Even Before TPP And TTIP, US Already Being Forced To Change Laws By Trade Agreements

from the not-so-cool dept

Recently, we looked at how corporate sovereignty provisions undermine democracy by irrevocably binding future governments. The analysis was framed in terms of the UK's situation, but applied more generally to any country that signs up to investor-state dispute (ISDS) mechanisms in trade agreements. In particular, it applies to the US. And yet in President Obama's (in)famous TPP speech at Nike a few weeks ago -- the one where he claimed some of his "dearest friends" were wrong -- he said the following:

[TPP] critics warn that parts of this deal would undermine American regulation -- food safety, worker safety, even financial regulations. They're making this stuff up. (Applause.) This is just not true. No trade agreement is going to force us to change our laws.

But as a post on the Institute for Agriculture and Trade Policy site points out, just 12 days after Obama made that speech, this happened:

The House Agriculture Committee voted 38-6 to repeal in its entirety country-of-origin-labeling (COOL) for beef, pork and poultry. The House vote came in response to a May 18 ruling by the World Trade Organization (WTO) that the U.S. had violated global trade rules by requiring supermarket labels on beef and pork to indicate where livestock was born, raised and slaughtered.

…

Congress has not repealed it because of overwhelming public support for COOL -- 90% of Americans support such a measure, according to Consumer Reports. Needless to say, civil society including farm, ranch, consumer, labor and other groups, won't sit quietly. But the fact is that the U.S. has to change COOL or face trade sanctions (though how significant is unclear). The USTR has already indicated it will encourage Congress to revise COOL.

As that makes clear, alongside the fact that it is quite possible that the US will indeed modify its laws here because of a trade agreement, this would be happening even though the laws in question enjoy huge support among the US public. Which shows that trade agreements can not only force laws to be changed, but can do so with absolutely no regard to what the people in whose name they are supposedly negotiated, actually want.

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Filed Under: binding, international obligations, laws, regulations, tpp, trade agreements, ttip, wto

How Corporate Sovereignty In Trade Agreements Can Force National Laws To Be Changed

from the they-said-it-couldn't-be-done dept

As we noted recently, one of the most worrying aspects of corporate sovereignty chapters in trade agreements is the chilling effect that they can have on future legislation. That's something that the supporters of this investor-state dispute settlement (ISDS) mechanism never talk about. What they do say, though, is that corporate sovereignty cannot force governments to change existing laws. A recent defeat for Canada before an ISDS tribunal proves that's not the case:

An international trade tribunal has ordered Ottawa to pay ExxonMobil and another oil company $17.3 million, following a complaint that the companies were required to spend money in Newfoundland and Labrador on research and development.

The case was brought by ExxonMobil using the corporate sovereignty provisions in the North American Free Trade Agreement (NAFTA), and concerned another agreement, called the Atlantic Accord. As CBC News explains:

Under the terms of the Atlantic Accord, a federal-provincial agreement on oil development first negotiated in 1985, oil companies are required to support petroleum-focused research and development in Newfoundland and Labrador, as part of its local benefits package.

In other words, three decades ago, Canadian politicians had passed a research and development package, one of whose measures was designed to boost local employment -- exactly the kind of thing that voters want their politicians to do. But the ISDS tribunal ruled that under NAFTA, this was not permitted, and awarded substantial damages to ExxonMobil for being required to comply with the Atlantic Accord. But it gets worse:

Unless the governments of Canada and Newfoundland and Labrador agree to change the R&D legislation, Ottawa could be on the hook for continued damages. The federal government is responsible because NAFTA is an agreement between sovereign nations.

That is, the corporate sovereignty provisions in NAFTA are being used to force the Canadian government to change existing and long-standing legislation -- something that ISDS fans assure us never happens.

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Filed Under: corporate sovereignty, isds, laws, regulations, tafta, tpp, trade agreements, ttip

Florida Legalizes Teen Sexting By Trying To Outlaw Teen Sexting

from the breaking-something-that's-fixing-something-that-ain't-broken dept

When laws intersect with human sexuality, they usually do so badly. Teens are sexting -- something many people believe is normal, but many, many more people believe is somehow wrong. This sort of behavior has existed since the introduction of the Polaroid camera, but with nearly every teen in possession of both a camera and a transmission device, the trading of sexually explicit photos has increased exponentially.

Sure, some sexting leads to bullying or the uninvited sharing of supposedly "private" photos, but for the most part, it seems to be consensual behavior. The Problem That (Mostly) Isn't is usually tackled by criminalizing the behavior. What law enforcement and legislators fail to understand is that criminalizing normal human behavior just creates more criminals, rather than curbing the undesired behavior.

One "solution" has been to twist sexual offense laws into incredibly abnormal shapes to fit this "crime." If Teen Boy Doe takes a photo of his own genitalia and sends it to a willing recipient, he's just created and distributed child pornography. Anyone who receives it is now in possession of child pornography. Everyone involved now has a chance to kiss their futures goodbye by taking a trip to the sexual offender registry. Turning a child into his or her own pornographer boggles the mind, and yet, some feel this is a perfectly acceptable response.

The other "fix" is legislation. Armed with more good intentions than functioning brain cells (and backed by parents who feel the government is better equipped to raise their children), legislators craft specific laws to criminalize normal human behavior. It's only slightly better than the first option, in that it usually doesn't result in people being accused of producing their own child pornography, directed by and starring themselves. But it still doesn't fix the "problem," and it still results in criminal records for minors who haven't really done anything criminal.

If you're Florida -- the United States' mentally unstable, pill-addled uncle -- you fuck it up completely. (via Reason)

Here’s the sorry story of the state’s latest legal mishap: In 2011, the legislature passed a “sexting” statute barring minors from sending images of nudity (their own or somebody else’s) to other minors. The first offense would qualify as only a civil infraction; minors who violated the law would merely have to perform court-ordered community service or pay a $60 fine. The second and third offenses, however, would qualify as misdemeanors, while the fourth offense would qualify as a felony.

While Florida legislators congratulated each other on their savvy solution -- one that would deter sexting without overcriminalizing it -- they failed to notice a glaring loophole in the newly-minted law. This didn't become apparent until the state tried to enforce it by using it against a student who took a vagina selfie (out of "boredom") and sent it to others.

Florida law doesn’t give any court jurisdiction of civil infractions by juveniles—as opposed to criminal infractions—and the sexting statute doesn’t grant any court this kind of jurisdiction. Accordingly, no court in the state currently has legal authority to hear a case involving minors sexting.

So, if the first infraction is always a civil matter -- and the courts can't touch a civil case involving a juvenile -- this means no juvenile can ever be prosecuted under Florida's anti-sexting law. It's the law that isn't, which indicates it really shouldn't have been written in the first place.

[B]ecause that first offense is a civil infraction—and because no court can hear civil cases involving minors—it is legally impossible for any minor to be charged with that first offense. As a result, there simply cannot be a second, third, or fourth offense. Sexting between teens—even sexting images of a minor’s nude body—is now functionally legal in Florida.

No doubt legislators are now rushing back to their DoSomethingmobiles to "fix" a law that shouldn't have been enacted in the first place. And whatever they slap into place with the glue of good intentions and old-fashioned moral panic will likely be worse than this inadvertent legalization of teen sexting.

Filed Under: florida, laws, sexting, teens

Police Chief Trying To Find Some Way To Charge Drone Operator Who Didn't Break Any Laws

from the I-AM-THE-[NONEXISTENT]-LAW dept

Don't let the fact that no crime occurred stop you from attempting to prosecute someone, Sparky. (via PINAC)

Naperville Police Chief Robert Marshall said he is consulting the city's legal department after the three-minute video posted on YouTube by user JPDrone came to his attention. Shot at night, a drone camera flies over City Hall and several downtown streets, providing a unique view of seasonal decorations while cars and pedestrians move around city streets below.

Photography Is Not A Crime points out that there is no law in Illinois that addresses what happened here. The closest the state gets to private drone prohibition involves a very specific set of circumstances.

While Illinois has passed a law making it a crime to use a drone to interfere with hunting and fishing, there are no other state laws preventing the public from using “drones,” more appropriately called RC (remote-controlled) copters.

If the local lawyers can't figure out some way to nail John Pauley for his not-illegal act, Chief Marshall is willing to go over his own head.

"Obviously, if they're flying over a public area, you have to ask if there's any risk to public safety, who's the operator and if he's abiding by the regulations set in place by the FAA," Marshall said. "There was a request from an individual who wanted to fly a drone camera overhead at Ribfest last summer, and we did not allow that."

Ah, "public safety." The one-size-fits-all hammer for every annoying nail that refuses to fit neatly into existing legal confines. The thing is, John Pauley has been very careful about his drone usage ever since his run-in with the Geneva (IL) police department officers, who expressed concern about his flying camera. Since then, Pauley has made an effort to notify proper employees before taking to the air. This includes the Naperville Police Department.

He said he called Naperville police before doing the nighttime video, which he said was filmed from less than 200 feet above the city.

This statement remains unaddressed. Neither confirmed nor denied or even acknowledged. So, it's Pauley's word against the Naperville PD's, the latter of which hasn't offered any words contradicting his claim.

Maybe Chief Marshall is just suffering from drone envy. Illinois state laws do prohibit the use of drones by law enforcement.

Section 10. Prohibited use of drones. Except as provided in Section 15, a law enforcement agency may not use a drone to gather information.

The Section 15 exceptions (and there are a lot of them) are: preventing a terrorist attack, with a warrant, imminent harm to life, locating a missing person (but notably, not as part of a criminal investigation), and crime scene/crash photography. Flying over private land for the latter also requires the acquisition of a search warrant. "Freedom from drone surveillance," as the law is titled. That applies to law enforcement only. It says nothing about private use.

The FAA may choose to fine Pauley if Chief Marshall decides to rat him out (the FAA restricts private drone usage to daytime hours), but it appears there's little he can actually do about this from his end. Marshall appears to believe that if he thinks something's illegal, it must actually be, even if all evidence points in the other direction -- really not the sort of attitude you want in a law enforcement official.

As of yet, no charges have been filed, but never underestimate the creativity of law enforcement personnel whose common sense has been shouted down by their desire to prosecute.

Filed Under: drones, john pauley, laws, naperville, police, robert marshall

Google Allegedly Closing Down Russian Engineering Office In Response To Russian Data Laws

from the not-messing-around dept

It appears that Google may be done messing around with ridiculous laws. Just after announcing that it was shutting down Google News in Spain due to a ridiculously bad copyright law that is about to go into effect, it's been reported that the company is also shutting down its Russian engineering office, likely in response to new Russian laws, requiring that any personal data of Russian citizens be held inside the country. The Russian government, of course, claims this is to better protect Russian citizens, but most people believe it's actually to allow for greater surveillance of Russian citizens:

Google Inc has plans to shut down its engineering office in Russia amid a crackdown on internet freedoms and a law regarding data-handling practices, the Wall Street Journal reported.

Of course, Russia is not alone in either requiring localized data storage or in ramping up digital surveillance. It's going to be worth watching how a variety of large internet companies start dealing with these new challenges. Ever since the Snowden leaks first came out, many in the tech industry warned of the threat of "localization" rules that might splinter the internet, by requiring all data to be stored "locally" (greatly diminishing the economies of scale of global data centers). Closing down one office in protest is worth noting, but it only foreshadows a much bigger global fight to come.

Filed Under: data laws, data retention, engineering, laws, russia, splintering
Companies: google

Carl Malamud's Public.Resource.Org Joins Effort To Make Pay-Walled Indian Standards Freely Available

from the operating-system-of-society dept

Techdirt has been covering for some time Carl Malamud's project to open source the "operating system of society" by placing digital versions of US laws, codes and regulations on the site Public Resource. But of course, the logic of allowing the public to be able to read all the laws and regulations that govern them applies outside the US just as much. And so it's perhaps no surprise that Malamud has joined with other campaigners (including Vint Cerf) in petitioning the Indian government to allow that country's standards to be made freely available to the public in the same way. Here's a summary of the move:

Public.Resource.Org, a non-profit that works on spreading knowledge on the Internet for the benefit of the general public, along with a few other concerned folks have petitioned the [Indian] Government to make the currently pay-walled "Indian Standards" available and accessible to the general public for free. As the petition points out, since these Standards govern the safety and reliability of several thousands of day to day products & processes, there are several unnecessary negative cascading effects that the current financial barrier to accessing them creates. As these Standards also serve as edicts of the Government, the petition submits that as is the case with legislation, the general public also has a right to be able to view these Standards. Aside from this, giving the general public access to these Standards would also be in line with the work of the Government's work on maintaining and improving these Standards. It is hoped that the Ministry revisits its Copyright policy which currently disallows the free promulgation of these Standards.

That comes from Swaraj Paul Barooah, on the excellent Spicy IP site. He's also one of the petitioners, and the rest of his post is an interesting discussion of the reasons why public standards should be freely available. It also explains why the petition has become necessary:

In June, 2013, Carl Malamud, on behalf of Public.Resource.Org procured a complete set of Indian Standards from BIS [the Bureau of Indian Standards] and not only made them available online for public non-commercial use, but also took great pains to retype and process many of the standards to make them more useful to people -- including redrawing 202 diagrams in in SVG vector format to allow for them to be resized and cut and pasted into documents by users, retyping and reformatting the entire National Building Code of India (as well as over 700 other Standards) into valid XHTML code so that it works in modern browsers and mobile platforms etc.

However, when he applied for a renewal in 2014, he received a reply stating that his efforts were against the copyright policy of BIS and was requested to remove all documents relating to the standards from his website, failing which legal action would be taken against him for violation of their copyright.

That, of course, is a story with which Malamud is all-too familiar. Luckily, that means he has plenty of experience in overcoming whatever objections the authorities have to allowing the public to read key documents without having to pay for them. Let's hope he and his fellow petitioners are successful -- not just for India's sake, but also as an example for many more countries around the world to follow.

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Filed Under: carl malamud, copyright, india, laws, public, public access, regulations, standards

Proposed Terror Law Would Allow Australia's Entire Internet To Be Monitored With Just One Warrant

from the terrorists-have-already-won dept

Recently, Techdirt has been following the Australian government's moves to bring in intrusive new surveillance powers. The "justification" for all this is, of course, "terrorism", which has become the lazy politician's excuse for everything, and has already led to episodes of ridiculous over-reaction in Australia. So it hardly comes as a surprise that the worsening situation in the Middle East has brought forth even more of the same, in the form of the "Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014" (pdf). An accompanying Explanatory Memorandum (pdf) gives a good summary of its rationale:

1. Australia faces a serious and ongoing terrorist threat. The escalating terrorist situation in Iraq and Syria poses an increasing threat to the security of all Australians both here and overseas. Existing legislation does not adequately address the domestic security threats posed by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas ('foreign fighters').

2. This Bill provides a suite of measures which are specifically designed to strengthen and improve Australia’s counter-terrorism legislative framework to respond to the foreign fighter threat. It will provide additional powers for security agencies to deal with the threat of terrorism within Australia and that posed by Australians who participate in terrorist activities overseas. It will further counter terrorism through improving border security measures and by cancelling welfare payments for persons involved in terrorism.

The Bill is a huge collection of amendments to dozens of existing laws, including those that regulate police search powers. Here's CNET's description of a major change in this field:

The Bill introduces the concept of a "delayed notification search warrant" -- often referred to in the United States as a 'no-knock warrant' -- which would allow Australian Federal Police to search premises without prior warning and "without having to produce the warrant at the time of entry and search".

The Explanatory Memorandum details an important new capability relating to computers:

As computers and electronic devices are becoming increasingly interconnected, files physically held on one computer are often accessible from another computer. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere. This provision would enable the tracing of a suspect's internet activity and viewing of material accessed by the suspect through the use of that equipment.

That seems rather broad; an article in the Sydney Morning Herald reveals just how broad:

On Wednesday afternoon, [Australian Attorney-General] Senator Brandis confirmed that under the legislation, ASIO [Australia's spy agency] would be able to use just one warrant to access numerous devices on a network.

The warrant would be issued by the director-general of ASIO or his deputy.

"There is no arbitrary or artificial limit on the number of devices," Senator Brandis told the senate.

This means that the entire Australian internet could be monitored by just one warrant if ASIO wanted to do so, according to experts and digital rights advocates including the Australian Lawyers Alliance, journalist union the Media Entertainment and Arts Alliance and Electronic Frontiers Australia.

Whether or not new powers are needed to address the problem of "foreign fighters" returning home, clearly that ability to monitor the entire Australian Internet with just one warrant is completely disproportionate, an assault on citizens' privacy, and ripe for abuse by the authorities. It underlines once again that abrogating basic freedoms in order to "fight terrorism" simply means the terrorists have already won.

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Filed Under: asio, australia, george brandis, laws, surveillance, terror, warrants

Supreme Court Quietly Changes Rulings After Releasing Them; Refuses To Reveal What Those Changes Are

from the supreme-court-needs-a-public-diff dept

The NY Times has a fascinating article about how the Supreme Court often changes rulings long after they've been released, sometimes changing them significantly, but rarely doing anything to alert the public (or lawyers and legal scholars) of those changes. The article is based on a forthcoming paper by Richard Lazarus on the (Non)Finality of Supreme Court Opinions. While many of the changes are small edits to fix errors, sometimes they can be fairly big deals. In some cases, the errors were so egregious that the change makes news:

Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

But, as the article notes, there are times when these changes slip by almost entirely unnoticed, even when they're considered rather important:

A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

In another case, the article notes that even the version of a ruling on the Supreme Court's own website is outdated.

This is an easy problem for the Supreme Court to fix: they should make their change page open to the public and post the diff whenever they make a change, so that anyone can quickly see how a change was made. But they don't do this. While the Supreme Court does have change pages that show all the revisions, they are blocked from public view, and only four private legal publishers are given access. There is simply no reason for this, and it again leads to a situation where we have private, secret law, rather than a public law. It's a dangerous and shameful practice, and one that the Supreme Court could easily end tomorrow. It should do so.

Filed Under: changes, diffs, laws, legal scholars, rulings, secrecy, supreme court, transparency

New Net Neutrality Bill Introduced, Has No Chance Of Passing

from the this-is-not-the-solution-you're-looking-for dept

Well, this was inevitable, but a group of Representatives have introduced a new net neutrality bill, called the Open Internet Preservation Act of 2014, which attempts to bring back the FCC's rules that an appeals court struck down. The bill is more PR than anything else. For whatever reason (actually no good reason at all), net neutrality has become a purely partisan issue in Congress (Democrats for, Republicans against) and based on the fact that this bill only has Democrat sponsors, it means, first off, that it's only going to rekindle the same old fight without solving anything and go nowhere. But, more importantly, it's still the same old situation trying to kludge together a temporary solution for the real problem, which is the lack of a competitive market.

Filed Under: anna eshoo, congress, ed markey, fcc, henry waxman, laws, net neutrality

Editorial Claims Houston Prosecutors Are Pushing Through Nearly 1,000 Sex Trafficking Indictments Every Day

from the do-you-even-math dept

Editorials written in support of legislation are prone to conjuring up hysterical situations/numbers in order to drive the point home. You can't motivate the average reader if there's no hook. But the editorial writer should at least make sure the numbers being used don't immediately prompt incredulous laughter from any reader with a couple of functioning brain cells.

The editorial board for the Dallas Morning News recently issued a regrettable opinion piece supporting the Justice for Victims of Trafficking Act, which was introduced last week. In the writer's hurry to portray human trafficking as a terrible blight on humanity, credibility went right out the window.

Two Texas Republicans, Sen. John Cornyn and Rep. Ted Poe of the Houston area, are co-sponsoring a bill that would impose stiff penalties on these adult victimizers of up to life in prison. The Justice for Victims of Trafficking Act, which has bipartisan support in both houses, would supplement an existing law that focuses primarily on punishing sex-trafficking organizations abroad.

Poe and Cornyn estimate that one-quarter of U.S. sex-trafficking victims have Texas roots. Poe says our state's proximity to Mexico and high immigrant population give the state a particularly high profile. In Houston alone, about 300,000 sex trafficking cases are prosecuted each year. Tighter border controls and reduced profit margins from the drug trade are pushing organized crime groups to turn increasingly to sex trafficking, law enforcers say.

That ridiculous figure, which posits that Houston prosecutes nearly 900 sex traffickers a day (if working 365 days a year), has since been removed by the editorial squad at Dallas Morning News. The update line notes that "inaccurate numbers" had been used and have since been deleted. (The original version can be found here towards the middle of the page.)

This amazing claim was completely debunked by Houston criminal defense attorney Mark Bennett, who broke down actual prosecution stats and the possible rationale behind the Dallas News' decision to run with the 300,000/year claim.

Nobody seems to know where that 300,000 num­ber comes from. (Mag­gie McNeill sug­gests a plau­si­ble gen­e­sis here and here.) It’s a cou­ple of orders of mag­ni­tude less obvi­ously wrong than the same num­ber attrib­uted to Hous­ton, but still glar­ingly obvi­ously wrong—if the wrong­ness of “300,000 sex-trafficking cases in Hous­ton” were equiv­a­lent to get­ting smacked upside the head with a 2X4, “300,000 sex-trafficking cases in the United States” would be get­ting poked in the arm with a fork.

That's the hype. Here are the numbers.

In Har­ris County, accord­ing to Texas Office of Court Admin­is­tra­tion sta­tis­tics, 36,862 new felony cases were filed and 68,142 new mis­de­meanor cases were filed in 2012. So the total of all new cases filed in Har­ris County is nowhere near the 300,000 sex traf­fick­ing cases asserted by the Dallas Morn­ing News.

Bennett speculates the DMN may have just misquoted Rep. Ted Poe, one of the sponsors of the bill.

Poe, a Repub­li­can from Hum­ble, said sex traf­fick­ing rings prey on the large num­ber of immi­grant women and girls liv­ing in the Hous­ton area and across Texas, account­ing for a dis­pro­por­tion­ate share of the esti­mated 300,000 sex traf­fick­ing cases pros­e­cuted each year.

As Bennett points out, there aren't even 300,000 federal prosecutions nationwide per year. 2010's report shows only 91,047 people being prosecuted in federal courts, so even Poe's nationwide claim is demonstrably false. Even more damning are these numbers.

Federally funded human trafficking task forces opened 2,515 suspected incidents of human trafficking for investigation between January 2008 and June 2010.

Now, it's bad enough that one of the bill's sponsors would throw out an unresearched "statistic" like this while pushing legislation. But that's somewhat expected from our politicians, especially when they've got a horse in the race. But it's even worse when a journalistic entity not only takes this stat at face value, but makes it comically worse by severely reducing its scope from national to local.

Mistakes will be made occasionally. I understand that. But this one should never have made it past the first round of editing. Certainly Rep. Poe is partially to blame for this, but the paper's editorial team should know that presenting patently untrue claims as fact severely weakens its stance on the issue. Of course, coming out in favor of punishing sex traffickers is hardly a controversial stance, so it's likely the editorial didn't receive a thorough vetting before publication.

But letting this slip through compromises the paper's credibility and accepting Rep. Poe's "statistics" as fact indicates DMN is in possession of a faulty BS-detector, something no serious journalistic entity should ever let fall into disrepair.

Filed Under: congress, dallas morning news, exaggeration, laws, sex trafficking, ted poe