullying behavior. It looks like the USTR is getting desperate, realizing its usual tricks and games aren't fooling most of the other negotiators. As Michael's analysis showed, the US and Japan (two of the strongest supporters of maximalism) appear to be fairly isolated -- issuing a lot more proposals that no one else supports.

Of course, the USTR is somewhat famous for its ability to start horse trading, promising bogus sweetheart deals if people just agree to awful language that will do massive harm to the public, so it's still something to be quite nervous about until any final text is revealed. Of course, just the fact that the USTR has still refused to reveal the text itself should be reason enough to recognize that this deal is a joke designed to screw over the public. Those acting in the interest of the public don't hide their efforts from the public.

Filed Under: bullies, copyright, corporate sovereignty, intellectual property, isds, negotiations, public interest, stan mccoy, tpp, ustr

Do You Trust The Government Or Journalists More To Determine If Snowden's Docs Are Safe To Publish?

from the or-someone-else? dept

Nick Davies at The Guardian has an interesting article challenging those (including some competing UK newspapers) who have been arguing that it's somehow inappropriate for journalists to make the decision about whether or not Snowden's leaked documents can be revealed without revealing sensitive information that puts lives in danger. We've seen similar claims elsewhere, including in our comments, where some insist that it's preposterous to think that anyone other than the intelligence community can know for certain whether or not the documents are sensitive. Davies, however, makes the strong case that the government has a long and sordid history of hiding behind these kinds of claims to disguise highly questionable activity -- and, instead, it's the power of the press that is necessary to keep them honest.

The official answer is that we should trust the security agencies themselves. Over the past 35 years, I've worked with a clutch of whistleblowers from those agencies, and they've all shared one underlying theme – that behind the screen of official secrecy, they had seen rules being bent and/or broken in a way which precisely suggested that the agencies should not be trusted. Cathy Massiter and Robin Robison, for example, described respectively MI5 and GCHQ pursuing politically motivated projects to spy on peace activists and trade unionists. Peter Wright told of MI5 illegally burgling its way across London "while pompous bowler-hatted civil servants in Whitehall pretended to look the other way". David Shayler exposed a plot both lawless and reckless by MI5 and MI6 to recruit al-Qaida supporters to assassinate Colonel Gaddafi.

All of this was known to their bosses. None of it should have been happening. But the agencies in whom we are invited to place our trust not only concealed it but without exception then attacked the whistleblowers who revealed it.

Davies also destroys the idea that politicians in charge of "oversight" can do an effective job:

Would we do better to trust the politicians who have oversight of the agencies? It's instructive to look back from our vantage point, post-Snowden, to consider what was happening only two years ago when the government attempted to introduce new legislation which came to be known as the snooper's charter. If the oversight politicians are as well-informed as they claim, they must have known that this was in part a cynical attempt to create retrospective legal cover for surveillance tools that were already secretly being used, but they said nothing. And when parliament refused to pass that law, clearly indicating that there was no democratic mandate for those tools, they still stayed silent.

Politicians fall easy victim to a political Stockholm syndrome which sees them abandon their role as representatives of the people in favour of becoming spokesmen for the spooks. It was there in the 1970s when the New Statesman bravely exposed security lapses and financial corruption in GCHQ, only to face a prosecution orchestrated by a Labour attorney general; there again with Jack Straw describing in his autobiography how MI5 had spied on him and his family since he was 15 but declaring that he was "neither surprised nor shocked – this was the world we lived in"; and there again, of course, in the foreign secretary William Hague's bland presumption that "if you have nothing to hide, you have nothing to fear" from the systems of mass surveillance exposed by Snowden.

These are all UK examples, of course. But we've seen the identical situation in the US as well. The over-classification problem in our government is well-documented and no one seems to want to fix it. Furthermore, stories of intelligence community abuses of power are well-known throughout US history. As for political oversight, the litany of stories we've had concerning Rep. Mike Rogers tells a different story altogether. He's supposedly in charge of oversight, but comes from an intelligence background and has shown, repeatedly that his focus is not on oversight, but on running cover to prevent real oversight of the intelligence community's actions.

Journalists may not be perfect, but they certainly have a much better track record than either governments or politicians in making these kinds of determinations.

Filed Under: journalism, national security, nsa, nsa surveillance, oversight, public interest