Yes, Getting The US Government Out Of 'Managing' Internet Domain Governance Is A Good Thing

from the moving-on dept

A little over two years ago, when the Commerce Department officially announced plans to "relinquish control" over ICANN's IANA (Internet Assigned Numbers Authority) we tried to explain why people should stop freaking out. There were a bunch of people up in arms, claiming that the US government was "giving away the internet." That was, and still is, complete hogwash. There are two important things to understand in this. First, the Commerce Department's "oversight" over ICANN and IANA is already basically non-existent. It was always more on paper than in reality, as the Commerce Department, rightly, took a totally hands off approach. Second, there has been a big effort by foreign governments, mainly Russia and China, to take control over the internet, and strip it from ICANN, and putting it in the ITU, a confusing mess of an organization that's a part of the UN, but heavily controlled by governments without input from actual technologists or public interest groups.

A key part of the Commerce Department's "transition" plan was that it would basically erase the almost entirely imaginary link between IANA and the Commerce Department, but only if a plan was created that kept IANA independent and not as a part of the UN or any organization that would lead to mostly government control, as opposed to what everyone (unfortunately) likes to call a "multistakeholder process" (which just means not just government in the room). And with that plan in place, the Commerce Department's National Telecommunications & Information Administration (NTIA) has now come out in support of this plan.

The U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced today that the proposal developed by the global Internet multistakeholder community meets the criteria NTIA outlined in March 2014 when it stated its intent to transition the U.S. Government’s stewardship role for the Internet domain name system (DNS) technical functions, known as the Internet Assigned Numbers Authority (IANA) functions.

The announcement marks an important milestone in the U.S. Government’s effort to complete the transition of the Internet’s domain name system and ensure that the Internet remains a platform for innovation, economic growth, and free speech.

For the last 18 years, the United States has worked with businesses, technical experts, governments, and civil society groups to establish a multistakeholder, private-sector led system for the global coordination of the DNS. To accomplish this goal, in 1998, NTIA partnered with the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based nonprofit, to transition technical DNS coordination and management functions to the private sector. In 2014, NTIA initiated the final step in the privatization process by asking ICANN to convene global stakeholders to develop a plan to complete the transition away from NTIA’s remaining legacy role.

Now, you would think that "small government" types would be happy about the US government completing its "privatization" of internet governance. But, that's because many "small government" types are only small government types when it suits them. Senate Ted Cruz and Rep. Sean Duffy have rushed out a bill, called the "Protecting Internet Freedom Act" that would block the Commerce Department from completing the privatization of the internet. This is both silly and counterproductive.

The Commerce Department's flimsy and never really used "control" over NTIA is basically meaningless yet it's frequently used by foreign governments and the ITU/UN as a reason for taking complete control over the IANA process. And that's only ramped up in recent years due to concerns about the NSA and surveillance. In other words, the US having any official control over internet governance is actually helping authoritarian governments by making the argument that US "control" over the internet is only helping the NSA. By separating IANA from the US government, but keeping the overall process as one that is not controlled by any government, you actually have a better chance of keeping the internet functioning in an open manner. Leaving it under the US government control, no matter how flimsy that link really is, only gives foreign governments useful fodder for a more complete move to take over control themselves.

Eli Dourado, who has spent a ton of time digging into and being involved in internet governance issues, has a great and detailed post about why this transition is a good thing and should be supported. It has all of the relevant history here (including my favorite point about how prior to ICANN, the IANA functions were controlled one dude, Jon Postel, who more or less declared himself the czar over how the domain name system was managed). But he also gets directly to the point: Congress forcing the US government to keep this "control" over IANA would do much more harm than good:

In truth, authoritarian regimes would love nothing more than to see the IANA transition fail. It would give them another shot at taking the issue to the ITU, this time with the added ammunition of pointing out that the United States does not keep its word regarding Internet governance. Oddly, this places Cruz and Duffy on the same side as Russia and China, against the world’s democracies, the Obama administration, sober Republicans, virtually every US tech company, the Internet Society, and virtually every freedom-loving intellectual or activist I have met who has participated on a US delegation to the ITU.

Separately, he also points out that for all the hype over this, the IANA function is actually not nearly as important as some make it out to be. The US government losing whatever sense of "control" it had over it is unlikely to have a huge impact on the internet itself. So the "costs" to this transition are basically nil. The cost to keeping the paper control in place, however, may be very large, in that it provides tremendous ammunition to foreign authoritarian regimes to push for much more extreme changes to internet governance that would be much, much worse.

Filed Under: commerce department, iana, icann, internet governance, itu, ntia, privatization, sean duffy, ted cruz, transition, un, wcit
Companies: icann

'There Is No Human Right To Patent Protection' -- UN Special Rapporteur

from the fighting-talk dept

Back in March, Tim Cushing wrote about a rather remarkable report from the UN Special Rapporteur in the field of cultural rights, Farida Shaheed, in which she warned that copyright might run counter to human rights. As if that weren't enough, Shaheed is back with another bold attack, this time on patents. As the summary to her report puts it:

There is no human right to patent protection. The right to protection of moral and material interests cannot be used to defend patent laws that inadequately respect the right to participate in cultural life, to enjoy the benefits of scientific progress and its applications, to scientific freedoms and the right to food and health and the rights of indigenous peoples and local communities.

Patents, when properly structured, may expand the options and well-being of all people by making new possibilities available. Yet, they also give patent-holders the power to deny access to others, thereby limiting or denying the public’s right of participation to science and culture. The human rights perspective demands that patents do not extend so far as to interfere with individuals' dignity and well-being. Where patent rights and human rights are in conflict, human rights must prevail.

The report touches on many issues previously discussed here on Techdirt. For example, how pharmaceutical patents limit access to medicines by those unable to afford the high prices monopolies allow -- a particularly hot topic in the light of TPP's rules on data exclusivity for biologics. The impact of patents on seed independence is considered, and there is a warning about corporate sovereignty chapters in trade agreements, and the chilling effects they can have on the regulatory function of states and their ability to legislate in the public interest -- for example, with patent laws. Shaheed concludes by noting:

Patents are one policy tool among many for encouraging innovation and technological research and development. More caution is required in assessing their positive versus negative effects depending on the context and the technologies at stake.

She then goes on to suggest a number of broad ways in which the current approaches can be improved. First, through "ensuring transparency and public participation in law-making." Concretely, that means:

International intellectual property instruments, including trade agreements, should be negotiated in a transparent way, permitting public engagement and commentary.

National patent laws and policies should be adopted and reviewed in forums that promote broad engagement, with input from innovators and the public at large.

Companies benefitting from patents in the pharmaceutical sector should disclose information about the costs for developing drugs, the items included in such costs and the sums they reinvest in research and development.

She calls for patent laws, policies and practices to be compatible with human rights, and subject to formal human rights assessments. She emphasizes the importance of exclusions, exceptions and flexibilities in patent laws, and cautions against obliging nations to "support, adopt or accept" patent rules that go beyond the basic requirements of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Shaheed wants governments to adopt policies that foster the right to science and culture, rather than pushing longer and broader patent laws that risk closing off both. Finally, she calls for measures to take account of the special needs of indigenous peoples and local communities -- an area that is becoming an increasing contentious one as those groups start to assert their rights against corporations that often use patents to appropriate traditional knowledge, sometimes even excluding the very people they have learned it from.

Although most of the issues and solutions raised by Shaheed will be familiar to Techdirt readers, the report is a good summary of them, and usefully places them in an over-arching human rights framework. Above all, Shaheed's work here on patents, and earlier UN report on copyrights, are important as a clear sign of how the conventional maximalist wisdom that the more intellectual monopolies we have, the better, is now being challenged ever-more widely and powerfully.

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Filed Under: farida shaheed, human rights, patents, un

UN Broadband Commission Releases Questionable Report On 'Cyber Violence' Against Women

from the wherein-the-problem's-solutions-are-problems-themselves dept

The UN's Broadband Commission has just released a report on "Cyber Violence Against Women and Girls." That this has been put together by the Broadband Commission rather than something more directly related to either law enforcement or human rights should be the first warning flag. This indicates the UN feels the responsibility for "cyber violence" should be borne by ISPs and social media platforms, rather than those actually committing the acts detailed in the report.

Ken White at Popehat has written a long and thoughtful piece on the report that's well worth reading, even with his admission that he may cut the authors of the document too much slack. White discusses what's wrong with the Commission's aims, using the presupposition that its assertions about "cyber violence" towards women are true. Even granting the Commission this generous benefit of a doubt, there's still a lot that's worrying about the Commission's proposals and assumptions.

Perhaps the biggest concern is that the UN is behind it. While the concept of the United Nations is noble, the execution has been an ongoing disaster. The governing body has been far too willing to humor the whims and predilections of countries whose track records on speech and human rights are generally abysmal. This is the unavoidable outcome of "uniting" disparate nations. Because there's no way to please everyone, the UN has settled for a grade school-esque "everybody gets a turn" fairness. That leads directly to this sort of thing:

I don't trust the UN on free speech issues. You shouldn't either. In a world where Iran wins a seat on the UN's Commission on the Status of Women, people who care about women's rights should also be skeptical. Pro-censorship forces continually pressure the UN for international laws and norms restricting speech — for instance by demanding laws outlawing blasphemy. Allow me some unabashed American exceptionalism: that's a bad thing. The United States' vigorous approach to protecting free speech and rejecting blasphemy laws is good, and foreign norms that encourage blasphemy laws often used to persecute religious and ethnic minorities are bad.

No one should want the UN to take up this battle. Those looking to see free speech respected won't find much to like about the UN's involvement. Countries where actual violence is routinely perpetrated against women, along with cultural oppression, won't be talked into a national change of heart just because the UN has decided to shelter women from online violence. ISPs aren't going to be receptive to additional directives that require them to more heavily police their users, especially when the targeted content isn't as easy to recognize and curtail as the report makes it appear.

The Commission's report also ignores the obvious in its desire to right the internet's wrongs: laws are already in place to deal with much of the "cyber violence" the commission aims to prevent. The report lists six areas where women are subjected to "cyber violence," almost all of which are already addressed by criminal and civil statutes.

Hacking
Impersonation
Surveillance/Tracking (i.e., stalking)
Harassment/Spamming
Recruitment (sex trafficking)
Malicious Distribution (defamation, revenge porn, etc.)

This isn't to say that legal systems already in place are handling the digital version of these criminal and civil violations perfectly. They aren't. We only need to look at sexting prosecutions to get a general idea of how badly this goes when laws written to serve a different purpose are stretched to address unforeseen modes of behavior.

But the solution isn't the construction of an entirely new legal framework, especially not one built on the assumption that "cyber violence" is equivalent to physical violence. We've similarly seen the disastrous results of laws written solely to address new issues like cyberbullying and revenge porn. The former tends to replace actual harm and malicious intent with highly-subjective measurements. The latter tends to criminalize acts that aren't revenge porn, thanks to sloppy wording and legislative grandstanding.

There may be some measured steps that could be taken to mitigate the problems the Commission is targeting, but the wording contained in the report strongly suggests a measured approach isn't what the Commission has in mind.

[R]hetorically, the report advocates a "zero tolerance for violence against women" mantra. I understand and share the anti-violence sentiment, but experience teaches that framing a response to a problem as "zero tolerance" leads to terrible results. That's not a problem with "women's issues," it's a problem with any perceived social ill. Telling people to take a "zero tolerance" approach effectively tells them to suspend critical judgment when addressing a problem. It doesn't lead to treating a problem seriously; it leads to treating a problem anxiously. When applied to something as complicated as the internet, that's potentially disastrous.

The report suggests "partnerships" between private industry and governing bodies, something that never works out well. The Commission hesitates to advocate government censorship, but does so disingenuously by suggesting that "voluntary" measures enacted under pressure from multiple governments are actually still voluntary. And it completely ignores the fact that any such systems put into place will be gamed immediately by the people they're meant to target, along with any number of trolls that game systems simply to game systems.

It also attempts to shoehorn in the unproven claim that video game violence leads to actual violence and does so citing perhaps the worst "source" available -- an article that leads off by quoting Lyndon Larouche uncritically.

It is the “New Violence,” as Democratic Presidential pre-candidate Lyndon LaRouche was the first to precisely characterize it at the time. It is the use of Nintendo-style games, and related means, to transform young children and adolescents, as well as law-enforcement personnel into “Samurai”-style programmed killers.

That's not the quote that makes it into the report. What it does quote is almost innocuous compared to the content surrounding it.

There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.

To call this alarmist screed "research" is beyond laughable. Even if you can somehow accept the assertion that violent video games are crafting a generation of "killing zombies," you're left with with the author's other assertions, which veer off into inadvertent satire.

Nintendo of America, Inc.: Manufactures Pokémon, Game-Boys, and equipment for satanic video games.

[...]

Hasbro Interactive: Official U.S. distributor of Pokémon (abbreviation for “Pocket Monsters”), the killing game designed for toddlers beginning at 2 and 3 years old; Dungeons and Dragons, the medieval satanic and magic fantasy game; Risk II, a “ruthless quest for world domination".

The report also quotes a report on harassment of Indian women via WhatsApp (with cited URL actually being a file path on some UN's employees C: drive). The report itself notes that the study was severely limited and that "no sweeping generalizations should be made." The Broadband Commission apparently failed to read that part of the report.

The use of WhatsApp instant messaging, for example, has become, according to some reports, the latest harassment tool of choice in countries like India and Malaysia, and increasingly around the world.

Diving into every citation would likely uncover more problems in the assumptions drawn by the Broadband Council. (For instance, the Pew report quoted in the paper conveniently ignores the research center's finding that men experience online harassment more often than women, although they are less likely to be sexually harassed or stalked.) Even if the sources were impeccable, the Commission's ultimate goals would still be questionable.

A governing body that grants far too much deference to countries that abuse their own population thinks it can clean up the internet. There are few direct attacks on free speech in the report, but that's probably more due to the UN's restricted definition of free speech ("Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose…") than the Commission's concerns about undue limits on expression.

Even if you firmly agree with the report's assertion that "cyber violence" disproportionately affects women and that new measures need to be put in place to rein this in, you can't -- in good conscience -- applaud the UN's involvement. This is a governing body that routinely turns a blind eye to physical violence targeting women and allows countries with atrocious human rights records to guide policy decisions. This sort of issue cannot be solved with blanket directives issued by a governing body that is routinely ignored by its member states and whose deference to even the worst "stakeholders" continually undercuts the ideals it claims to promote.

UPDATE: Ken White has written a follow-up piece stating that he was wrong to cut the UN Broadband Commission's report as much slack as he did the first time around.

First off, he points out how dangerous this could be, considering it's the Broadband Commission that's behind this report. As he notes, there are several authoritarian regimes fighting for more control of the internet -- which of course means more control of their citizens. A set of internet rules handed down by the UN will be leveraged against their weakest citizens and misused to shut down dissent, no matter how noble the original goal.

He also points out that the quote pulled from the Lyndon Larouche-touting anti-videogame screed almost singlehandedly undercuts the credibility of the entire report. It's just that bad.

This is the equivalent of submitting a serious proposal to Congress advocating for changes in the federal budget and, for the proposition that the NASA budget should be reduced, linking to sites that claim that the moon landing was faked.

Some may point out it's a single citation, from which only a few words were pulled. But this seems to indicate there are other media forms the UN would like to control.

One bad citation wouldn't normally destroy the credibility of an entire report. If any one can, this one does. It's used to support a drop-in that violent movies and video games are something the UN might want to look at. It is so freakishly inappropriate that I can only imagine four scenarios: (1) there are no sensible people involved in the preparation and approval of the report, (2) any sensible people involved with the report did not read the report any more carefully than I did, (3) the people behind the report believe this Jack Thompson/Tipper Gore/Jack Chick malarkey, or (4) the people behind the report don't particularly care about the reliability of the sources for their pronouncements.

White also spends more time discussing the Commission's problematic definition of "cyber violence," which seems to be about evenly split between things that aren't actual violence and things that are already criminal acts in most countries. This is where the report is the most dangerous. It's attempting to leverage vague wording and foregone conclusions to grant the UN increased speech-policing powers -- an idea no one should be in a hurry to support.

Filed Under: broadband, cyberviolence, free speech, harassment, un, vawg

Hacking Team Hacked: Documents Show Company Sold Exploits And Spyware To UN-Blacklisted Governments

from the I-would-imagine-there-are-plenty-of-new-openings-on-its-appointment-calendar dept

Hacking Team -- purveyor of exploits and spyware to a variety of government agencies all over the world -- has been hacked. Late Sunday night, its Twitter account name was changed to "Hacked Team" and its bio to read:

Developing ineffective, easy-to-pwn offensive technology to compromise the operations of the worldwide law enforcement and intelligence communities.

Whoever's behind this (no group has claimed responsibility yet) has repurposed the official Hacking Team Twitter feed to send out screenshots of incriminating information it/they have uncovered. For those who want to take a look themselves, the liberated documents can be torrented. Here are two places the torrent file can be picked up. (CAUTION: Actual file is 400 GB, so use a robust client and check your drive[s] for free space…) [And, if those go down, I've also stashed the torrent file here.]

What has been exposed so far shows Hacking Team has been lying about its business partners. It claims to only sell to NATO partners and blacklists oppressive governments. But its "Customer" Wiki appears to show that it counts such countries as Kazakhstan, Sudan, Russia, Saudi Arabia, Egypt and Malaysia as partners.

Screenshots of emails accessed by Hacking Team's hackers show the company circumventing local regulations and restrictions on the export of exploits and spyware by using third-party resellers.

If you can't see/read the screenshot, here's the pertinent information. The email subject is "Remote Control Davinci System Into Nigeria." Underneath that is the proposed third-party process for sneaking Hacking Team's "Davinci" past import/export restrictions:

Commissions and meeting:

Being an Italian company, we are following the guidelines of our exterior ministry.

Understanding that this is an uncommon circumstance, this is what we are proposing:

HackingTeam will sell directly to your company and then TunsmosPetroleum will add its own mark up. The price you will purchase from us will include a discount on the list price as a compensation for the 1st meeting/demo in Milan and the training (in Milan as well) after the sale.

Other screenshots further confirm Hacking Team's efforts in forbidden markets. One shows the company dealing with a "Sudan Citizen Lab request," suggesting its end user(s) are uncomfortable with the investigative activities CL is performing.

ACLU technologist Chris Soghoian has taken a look at the files and uncovered even more incriminating information, including Hacking Team's stonewalling of a UN investigation into its sales in Sudan. This investigation is the direct result of Citizen Lab's investigative work. According to the files viewed by Soghoian, Hacking Team has denied any "current sales relationship" with Sudan, at least in terms of selling the sort of weaponized software forbidden by multiple treaties and UN resolutions. It claimed the software isn't weaponized tech. The UN disagreed.

Your letter 1029 of 13 March 2015 also stated that the company did not consider the Remote Control Software to be a weapon, and therefore fell outside the parameters of the sanctions regime. The view of the Panel is that as such software is ideally suited to support military electronic intelligence (ELINT) operations it may potentially fall under the category of "military… equipment" or "assistance" related to prohibited items…

There's still plenty more to be uncovered in the document dump. Soghoian has already uncovered a spreadsheet listing every government customer, along with revenue to date.

Whatever happens from here on out should prove very interesting. Hacking Team is in for the longest Monday ever.

Filed Under: citizen lab, governments, hacking team, hacking tools, sudan, un
Companies: hacking team

UN Report: Encryption And Anonymity Deserve 'Strong Protection'

from the not-just-a-matter-of-opinion dept

Techdirt has been following for a while a worrying move to demonize strong encryption, amid calls from politicians and senior law enforcement officials for it to be undermined or compromised. That makes a new report affirming the central importance of encryption (doc), from the UN's Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, particularly valuable. His report clearly inhabits a post-Snowden world, since it takes as its starting point the following:

Contemporary digital technologies offer Governments, corporations, criminals and pranksters unprecedented capacity to interfere with the rights to freedom of opinion and expression.

The report looks at ways in which encryption and anonymity can help to protect basic rights to privacy and freedom of opinion and expression, and explores to what extent governments may impose restrictions. In many ways, the most interesting aspect of his analysis concerns the right to hold opinions:

During the negotiations on the drafting of the [International Covenant on Civil and Political Rights], "the freedom to form an opinion and to develop this by way of reasoning was held to be absolute and, in contrast to freedom of expression, not allowed to be restricted by law or other power". The ability to hold an opinion freely was seen to be a fundamental element of human dignity and democratic self-governance, a guarantee so critical that the Covenant would allow no interference, limitation or restriction.

But as Kaye points out, the ability to hold opinions is now intimately bound up with technology:

Individuals regularly hold opinions digitally, saving their views and their search and browse histories, for instance, on hard drives, in the cloud, and in e-mail archives, which private and public authorities often retain for lengthy if not indefinite periods. Civil society organizations likewise prepare and store digitally memoranda, papers and publications, all of which involve the creation and holding of opinions. In other words, holding opinions in the digital age is not an abstract concept limited to what may be in one's mind. And yet, today, holding opinions in digital space is under attack.

Encryption and anonymity, he concludes, are powerful ways to preserve that right to hold opinions in a digital form:

The right to hold opinions without interference also includes the right to form opinions. Surveillance systems, both targeted and mass, may undermine the right to form an opinion, as the fear of unwilling disclosure of online activity, such as search and browsing, likely deters individuals from accessing information, particularly where such surveillance leads to repressive outcomes. For all these reasons, restrictions on encryption and anonymity must be assessed to determine whether they would amount to an impermissible interference with the right to hold opinions.

In terms of "permissible interference," the following factors are key:

Restrictions on encryption and anonymity, as enablers of the right to freedom of expression, must meet the well-known three-part test: any limitation on expression must be provided for by law; may only be imposed for legitimate grounds (as set out in article 19 (3) of the Covenant); and must conform to the strict tests of necessity and proportionality.

It's the last of those that is increasingly under the spotlight after Snowden's leaks revealed a global system whose underlying principle -- "collect it all" -- is the very antithesis of proportionality:

A high risk of damage to a critical, legitimate State interest may justify limited intrusions on the freedom of expression. Conversely, where a restriction has a broad impact on individuals who pose no threat to a legitimate government interest, the State's burden to justify the restriction will be very high.

Kaye picks up on this theme again in his recommendations, where he notes that encryption and anonymity are not just vital for the right to freedom of opinion and expression in the digital age, but also for other rights, including economic rights, privacy, due process, freedom of peaceful assembly and association, and the right to life and bodily integrity. As a result:

States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows. In addition, States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms). Court-ordered decryption, subject to domestic and international law, may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals (i.e., not to a mass of people) and subject to judicial warrant and the protection of due process rights of individuals.

One issue rather skated over there is what happens when court-ordered decryption is impossible. Kaye rightly notes that it is "a seemingly universal position among technologists that there is no special access that can be made available only to government authorities, even ones that, in principle, have the public interest in mind." Absent such backdoors, you can build systems where even the service providers cannot access messages, which renders court orders moot. Nonetheless, Kaye's report is important, because it offers a counter-argument to repeated assertions by the authorities that encryption is essentially something bad, used by bad people to do bad things. He also has an answer to those who claim that strong crypto will usher in a new Dark Age for law enforcement:

Governments have at their disposal a broad set of alternative tools, such as wiretapping, geo-location and tracking, data-mining, traditional physical surveillance and many others, which strengthen contemporary law enforcement and counter-terrorism.

That's a crucial fact that is almost always overlooked. Its appearance here is another reason why this new UN report is welcome.

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Filed Under: anonymity, encryption, human rights, privacy, un

UN Expert: Secret Trade Negotiations Are A 'Threat To Human Rights'

from the null-and-void dept

Here on Techdirt, we've had plenty of posts looking at the major trade agreements currently being negotiated. As we've noted, criticism of TPP and TAFTA/TTIP has come from many quarters, particularly for the corporate sovereignty provisions, which are seen as problematic both on the left and right wings of the political spectrum. Intellectual Property Watch carries a fascinating statement criticizing key aspects of trade negotiations, which looks at things from quite a different angle. It's written by Alfred de Zayas, who is the "Independent Expert on the promotion of a democratic and equitable international order" -- apparently an honorary and unpaid position. In his statement, he expresses:

his deep concern over the general lack of awareness on the adverse effects that existing, or under negotiations, bilateral and multilateral free trade and investment agreements have on the enjoyment of human rights in many countries, particularly in the developing world.

Specifically, he is concerned about the secrecy of trade talks, and the fact that key stakeholders like trade unions, environmental protection grups and health professionals are excluded -- something that we've commented on many times here on Techdirt. He also thinks that fast-tracking the adoption of treaties -- as is currently being attempted in the US -- has a "detrimental impact on the promotion of a democratic and equitable world order." That's because, as de Zayas puts it:

It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs.

No surprise, then, that de Zayas has particular concerns about an area that is very familiar to Techdirt readers: corporate sovereignty.

I am especially worried about the impact that investor-state-arbitrations (ISDS) have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits.

...

The establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society ("contra bonos mores").

One intriguing point de Zayas makes is that since all nations are bound by the UN Charter, any treaties they negotiate must also conform to its provisions. Article 103 of that Charter states that if there is any conflict between a treaty and the UN Charter, it is the Charter that prevails. That has interesting implications for corporate sovereignty cases before ISDS tribunals:

Provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.

That's a great point, although it's a little hard to see it having much practical impact on the current negotiations. Unfortunately, the same might be said about the whole of de Zayas's statement, but it's certainly good to have his analysis here.

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Filed Under: alfred de zayas, human rights, secrecy, tpp, trade agreements, transparency, ttip, un

Whistleblowers Urge UN To Strengthen Protection For Those Revealing Abuses

from the echoes-of-Snowden dept

Aside from the extraordinary information that he revealed about massive yet unsuspected surveillance programs, Edward Snowden has produced several other collateral benefits through his actions in 2013. For example, recently we learned that the DEA's phone tracking program was cancelled as a direct result of the revelations and the ensuing uproar. Other leakers have started to come forward, apparently inspired by his actions. And as the press has pored over Snowden's actions, it has become clear that support for government whistleblowers is woefully inadequate -- indeed, that they are regarded by the Obama administration pretty much as traitors.

More generally, the debate around Snowden has highlighted the important part that whistleblowers play in sustaining the rule of law and defending democracy. Now a group of whistleblowers has written a letter calling on the United Nations to recognize that role (pdf), and to improve protections within the organization (via Intellectual Property Watch):

As our experience shows, retaliation against whistleblowers affects the entire UN system and goes largely unchecked at all levels, including in the Executive suites. Some UN whistleblowers have been fired or demoted; others have been subject to more subtle forms of abuse like non-renewal of contracts or sudden transfer to duty stations on the other side of the globe; many face plain, simple harassment and intimidation.

The problems they have to deal with are very similar to those encountered by Snowden when he sought to use official channels to raise his concerns:

UN whistleblowers are forced to go through lengthy, and often expensive, internal appeal processes in which the burden of proof, as a practical matter, rests on the whistleblower to demonstrate retaliation (the usual standard in national systems requires the employer to justify their actions were not retaliatory).

As a result, they often end up taking the same route that he did:

Put simply, the UN system of justice fails whistleblowers, and most of us have been forced to leave the UN to save our livelihoods, our health and our reputations.

The letter's signatories go on to call for the UN to review whistleblower protection at the organization, and they make concrete suggestions on improving the lot of those revealing abuses, including recognizing that:

Whistleblower rights are human rights, which must be promoted and protected within the UN, as well as in affiliated specialized agencies and international organisations with immunity from national laws.

And extending whistleblower protections to:

UN peacekeepers, police officers, contractors, victims and any other person who provides information about misconduct that could undermine the organisation’s mission. The key to receiving protection should be the content of the information disclosed, not the identity of the person disclosing it.

Like much of the letter, that last point is applicable generally. It underlines the fact that a completely new framework for whistleblowers is required at every level, both nationally and internationally. The letter to the UN is part of an important move towards making that happen, in what could prove to be a key aspect of Snowden's long-term legacy.

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Filed Under: un, whistleblower protections, whistleblowers

UN Appoints Special Expert To Report On Online Privacy; Surprisingly, US And UK Don't Object

from the wonders-will-never-cease dept

The world of online privacy was changed forever by Edward Snowden's revelations of massive, global spying by the US, UK and others. And the repercussions of his actions continue to make themselves felt. Two countries particularly affected by the surveillance conducted against them, Germany and Brazil, have led efforts to appoint a new rapporteur (special expert) for privacy at the United Nations Human Rights Council, and with surprising success. Despite fears that the US or UK might try to block the move, or neuter the role, they both accepted the following resolution, which was adopted by consensus, without a vote:

The Council invites the Special Rapporteur to include in the first report considerations on the right to privacy in the digital age; calls upon all States to cooperate fully with and assist the Special Rapporteur in the performance of the mandate, including by providing all necessary information requested by him or her, to respond promptly to his or her urgent appeals and other communications, to consider favourably the mandate holder’s requests to visit their countries and to consider implementing the recommendations made by the mandate holder in his or her reports.

It will be interesting to see what happens when the Rapporteur comes calling on the NSA and GCHQ asking for more details of their surveillance operations. The resolution affirmed a general right to privacy:

according to which no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, and the right to the protection of the law against such interference...; recognizes the global and open nature of the Internet and the rapid advancement in information and communications technology as a driving force in accelerating progress towards development in its various forms; and affirms that the same rights that people have offline must also be protected online, including the right to privacy.

The Rapporteur will have no real powers to demand information or enforce recommendations. But at the very least, the creation of this new role will help to increase international awareness of the importance of privacy in the digital world, and of the scale of the threats ranged against it.

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Filed Under: privacy, rapporteur, surveillance, uk, un, us

UN Cultural Rights Rapporteur Delivers Report Condemning Prevailing Copyright Laws

from the in-service-to-industries-and-nations,-rather-than-creators dept

The UN Special Rapporteur in the field of cultural rights, Farida Shaheed, has just delivered a less-than-complimentary report on copyright to the UN's Human Rights Council. Shaheed's report actually examines where copyright meshes with arts and science -- the two areas it's supposed to support -- and finds it runs contrary to the rosy image of incentivized creation perpetuated by the MPAAs and RIAAs of the world.

Shaheed said a “widely shared concern stems from the tendency for copyright protection to be strengthened with little consideration to human rights issues.” This is illustrated by trade negotiations conducted in secrecy, and with the participation of corporate entities, she said.

She stressed the fact that one of the key points of her report is that intellectual property rights are not human rights. “This equation is false and misleading,” she said.

The last statement fires shots over the bows of "moral rights" purveyors, as well as those who view infringement as a moral issue, rather than just a legal one.

Shaheed also points out that the protections being installed around the world at the behest of incumbent industries are not necessarily reflective of creators' desires.

The right to protection of authorship remains with the human author(s) whose creative vision gave expression to the work, even when the copyright interest has been sold to a corporate publisher or distributor. We should always keep in mind that copyright regimes may under-protect authors because producers/publishers/distributors and other “subsequent right-holders” typically exercise more influence over law-making than individual creators, and may have divergent and possibly opposing interests to those of the creators.

In addition, the intellectual property standards pushed by the United States and others treat fair use, personal use copying, educational use and other similar aspects as exceptions rather than something inherent to the permissions granted to rights holders by these laws -- a balancing factor between the copyright holders' and the publics' interests.

The main challenge, I believe, is that international copyright treaties generally treat copyright protections as mandatory, while largely treating exceptions and limitations as optional. The standard for judging whether a particular exception or limitation is permissible under international copyright law is not articulated with precision. This is why one of my recommendations is to explore the possibility of establishing a core list of minimum required exceptions and limitations incorporating those currently recognized by most States, and/or an international fair use provision.

Not that any established industry reliant on these expansive protections would ever agree to such a thing. It took a whole lot of public shaming before industry heads agreed to copyright exceptions for the blind. Anything above this level of begrudging "charity" has been forced down the throats of these industries by various governments.

Shaheed suggests one solution to the imbalance of power in the copyright system: a division of rights between creators and their "representative" rights holders.

Creators often need corporate rights holders: to develop innovative ways of delivering cultural works to the public, provide capital to finance high-budget cultural productions, and free artists from many of the burdens of commercializing their work. The human right to protection of authorship requires that copyright policies be carefully designed to ensure that authors (and not only copyright holders) benefit materially. An appropriate balance is crucial, recognizing that creators are both supported and constrained by copyright rules.

She also points out that it's not only incumbent industries standing in the way of better international copyright laws, but also "incumbent" countries.

Several countries, such as Indonesia and Brazil, commented on the issue of the protection of local and indigenous communities, which is mentioned in the report, for which they said “intellectual property historically failed” to take into account the issues of indigenous peoples.

Some developing countries said the current copyright system hinders the right to development by a violation of the right to education, health and progress and many other rights related to affording a basic decent life to millions in developing countries, according to UN sources.

The reaction of the incumbents?

The US said it disagrees with the report, in particular the recommendation related to copyright norm-setting activities at experts’ discussion in other international fora. They also disagreed on the suggestion that individual creators and corporations or businesses should merit different protections.

Portugal said the current copyright framework constitutes an important tool for human development, especially for cultural and scientific advancement.

France wondered why more established countries weren't considered in the report, arguing that cutting out the major players who wield an inordinate amount of power somehow resulted in an "unbalanced outcome."

The UN will take this report under consideration, along with a second report due later this year from Shaheed dealing with the patent system. Unfortunately, this somewhat scathing look at the present copyright system will do little to derail secretive international trade agreements that foist intellectual property "protections" foisted on smaller, less powerful countries.

Filed Under: copyright, culture, farida shaheed, human rights, un

UN Says Mass Surveillance Violates Human Rights

from the because-it-does dept

Over the summer, the United Nations commissioner for human rights, Navi Pillay, had said that mass surveillance likely violates human rights. At the time, she said:

‟International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data. Practices in many [s]tates have, however, revealed a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight. All of these have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy.”

Now a new report from a different UN official, issued to the UN General Assembly, backs that up and appears to go further:

International human rights law requires States to provide an articulable and evidence-based justification for any interference with the right to privacy, whether on an individual or mass scale. It is a central axiom of proportionality that the greater the interference with protected human rights, the more compelling the justification must be if it is to meet the requirements of the Covenant. The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether. By permitting bulk access to all digital communications traffic, this technology eradicates the possibility of any individualized proportionality analysis. It permits intrusion on private communications without independent (or any) prior authorization based on suspicion directed at a particular individual or organization.

The report is clear that it's not talking about just any surveillance -- but mass surveillance. It notes that preventing terrorism is a legitimate reason for targeted surveillance, but that since there's no proof that mass surveillance actually helps stop terrorism, it's in violation:

Article 17 of the Covenant provides that any interference with private communications must be prescribed by law, and must be a necessary and proportionate means of achieving a legitimate public policy objective. The prevention of terrorism is plainly a legitimate aim for this purpose, but the activities of intelligence and law enforcement agencies in this field must still comply with international human rights law. Merely to assert — without particularization — that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use. The fact that something is technically feasible, and that it may sometimes yield useful intelligence, does not by itself mean that it is either reasonable or lawful (in terms of international or domestic law)

The report also takes on the whole "but it's the internet, you have no privacy anyway" argument pretty clearly:

Some argue that users of the Internet have no reasonable expectation of privacy in the first place, and must assume that their communications are available to be monitored by corporate and State entities alike. The classic analogy drawn by those who support this view is between sending an unencrypted email and sending a postcard. Whatever the merits of this comparison, it does not answer the key questions of legality, necessity and proportionality. The very purpose of the Covenant’s requirement for explicit and publicly accessible legislation governing State interference with communications is to enable individuals to know the extent of the privacy rights they actually enjoy and to foresee the circumstances in which their communications may be subjected to surveillance. Yet the value of this technology as a counter-terrorism and law enforcement tool rests in the fact that users of the Internet assume their communications to be confidential (otherwise there would be no purpose in intruding upon them). This is reflected in the assertions made by members of the intelligence communities of the United States of America and the United Kingdom of Great Britain and Northern Ireland following the disclosure of mass surveillance programmes operated by these two States, in which the disclosures were said to have damaged national security by alerting potential terrorists to the fact that their communications were under surveillance.

[....] The suggestion that users have voluntarily forfeited their right to privacy is plainly unwarranted. It is a general principle of international human rights law that individuals can be regarded as having given up a protected human right only through an express and unequivocal waiver, voluntarily given on an informed basis. In the modern digital world, merely using the Internet as a means of private communication cannot conceivably constitute an informed waiver of the right to privacy under article 17 of the Covenant.

The Internet is not a purely public space. It is composed of many layers of private as well as social and public realms. Those making informed use of social media platforms in which messages are posted in full public view obviously have no reasonable expectation of privacy. The postcard analogy is entirely apposite for the dissemination of information through the public dimensions of Twitter and Facebook, for example, or postings on public websites. But reading a postcard is not an apposite analogy for intercepting private messages sent by e-mail, whether they are encrypted or unencrypted.

From there, the report notes that if states wish to impede on this privacy in the name of preventing terrorism, they must show tangible benefits from such surveillance -- and, so far, no government has done so. Furthermore, the report warns of:

...an ever present danger of “purpose creep”, by which measures justified on counter-terrorism grounds are made available for use by public authorities for much less weighty public interest purposes.

It's good to see such a clear condemnation of the problems of bulk/mass surveillance efforts -- almost always conducted with no evidence of benefit. Of course, the reality is that this report is unlikely to lead the intelligence community to change its stance on these programs, but it further highlights just how out of step with basic human rights these programs remain.

Filed Under: human rights, mass surveillance, nsa, privacy, surveillance, un