Leaked Documents Show New Zealand Company's Connection To GCHQ's Internet Dragnet

from the build-a-better-data-scoop-and-the-world's-government-will-beat-a-path-to-you dept

Another stack of documents has been leaked to The Intercept, these ones detailing a little-known New Zealand company's facilitation of worldwide surveillance.

Dozens of internal documents and emails from Endace, obtained by The Intercept and reported in cooperation with Television New Zealand, reveal the firm’s key role helping governments across the world harvest vast amounts of information on people’s private emails, online chats, social media conversations, and internet browsing histories.

Endace -- like almost every other company in the literal spyware business -- also seems willing to sell to the highest bidder, no matter where they sit on their home nation's friends/enemies lists.

The leaked files, which were provided by a source through SecureDrop, show that Endace listed a Moroccan security agency implicated in torture as one of its customers. They also indicate that the company sold its surveillance gear to more than half a dozen other government agencies, including in the United States, Israel, Denmark, Australia, Canada, Spain, and India.

The documents now in The Intercept's hands detail Endace's work for GCHQ, assisting it in its quest to pull as much data and communications as it can from underseas cables which conveniently route about one-fourth of the world's internet traffic into the waiting arms of the spy agency. These leaked documents were cross-referenced with The Intercept's Snowden stash to confirm their legitimacy.

The documents show GCHQ asked Endace for several modifications of the stock product it originally presented to the agency. These alterations served one purpose: to build haystacks faster.

A November 2010 company document said that “FGA” ["friendly government agency"] had an order of 20 systems scheduled for delivery in March 2011. Each system was equipped with two “data acquisition” cards capable of intercepting 20Gs of internet traffic. The total capacity of the order would enable GCHQ to monitor a massive amount of data — the equivalent of being able to download 3,750 high-definition movies every minute, or 2.5 billion average-sized emails an hour.

Other info in the documents shows Endace and GCHQ were (are?) aiming for deployment of 300-500 of these systems, allowing the agency to pull in a large percentage of the traffic traveling through tapped underseas cables. There are also hints that suggest some data is more useful to the GCHQ than others, with WhatsApp, Facebook, Gmail, and Hotmail being specifically named. Also of importance to GCHQ: the ability to track targets by MAC address.

When Endace isn't selling to "friendly" government surveillance agencies (and "friendly" governments with decades of human rights abuses under their belts), it's also selling its interception technology to telcos to better assist them in complying with law enforcement requests.

Perhaps the most darkly comic aspect of all of this is that UK and New Zealand taxpayers are likely being double-dipped for surveillance efforts that encompass their own data and communications. Not only are they paying for the tech and ongoing collection efforts, but Endace was also awarded $11.1 million in government grants to defray 50% of the cost of "substantial product developments." Endace isn't saying which products were developed using these grants, and the New Zealand government says the company isn't obligated to reveal how this money was spent.

Filed Under: gchq, new zealand, surveillance
Companies: endace

Sanity: MasterCard Loses Absolutely Idiotic Trademark Challenge Against An Athletic Competition

from the nice dept

I will occasionally have someone suggest to me that we don't cover enough good or positive news about intellectual property disputes here at Techdirt, and I know our other writers occasionally hear that as well. I think it's probably not as true as those folks think it is, but certainly we talk about the problems in the IP realm more than when courts and businesses get it right. Still, it's a good idea to highlight that the entire collective world isn't insane on these kinds of issues.

Which brings us to a trademark dispute in New Zealand, brought by credit card company MasterCard against a sporting event. And the dispute itself is certainly laughable.

MasterCard International Inc challenged the colour and words of the 2017 World Masters Games, to be held in Auckland, claiming it was too similar to its own logo. MasterCard argued the event's name and logo was "likely to deceive or cause confusion" and was too similar to the credit card company's name and logo. World Masters Games disagreed. World Masters Games said there was no confusion, or even allegations of confusion, despite the parties' respective marks co-existing in new Zealand since at least March 2014.

Yes, while both MasterCard's logo and the logo for World Masters Games almost share a word in common, that obviously isn't enough to amount to anything remotely resembling trademark infringement. Instead, the real focus was on that common word and its use in the logos for each company, with MasterCard insisting that those logos were so similar that customers would be confused. And here are the logos in question.

One wonders if there is a gas leak in the legal department at MasterCard HQ. Because there is nothing in those logos that would mislead a drunken chimp, never mind a human being. Yet MasterCard moved forward with challenging the trademark application for World Masters Games, because trademark bullying knows no limits. The Intellectual Property Office of New Zealand, fortunately, essentially laughed this out of the trademark office.

However, the Intellectual Property Office of New Zealand ruled MasterCard had no grounds to oppose and allowed the registration of 2017 World Master Games' logo. In her decision, Trade Marks assistant commissioner Natasha Alley said the opposed mark – that of World Masters Games – was "visually, aurally and conceptually dissimilar to the MasterCard word marks".

"They convey very different ideas and look and sound different."

That's a more polite way of saying, "Why in the world are you even here bothering us with this?" Good on the IP office of New Zealand for getting this exactly correct.

Filed Under: likelihood of confusion, new zealand, trademark
Companies: mastercard, world masters games

New Zealand Court Grants Kim Dotcom's Request To Have Extradition Hearing Livestreamed On YouTube, Despite DOJ Protests

from the sorry-doj dept

The Kim Dotcom extradition appeal is now under way, with the first question being whether or not the courtroom drama could be livestreamed on the internet for a global public to watch. The request was originally made by Kim Dotcom and his lawyers, but the lawyers for the US government opposed... because... well, just because.

"US defends mass surveillance programs with 'If you have nothing to hide, you have nothing to fear' but opposes live streaming of my hearing," Dotcom, who attended some of the hearing, said on Twitter.

Honestly, it's not at all clear why the government lawyers are opposing this other than to just oppose stuff and be generally obstructionist. However, it doesn't appear to have worked. A little while ago, Dotcom's lawyer Ira Rothken announced that the court had agreed to allow live streaming: And Kim Dotcom himself tweeted that it would begin tomorrow, once a cameraman was set up: This should be an interesting hearing to watch no matter what. If you want a preview of some of the points, check out our podcast interview with Dotcom's lawyer, Ira Rothken from last week.

Filed Under: extradition, hearing, ira rothken, kim dotcom, live stream, livestream, new zealand

Recording Industry Whines That It's Too Costly To Keep Copyright Terms At Life Plus 50, Instead Of Life Plus 70

from the wait,-what? dept

Okay. I've heard lots of crazy arguments from the record labels, but I may have found the craziest. We've discussed how ridiculous it is that the TPP includes a provision saying that every country that signs on must make sure the minimum copyright term is life plus 70 years. This will impact many of the countries that negotiated the agreement, which currently have terms set at life plus 50. This was a key point that the recording industry and Hollywood fought hard for. When even the Copyright Office recognizes that life plus 70 is too long in many cases, the legacy industries recognized that getting copyright term extension through Congress in the US might be difficult -- so why not lock stuff in via international agreements?

And, of course, the USTR was fine with this, because the USTR goes along with basically everything that Hollywood asks for. But here's the crazy part: having gotten such a ridiculous thing, the recording industry is whining about its own victory. As Kimberlee Weatherall points out, the recording industry in New Zealand is bitching about the fact that the change doesn't go into effect immediately because it's "too costly" for copyright holders.

That's because the TPP has a "phase-in period" that allows countries to adjust and gradually move copyright terms upwards. But the record labels are having none of that:

Meeting before a parliamentary committee this week, Recorded Music chief executive Damian Vaughan said his advocacy group supports an article in the TPP deal that standardizes the terms of protection of a work to the life of an author plus 70 years. (New Zealand is one of several participating nations that currently has a term of 50 years after death.) However, Vaughan thinks a proposed phase-in period for nations upgrading to 70 years is unnecessary and a costly burden for rights holders.

"It's not making copyright simple or easy to understand to the music user or the public whatsoever," he said, according to RadioNZ. "It is making the process significantly more complicated, and it's the rights organizations and the copyright holders who will be forced to administer this… We note the cost we incur will be far higher than any perceived cost savings."

Now, think about what Vaughan is really saying here. Let's be clear: copyright term extension is deliberately removing these works from the public domain. When they were created, a deal was struck between the public and the content creator. That deal said "this work goes into the public domain, but to give you incentive to create it in the first place, we'll give you some limited exclusive rights for this amount of time." That's the deal that was struck. But, now, with copyright term extension, that deal gets thrown out, screwing over the public. They don't get anything back despite the fact that material that was destined for the public no longer is. So there's a massive cost to the public and no payment whatsoever. That's problematic alone.

And to make things even more obnoxious, Mr. Vaughan is whining that not being able to fuck over the public fast enough is unfair because it puts too much "cost" on the record labels? REALLY? Boo fucking hoo. You were the ones who pushed for extending copyright terms, and now you want to whine that it might be too costly to administer the process? Fine, fuck it. Let's just toss out the extension and maybe consider decreasing copyright terms overall. That'll give the record labels a lot less to administer, saving them lots and lots of money. Oh, and also giving the public what they were promised. Seems like a good deal all around.

Filed Under: copyright, copyright terms, new zealand, recording industry, term extension

Snowden Docs Show NSA, New Zealand Spied On Pro-Democracy Activists

from the we-love-democracy,-not-so-much-those-who-advocate-for-it dept

The Intercept has published a few more documents from the Snowden stash -- these ones detailing the NSA's partnership with New Zealand's top intelligence agency to place pro-democracy activists under surveillance.

As part of the spy mission, the NSA used its powerful global surveillance apparatus to intercept the emails and Facebook chats of people associated with a Fijian “thumbs up for democracy” campaign. The agency then passed the messages to its New Zealand counterpart, Government Communications Security Bureau, or GCSB.

One of the main targets was [Tony] Fullman, a New Zealand citizen, whose communications were monitored by the NSA after New Zealand authorities, citing secret evidence, accused him of planning an “an act of terrorism” overseas.

The "act of terrorism" claims were odd, considering Fullman's activism was aligned with the New Zealand government's own views: opposition to neighboring Fiji's authoritarian ruler, Frank Bainimarama. Utilizing PRISM, the NSA intercepted Fullman's Gmail and Facebook messages, along with gathering everything it could from his public postings -- including this data on his apparently terrorism-related personal vehicle.

Both the NSA and its New Zealand partner have refused to comment on the misguided surveillance, stating only that everything done was performed lawfully.

The erroneous assumptions of terrorism seem to be linked to Fullman's lifelong friendship with a top Fijian military official. Fullman grew up in Fiji, where he met Ratu Tevita Mara in the 1960s. Fullman moved to New Zealand while in his 20s before returning to take a government position in 2009. By that point, Mara had moved up in the military to a position as the Fijian army's chief of staff. Mara, however, drew heat from the Fijian government for his opposition to the current regime.

Mara was dissatisfied with the leadership and, in May 2011, he became embroiled in a high-profile dispute with the Bainimarama regime. He was accused of plotting to overthrow the government and charged with uttering a seditious comment. He was hauled before a court, where he was threatened with imprisonment for allegedly uttering the words, “This government is fuck all.”

Mara fled Fiji, remaining in contact with Fullman, who also left Fiji after being questioned by local authorities about his relationship with Mara. A visit to New Zealand with Mara resulted in Fullman's life being turned upside down.

At 7am on July 17, 2012, about a week after Fullman had returned to Australia from the trip to New Zealand, a team of more than a dozen Australian security agents and two Australian federal police detectives arrived at his sister’s home in Sydney looking for weapons and other evidence of the suspected plot.

They seized computers, phones and documents from the premises and confiscated Fullman’s passport on behalf of the New Zealand authorities. Teams of New Zealand Security Intelligence Service officers and police simultaneously raided Fullman’s former apartment in the Wellington suburb of Karori and the homes of at least three other Fiji Freedom and Democracy movement supporters in Auckland, seizing their computers and other property.

In addition, Fullman's passport was revoked by the New Zealand government, which claimed Fullman was part of a group planning to violently overthrow the Fijian government. New Zealand's intelligence agency asked the NSA for assistance in digging up info on Fullman and keeping him under surveillance. The documents published today make Tony Fullman the first confirmed target of the NSA's PRISM surveillance.

According to the documents viewed by The Intercept, the NSA couldn't seem to decide how to classify its surveillance of Fullman, alternating between listing him as a "foreign government" target (even though Fullman no longer worked for the Fijian government) and a "counter-terrorism" target.

Months of surveillance efforts -- shared with New Zealand intelligence operatives -- produced nothing more than what could likely have been observed without all the intercepted emails/Facebook messages, harvested bank statements, and precise GPS data on Fullman's Mitsubishi station wagon.

[T]here was not a single hint of any plans for violence or other clandestine activity.

It would soon become clear that there was no evidence to support the New Zealand authorities’ suspicions. And gradually, their case would fall apart.

Ten months after placing Fullman under surveillance and stripping him of his passport, New Zealand's government returned it to him and declared him to be "no longer" of "national security concern." This determination came two months after Fullman began taking legal action against the New Zealand government for its raid of his sister's home and the cancellation of his passport.

That's not the only bit of suspicious timing: Fullman believes the raid was politically-motivated.

Four days after the raids on Fullman and his fellow campaigners, New Zealand foreign minister Murray McCully traveled to Fiji for trade talks. Fullman believes that the timing was no coincidence — and that the raids targeting the pro-democracy group were used by the New Zealand government as a bargaining chip to curry favor with the Bainimarama regime. “The minister can go to Fiji and say, ‘look we saved you, let’s be friends again, let’s start talking about how we can help each other again’,” Fullman says. “It was part of the frame up.”

The New Zealand government may have felt its efforts fell into "no harm, no foul" territory after it reinstated Fullman's passport and dropped its surveillance. But Fullman points out the high-profile raid it carried out damaged his reputation by erroneously linking him to an assassination plot. On top of that, Fullman is still subjected to additional security screening any time he travels. Fullman was never informed he was under surveillance by a foreign intelligence agency and he has never been compensated, much less apologized to, for his treatment at the hands of his own government.

The surveillance detailed here shows the NSA is willing to help foreign governments spy on their own citizens for politically-motivated reasons involving what would normally be considered protected forms of expression. It also shows that when governments do this sort of thing, they're unlikely to admit any wrongdoing, even when they tacitly admit they placed the wrong person(s) under surveillance.

Filed Under: ed snowden, gcsb, new zealand, nsa, prism, snowden docs, surveillance, tony fullman

Appeals Court Says It's Perfectly Fine For The DOJ To Steal Kim Dotcom's Money Before Any Trial

from the this-is-pretty-fucked-up dept

Last year, there was a series of very troubling rulings by a district court in a case related to the criminal prosecution of Kim Dotcom. This wasn't, technically, part of the actual criminal case against him, but rather a separate effort by the government to steal his money. We've been covering the ridiculous process of civil asset forfeiture for a while, and it's really problematic in general. In Dotcom's case, it's something of a farce. Remember, civil asset forfeiture is the situation where the US government effectively files a civil (not criminal) lawsuit against inanimate objects, rather than people. In this case, it basically filed a lawsuit against all of Kim Dotcom's money, arguing that it was the proceeds of a crime and therefore, the government should just get it all. Again, this is entirely separate from the actual criminal trial of Kim Dotcom, which has been put on hold while the extradition battle plays out in New Zealand (determining if Dotcom can be forcibly sent to the US to stand trial).

Just the whole process of civil asset forfeiture is troublesome enough. As we've detailed over and over again, it's basically a system whereby law enforcement gets to steal money and other stuff (cars are popular) from people, simply by claiming that they were used in a criminal endeavor. Since the lawsuit is against the stuff, if people want it back, they have to go and make a claim on it, and it's a fairly convoluted process. In this case, things were even more ridiculous, because the government argued that because Dotcom was resisting extradition from New Zealand, he could be declared "a fugitive" and the judge overseeing the case (the same one overseeing his criminal case, Judge Liam O'Grady) agreed. That effectively meant that Dotcom had no legal right to protest the government simply taking and keeping all of his assets -- and they moved forward and did exactly that.

It is difficult to see how this can be legitimately described as anything but theft by the US government. It got someone locked up in New Zealand, based on questionable legal theories, and while he was (quite reasonably) fighting extradition to the US (a place he's never visited and where he has no business ties), it initiated a separate legal process to keep all his money, no matter what happens in his extradition fight and criminal trial. On top of that, it effectively barred him from making an official claim on that money by having him declared a fugitive for exercising his legal due process rights to fight extradition. So while he exercises his legal due process rights in New Zealand, he's blocked from doing so in the US. And all of his money goes to the US government.

As we said after O'Grady's ruling came out, even if you think that Dotcom is guilty of a criminal copyright conspiracy, and even if you think he should be extradited, tried and locked up this should concern you. Let him go through the full legal process, with all that due process entails, and then determine what should happen to his assets. To take them before that's happened, through this questionable side process is immensely problematic.

And that's why Dotcom appealed, and many others -- including a bunch of criminal defense lawyers -- stepped in to argue this was crazy. Unfortunately, earlier today, the 4th Circuit Appeals Court upheld O'Grady's ruling and rubber stamped the DOJ's legalized theft of Dotcom's assets. You should read the 61 page opinion (which was a 2 to 1 decision, with an interesting dissent), but we'll hit on some of the low points here.

There were a number of different arguments raised -- with a big one not just being the basic due process question, but a jurisdiction question. Dotcom's assets are not in the US. His work was not in the US. So why does the US get to seize the money. The majority opinion basically says "because that's what Congress wanted -- it created this law to let the US government seize overseas assets." The opinion admits that there's a bit of a circuit split on this, but goes for it anyway.

When the amendments were introduced in the Money Laundering Improvements Act, Senator D’Amato included an explanatory statement indicating that subsection (b) was intended to provide the federal district courts with jurisdiction over foreign property:

Subsection (b)(2) addresses a problem that arises whenever property subject to forfeiture under the laws of the United States is located in a foreign country. As mentioned, under current law, it is probably no longer necessary to base in rem jurisdiction on the location of the property if there have been sufficient contacts with the district in which the suit is filed. See United States v. $10,000 in U.S. Currency[, 860 F.2d 1511 (9th Cir. 1988)]. No statute, however, says this, and the issue has to be repeatedly litigated whenever a foreign government is willing to give effect to a forfeiture order issued by a United States court and turn over seized property to the United States if only the United States is able to obtain such an order.

Subsection (b)(2) resolves this problem by providing for jurisdiction over such property in the United States District Court for the District of Columbia, in the district court for the district in which any of the acts giving rise to the forfeiture occurred, or in any other district where venue would be appropriate under a venue-for-forfeiture statute.

This is the point that the dissent disagrees on, and argues that the forfeiture should be blocked on jurisdictional questions alone. The key, according to Judge Henry Floyd, is that court decisions must be binding on parties, and not advisory. But that doesn't work when you're talking about an opinion concerning assets overseas, which will still then depend on the local government where those assets live to abide by the ruling.

The majority side-steps this concern by cabining it to the separation of powers context. One of the basic tenets of what constitutes a “case or controversy” cannot be elided so. The defendant in this action--the res--is outside of the United States and beyond the control of the district court. Absent control, no order of the district court can be binding on the res because the fate of the res is ultimately not in the hands of the district court. Instead, the res in this case is subject to the control of the courts of New Zealand and Hong Kong. The district court’s forfeiture order therefore merely advises the courts of a foreign sovereign that (in the district court’s view under the laws of the United States) the United States should have title to the res. Those courts, of course, with control of the res and with the authority vested in them by their own sovereigns, remain free to revise, overturn, or refuse recognition to the judgment of the district court.

As Judge Floyd notes, this makes the opinion nothing more than an advisory opinion, which is prohibited by Article III of the Constitution (concerning the powers of the judiciary).

Back to the majority opinion, the court rejects the argument that this process to steal Dotcom's money without letting him defend himself violates the Due Process Clause of the Fifth Amendment. First, the court says that because some of Megaupload's servers were based in Virginia, the jurisdiction is fine. Then, the court accepts the lower court's decision that Dotcom can be called a "fugitive" even as he's both in contact with the court and going through a perfectly legal process around extradition in New Zealand. Somewhat incredibly, the court decides that because he's resisting extradition, that's the same thing as being a fugitive hiding out. That... should be troubling for a whole variety of reasons. Basically, the court says that due process means that Dotcom has the right to be heard protesting the forfeiture, but that the only way to do that is to stop fighting extradition. It gets down in the weeds parsing the law in determining what the right standard is for determining if fighting extradition counts as being a fugitive, and decides that this was Congress' intent with the law -- that so long as the person is avoiding court, even if for reasons relating to the legality of extradition, they can still be declared a fugitive.

The claimants’ argument that they have legitimate reasons to remain where they are, such as jobs, businesses, and families does not disprove that avoiding prosecution is the reason they refuse to come to the United States.

I imagine that Dotcom's lawyers will now try to fight this as well -- seeking either an en banc rehearing or petition the Supreme Court to hear the case. Both are pretty risky, with a fairly high probability of being rejected. And, of course, as the dissent pointed out, there's still one other hurdle for the DOJ: the assets are held in Hong Kong and New Zealand, and they now need to convince authorities in those two places to hand over the money. And, as of right now, it's not clear if they'll actually let it happen.

Again, no matter what you think of Dotcom's actual criminal case, this result should be concerning to you. The use and abuse of civil asset forfeiture is the real issue here -- not the copyright questions. The ability of the US government to simply take millions of dollars based on accusations and without a guilty verdict in a trial should be tremendously worrying. If a full trial happened and he was found guilty, then there's a reasonable argument that, as a result of that, the money can be forfeited. But it's extremely problematic that the money can be forfeited in these circumstances, before the rest of the legal process has occurred. Under this ruling, even if Dotcom came to the US and was found not guilty, the US government would still keep all his stuff. Can anyone explain how that would be a fair and just result?

Filed Under: 4th circuit, article iii, asset forfeiture, civil asset forfeiture, copyright, doj, due process, hong kong, jurisdiction, kim dotcom, new zealand
Companies: megaupload

New Zealand Government Trying To Streamroller TPP Through Ratification Without Proper Scrutiny Or Public Input

from the so-much-for-that-'don't-worry,-you-can-debate-it-when-it's-finished& dept

Back in February, we noted that the TPP has been officially signed, and that the focus now moves on to ratification by each of the 12 participating countries. On this score, there's been plenty of sound and fury in the US, including bizarre demands to re-negotiate TPP, but less coverage of what is happening elsewhere. As we noted, Canada's ratification has ground to a halt as the new government there launches "widespread consultations." Japan, too, won't be ratifying TPP for a while, for reasons explained by The Mainichi site:

The government and ruling Liberal Democratic Party (LDP)-Komeito coalition decided to put off attempting to ratify the treaty and enact related bills as they determined that a combination of opposition party resistance and the Kyushu earthquake disaster response leaves insufficient time to deliberate the legislation. The administration of Prime Minister Shinzo Abe is not planning to extend the current Diet session, which is scheduled to end on June 1. The government will instead carry the ratification and bills over to an extraordinary Diet session to be convened this autumn, to discuss them again in the House of Representatives for final approval and enactment.

The government in New Zealand, by contrast, seems to be doing everything in its power to ram through TPP as quickly as possible, with little time being given for that full public debate so frequently promised. Even the country's MPs are being stampeded, as Radio New Zealand News reports:

MPs have been given just five days to consider hundreds of submissions on the controversial TPP trade deal after the timeframe was drastically cut from four weeks.

The select committee was originally give a month to write its report and present it back to Parliament.

According to the news item, the committee was due to hear from hundreds of people who were keen finally to make their voices heard. But the government has apparently decided that it just doesn't care what the public thinks:

The tight deadline meant the [MPs'] draft report would be written before the committee had finished hearing all the submissions.

Apparently, the New Zealand government isn't interested in democracy, only timetables:

Opposition members on the committee say they were told yesterday the government wanted to cut down the time they had to analyse the submissions, so the legislation could get through by the end of the year.

Nor are MPs and the public the only ones being treated in a shabby way. So is the Waitangi Tribunal, which is an important commission charged with investigating and making recommendations on claims brought by the indigenous Māori people relating to actions by the New Zealand government. Because the select committee of MPs examining TPP will produce its report earlier than expected, the Waitangi Tribunal also finds itself with little time to consider the issue properly. An article on the Scoop site suggests that might be intentional:

"Why the government suddenly announced it is fast-tracking the report date for the select committee considering the Trans-Pacific Partnership Agreement (TPPA) from the end of May to 4 May is now clear.

It gives the Waitangi Tribunal three rather than seven weeks to produce its urgent report on the claim brought by prominent Maori that the Agreement violates the Crown's obligations under the Treaty of Waitangi", says Professor Jane Kelsey who has been advising the claimants.

What makes the situation even more worrying for New Zealanders is something Techdirt wrote about a couple of months ago: the fact that even if TPP fails, it seems that laws brought in to comply with the terms of the treaty would not be rolled back by the New Zealand government. That's an extremely good reason to take things slowly and carefully -- not to rush ahead recklessly as is currently happening.

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

Filed Under: democracy, new zealand, public input, ratification, tpp

New Zealand Says Laws To Implement TPP Will Be Passed Now, Despite US Uncertainties, And Won't Be Rolled Back Even If TPP Fails

from the lose-lose dept

As Techdirt has noted, there is evidence from multiple sources that TPP will produce negligible economic benefits for most of the nations involved. Some governments are clearly well aware of this, because they are desperate to avoid an objective cost-benefit evaluation that would show that claims about TPP's value don't stack up. Even given that pig-headed determination to push the deal through, basic prudence would surely dictate that before making all the complex legislative changes required by TPP, countries should at least wait to see whether it's going to happen. Not in New Zealand, apparently, judging by this blog post by Kennedy Graham, a Member of Parliament for the Green party there:

Yesterday in Parliament I asked the Prime Minister if he is planning to change our laws to implement the Trans-Pacific Partnership Agreement (TPPA), even before it is clear if the US Congress will ratify it.

The Prime Minister said he was going to push ahead with changing our laws and wouldn't wait to see if the US was going to actually ratify the agreement.

If Congress doesn’t agree to the TPPA, or if the Japanese Parliament doesn’t, the whole deal falls apart. This is because the TPPA requires ratification by countries representing at least 85 percent of the total GDP, and that means the US and Japan have to be on board.

But as Graham points out, there's a problem with that:

We could find ourselves in a lose-lose situation where we've changed our laws to suit the TPPA, but the TPPA itself never comes into force so the tariffs and other trade barriers don't disappear for our exporters.

So then I asked, if the TPPA becomes null and void because the US Congress dumps it, will New Zealand reverse the changes to our laws that we’ll have already made?

The Prime Minister's answer was no. The Government won't delay introducing and passing legislation to ratify the TPPA, and then won't reverse the laws if it doesn’t go ahead.

As the video below indicates, when John Key, the Prime Minister of New Zealand, was challenged by Graham on this point, Key replied with barely-disguised contempt:

If the United States doesn't ratify the legislation, it's null and void with the United States, in which case we don't have anything to worry about.

But that doesn't really address the question. Yes, TPP will be null and void, but what about the domestic legislation that New Zealand will already have passed at that point? Here are some of things that will have happened:

Changing the length of copyright from 50 years to 70 years, with an annual cost of around [NZ]$55 million. We'll also need to establish new enforcement powers for Customs, and new civil and criminal penalties for copyright infringement.

Changes to the Patents Act, which are likely to complicate Pharmac’s access to cheaper medicines.

Changing the Plant Varieties Act, making it harder for farmers to save seeds for use in the following season, and the Agricultural Compounds and Veterinary Medicines Act to strengthen the rights of agricultural chemical manufacturers.

Maybe those changes would be automatically reversed if TPP fails, but Key did not say that in his answer, when he could have done so in order to dispel any doubts. The fact that New Zealand is one of the countries that will not be carrying out an independent cost-benefit analysis of the trade deal does not inspire confidence. As Graham points out, it seems that there is a very real risk that people in New Zealand will end up with most of the disadvantages of TPP, but with none of the advantages, which were slim enough to start with.

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

Filed Under: copyright, john key, kennedy graham, legislation, new zealand, politics, ratification, tpp

Countries Sign The TPP... Whatever Happened To The 'Debate' We Were Promised Before Signing?

from the now-the-ratification-fight dept

About an hour ago, representatives from 12 different nations officially signed the Trans Pacific Partnership (TTP) agreement in Auckland, New Zealand. The date, February 4th (New Zealand time) is noteworthy, because it's 90 days after the official text was released. There was a 90 day clock that was required between releasing the text and before the US could actually sign onto the agreement. The stated purpose of this 90 day clock was in order to allow "debate" about the agreement. Remember, the entire agreement was negotiated in secret, with US officials treating the text of the document as if it were a national security secret (unless you were an industry lobbyist, of course). So as a nod to pretend "transparency" there was a promise that nothing would be signed for 90 days after the text was actually released.

So... uh... what happened to that "debate"? It didn't happen at all. The TPP was barely mentioned at all by the administration in the last 90 days. Even during the State of the Union, Obama breezed past the TPP with a quick comment, even though it's supposedly a defining part of his "legacy." But there's been no debate. Because there was never any intent for an actual debate. The 90 day clock was just something that was put into the process so that the USTR and the White House could pretend that there was more "transparency" and that they wouldn't sign the agreement until after it had been looked at and understood by the public.

Of course, the signing is a totally meaningless bit of theater. The real fight is over ratification. The various countries need to ratify the TPP for the agreement to go into effect. Technically, the TPP will enter into force 60 days after all signers ratify it... or, if that doesn't happen, within two years if at least six of the 12 participant countries ratify it and those six countries account for 85% of the combined gross domestic product of the 12 countries. Got that? In short, this means that if the US doesn't ratify it, the TPP is effectively dead. The US needs a majority of both houses of Congress to approve it, similar to a typical bill. And that's no sure thing right now. Unfortunately, that's mainly because a group of our elected officials are upset that the TPP doesn't go far enough in helping big businesses block competition, but it's still worth following.

Inevitably, there will be some debate during the ratification process, though there are enough rumors suggesting that no one really wants to do it until after the Presidential election, because people running for President don't want to reveal that they're happy to sell out the public's interest to support a legacy business lobbyist agenda. But, even that debate will likely be fairly limited and almost certainly will avoid the real issues, and real problems, with the TPP.

Either way, today's symbolic signing should really be an exclamation point on the near total lack of transparency and debate in this process. The 90 day window was a perfect opportunity to have an actual discussion about what's in the TPP and why there are problems with it, but the administration showed absolutely no interest in doing so. And why should it? It already got the deal it wanted behind closed doors. But, at least it can pretend it used these 90 days to be "transparent."

Filed Under: aukland, debate, new zealand, ratification, signing, tpp, transparency, ustr

NZ Newspaper: An 'Honor' To Welcome Small Pacific Rim Countries As They Sign Away Much Of Their Sovereignty

from the most-comprehensive-and-far-sighted-economic-agreement-of-all-time dept

As we've written recently, a report from the World Bank suggests that the economic benefits from TPP will be slight for the US, Australia and Canada. New Zealand is predicted to do better, but not much: the econometric modelling predicts a 3.1% boost to its GDP by 2030 -- roughly 0.3% extra GDP per year. That's a pretty poor payback given the price participant countries will have to pay in terms of copyright, biologics and corporate sovereignty. Such details have not prevented one of the main newspapers in the country, the New Zealand Herald, from banging the drum for TPP's signing ceremony, which is probably going to take place quite soon:

New Zealand is about to have the honour of hosting the formal signing of the Trans-Pacific Partnership agreement by trade ministers from 12 nations of the Pacific rim. And it is an honour. This is the most comprehensive and far-sighted economic agreement the world has seen in our lifetime, possibly of all time.

Rather bizarrely, the editorial goes on to list TPP's many problems:

The TPP's intellectual property discussions raised the risk that US patent law and copyright protection of pharmaceuticals and other products of investment in science and research could be strengthened at considerable cost to public purchasing agencies, such as Pharmac, and innovation in digital technology in other countries. Medical professionals and IT developers have been among those fearful of the TPP during the course of its negotiation. So were environmentalists and public health promoters. They feared the inclusion of investor-state dispute settlement procedures could stop governments taking action in the interests of public health or the environment that would reduce the value of commercial investments.

At this point, you might expect a refutation from the editorial, and a compelling explanation why all those concerns proved misguided. Instead, it notes that many of these fears were stoked by the insane secrecy surrounding the negotiations, and suggests that since the text was released two months ago, everything's OK now. The editorial has to admit that yes, there are 6000 pages that need to be read, but points out that the final text has provided great summer holiday reading for those in the Southern Hemisphere. It then makes the following claim:

The precise terms seem to have survived scrutiny so far.

In fact, the release of the TPP text has amply confirmed the main worries regarding just about every aspect of the deal. For anyone wanting a quick catch-up on the major problems there, Michael Geist is running a helpful series with the self-explanatory title "The Trouble with the TPP":

[I] wanted to expand on the trouble with the TPP in more detail. With that goal in mind, I plan to post each weekday until February 4th on problems associated with the TPP. The series will include posts on copyright, privacy, Internet governance, and many other issues.

Maybe the editors at the New Zealand Herald should read the series before the TPP signing ceremony, so that at least they understand why the following is not going to happen:

It is too much to hope any fears now assuaged [sic] will reduce the scale of protest at the signing. But it should not be too much to ask that those philosophically opposed to free trade respect the views of those who disagree with them, and let this country host the occasion with dignity and pride.

Dignity, maybe. But pride? That's hardly appropriate given what is really happening here.

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

Filed Under: australia, canada, corporate sovereignty, new zealand, signing, tpp, us