Bloomberg Points Out That White House's Near Total Lack Of Transparency May Doom TPP

from the indeed-it-will dept

While the NY Times apparently has no problem endorsing the TPP agreement despite not having read it (because it's still totally secret), it appears that other news organizations are feeling differently. Bloomberg's editorial folks have written a pretty strong editorial slamming the Obama administration for the unnecessary and counterproductive secrecy around the Trans Pacific Partnership (TPP) agreement. And this isn't from people who are against the overall agreement. To the contrary, they argue that a good free trade agreement between pacific rim countries would be very helpful for economic and job growth. But the near total lack of transparency by the US may doom the entire project.

The Bloomberg editorial notes that, contrary to USTR Michael Froman's laughable claims of transparency, last week's leak of the IP chapter showed how little transparency there had been, since the US was asking for lots of very controversial things, without any willingness to discuss this with the public. As they note, just because items are controversial, it doesn't mean that the federal government should hide them from both Congress and the public -- in fact, quite the opposite.

The administration may cite the controversies such provisions would provoke as a reason for keeping them secret. Yet just because a deal creates tension among competing interests isn’t a license to keep them uninformed. And the U.S. has invited more than 500 corporate advisers to help it negotiate a deal.

Corporations and trade groups, however, don’t represent the broader interests of consumers, workers, environmentalists and … oh, yes, taxpayers. Theoretically at least, representing them is Congress’s rightful role. Keeping it in the dark feeds the perception that the TPP is a special-interest free-for-all.

Basically, the argument here is similar to what I said last week: there wouldn't be this kind of controversy if the USTR had sucked it up and actually been transparent. That means discussing publicly what they're negotiating in our name, releasing draft texts of what they're proposing, and then being open for discussion about it all. The USTR points to that last one -- the fact that they'll "talk to anyone" as evidence of transparency. But without the first two things, that last one isn't transparency at all.

While Bloomberg has its own credibility problems these days, I'm somewhat surprised that it has come out so strongly against the way the administration and the USTR in particular, has handled the TPP negotiations. Many large media organizations, and especially a corporate appeasing one like Bloomberg, were mostly expected to do what the NYT did -- repeat the topline claims about what the TPP is supposed to accomplish, and assume that the details don't matter.

The details do matter quite a lot, and the USTR still doesn't think we should be able to see them.

Filed Under: congress, michael froman, secrecy, tpp, transparency, ustr, white house

USTR Insists Secret, MPAA-Backed TPP Is 'Most Transparent Trade Negotiation In History'... From Hollywood Studio

from the does-anyone-believe-this-crap? dept

Honestly, it's somewhat difficult to believe that someone who works in the USTR didn't recognize that it was a bad idea to have their new boss, Michael Froman, who was once called one of the most "egregious examples" of the "revolving door" between companies and government, head out to visit two of the largest Hollywood studios just days after the IP chapter of the secretive TPP agreement was leaked, showing that it was basically Hollywood's wishlist of copyright crap. It's even more difficult to believe, given all that and given that Froman decided to go hang out with some friendly folks in Hollywood anyway, that someone at the USTR didn't think maybe, just maybe, Froman should avoid giving an interview in which he'd be asked about the leaked chapter.

But, it happened. Of course, the interview was with Variety, so maybe they figured that only Hollywood people would read it, and that the rest of the world would never catch on to the fact that Froman is either totally clueless or a blatant liar about the TPP. However, he did give an interview, while "touring Paramount's backlot" in which he said a bunch of nutty things. Here's my favorite:

He also called the talks over the trade pact “the most transparent trade negotiation in history,” noting that they have held more than 1,000 briefings on Capitol Hill, have enlisted 600 advisers for input from various groups and have invited stakeholders to address negotiators from all 12 countries, among other efforts.

Let's just say, this is pure bullshit. Extreme bullshit. Honestly, even Variety (which, as you might imagine, tends to toe the Hollywood line) seems to suggest that this claim isn't actually true. And, of course, considering that the USTR is infamously secretive, being "the most transparent in history" doesn't mean you were actually transparent at all. And, in this case, the fact that he's claiming it's "the most transparent in history" days after a chapter that no one in the public has seen during nearly four years of negotiations had to be leaked should highlight the level of bullshit that Froman is spewing.

He seems to have pulled this "most transparent" bullshit from his predecessor, Ron Kirk, who used to claim the same thing. Both are fundamentally trying to mislead. We've said it before, and we'll say it again, listening to lots of people, while not revealing what you're doing, is not transparency. It's listening. Listening may be better than not listening, but it's completely different than "transparency." Let me make this even clearer:

• Listening: People ---- information -----> USTR
• Transparency: USTR --- information ----> The Public

What Froman described above is about listening. They get "advice" from various stakeholders. That's not transparency. That's listening. So long as no one gets to see what crap they're negotiating "on our behalf," there's no transparency. At all. The only time this negotiation had any transparency was when Wikileaks finally released the IP chapter which the USTR should have and could have done years ago.

The other bit of bullshit in the interview was his misleading response to the claim by some that TPP is like SOPA. Now, I should be clear that we've avoided making that comparison, because there is a different set of issues here. And Froman used those differences to try to discredit all criticism of TPP:

“For example, as I understand it, I wasn’t around for it, (the Stop Online Piracy Act) was about blocking rogue Internet sites from accessing the Internet from the United States. There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that,” he said.

But "blocking rogue websites" isn't what's making people make the comparison between TPP and SOPA. It's two things: (1) a backroom deal negotiated in secret with no input from the public which (2) includes basically a wishlist from Hollywood. The fact that the two wishlists are not identical is not really the point, but it's the point Froman chose to focus on, because he's trying to mislead the public.

Froman continues to demonstrate that he has no business in the role he's in:

“Our goal through these trade negotiations is to make sure we are raising the standard of protection around the world, for artists and the people who support them,” he said.

Except that's not supposed to be the goal at all, and the fact that he thinks it is makes him clearly unqualified for his job. Remember that the TPP is supposed to be about free trade, yet here he is admitting that his actual agenda is increasing protectionism. Second, as anyone who knows anything about intellectual property knows, "raising the standard of protection" has been shown repeatedly to be rather harmful to creators and the public. And, again, the entire purpose of copyright law is supposed to be about promoting progress for the public. It would appear that Froman doesn't know this. And yet he's in charge of negotiating this thing? Really?

This is the reason why transparency matters. Because when you take someone who doesn't understand intellectual property at all, such as Froman, and tell him to negotiate a trade agreement in which the only people he shares the negotiating text with are maximalists, all he hears is how they have to "raise" standards, even as most of the world has realized that the "standards" are already way too high and tremendously damaging to the economy and innovation.

Either way, this whole situation is incredible. You have the USTR, just days after the secret treaty that was written with the help of Hollywood's lobbyists is leaked out, declaring that it's the most transparent in history despite the fact that, if he had his way, none of the public would have seen it, and saying so while touring Hollywood studios. The USTR is either extremely confident that no one cares about trade agreements, or a large segment of the staff there is profoundly clueless. Or maybe it's both.

SOPA was taken down because it was a backroom deal and a Hollywood wishlist, without respect for the public. ACTA went down for the same reason. If Froman doesn't want the same thing to happen to TPP, he might want to learn a thing or two about intellectual property and what transparency means. Because as of right now, he appears to be setting himself up to be roadkill for another internet uprising.

Filed Under: acta, michael froman, sopa, tpp, transparency, ustr
Companies: disney, mpaa, paramount

Google's Latest Transparency Report Mocks The Gag Order FISC Puts On Them Over NSA Requests

from the not-so-subtle dept

Google has released the latest version of its transparency report concerning government requests. While they focus on how government requests for information have doubled over the past three years, they also have a not-at-all-subtle jab at the FISA Court and the DOJ for continuing to block their efforts to reveal how many FISA Amendments Act Section 702 requests (the so-called PRISM requests) they get from the government, and how many people it impacts. As you hopefully already know, Google (along with other tech companies) is in the process of suing the government over this restriction on its free speech. You can see that demonstrated pretty clearly in the bottom righthand quadrant of the graphic they released. Just call it the "redacted" infographic. Google's legal director on this issue, Richard Salgado, explains:

We want to go even further. We believe it’s your right to know what kinds of requests and how many each government is making of us and other companies. However, the U.S. Department of Justice contends that U.S. law does not allow us to share information about some national security requests that we might receive. Specifically, the U.S. government argues that we cannot share information about the requests we receive (if any) under the Foreign Intelligence Surveillance Act. But you deserve to know.

Earlier this year, we brought a federal case to assert that we do indeed have the right to shine more light on the FISA process. In addition, we recently wrote a letter of support (PDF) for two pieces of legislation currently proposed in the U.S. Congress. And we’re asking governments around the world to uphold international legal agreements that respect the laws of different countries and guarantee standards for due process are met.

The longer the government keeps this form of censorship up, the worse it looks. What could possibly be "revealed" by letting Google and others say how many requests they've received under that act? The pervasive secrecy from the NSA may be a cultural trait, but there is no basis for it here.

Filed Under: first amendment, fisa amendments act, gag order, nsa, section 702, surveillance, transparency, transparency report
Companies: google

The Most Nefarious Part Of The TPP Proposal: Making Copyright Reform Impossible

from the the-tricks-they-pull dept

So with yesterday's revealing of the IP chapter of the TPP, there are plenty of great analyses out there of what's in there, but I wanted to highlight some parts that are the most nefarious and downright slimy in that they represent parties (mainly the US) pretending to do one thing while really doing another. These are tricks pulled by a dishonest, shameful USTR, entirely focused on making his corporate buddies richer at the expense of everyone else. Remember, our current USTR, Michael Froman, has a long history of this kind of crap. While he hasn't been there throughout the negotiating process, it shouldn't be surprising that he "delivers" this sweetheart deal to a few legacy industry players.

Watch closely, and you'll see supporters of TPP, and especially USTR employees, make the claim that nothing or almost nothing in the TPP will require legal changes in the US. They'll say that this is just about "harmonizing" norms across borders to make it easier for businesses to do business internationally. This is a lie.

It's a lie in two different ways. First, there are multiple provisions in here that will absolutely require changes to US law. We'll discuss a few in other posts, but what's much more nefarious and downright obnoxious, is that this would lock in a variety of really bad copyright policies, making it nearly impossible for Congress to go back and change them. And that's a real issue, because, as we've been discussing, Congress is actually discussing copyright reform again. The head of the US Copyright Office, Maria Pallante, has proposed a bunch of changes to copyright law (some good, some bad), and astoundingly, just as Congress is at least trying to have the discussion about whether or not those and other ideas make sense, the USTR is looking to effectively tie everyone's hands by saying "these things cannot be changed," including many of the reforms that Pallante has directly proposed.

That's really quite incredible if you think about it. On the one hand, you have the very head of the Copyright Office suggesting some reforms, and you have Congress beginning the process to explore that. On the other, you have the USTR totally ignoring the sole power of Congress to make copyright and patent law, and effectively saying "you cannot make any of the suggested reforms." And then the USTR has the gall to ask Congress to give up its power to challenge specific provisions in the agreement? While we're concerned about the Congressional copyright reform process, at least it's being done in the open. The USTR has been hashing out the plan in TPP in total secrecy for years.

Who the hell does the USTR think they are that they can flat out override the Constitution and the Congressional process, and effectively block them in and stop any meaningful attempt at copyright reform? All done via a process driven entirely by a few special interests? It's anti-democracy. It's pure corporate cronyism by the worst cronies around.

Now, defenders of this proposal will lie. They'll claim that technically (1) Congress has to approve this and (2) nothing in a trade agreement can limit Congress's ability to pass laws. Neither point is really true (the fun with things that are "technically" true, but false in reality). As mentioned above, the USTR (and President Obama) is pushing extra hard for Trade Promotion Authority, which basically is Congress granting the USTR full power over the TPP. Normally, Congress would be able to debate, challenge and reject questionable provisions in the agreement. But, with TPA "fast track" ability, Congress could only give a yes/no vote on the whole package. And, yes, some will claim that they can just vote no, but the reality is that there are other parts of this agreement that are designed to make that nearly impossible. There are all sorts of little things that we'll be told we "need." TPA is a bit of theater. What's delivered to Congress will almost have to be passed -- so if it's granted (before it's even public what's in the full agreement) -- Congress has effectively approved the whole agreement.

As for the claim that Congress' hands cannot be bound by a trade agreement, this is again technically true, but it ignores that it becomes realistically impossible. The second that Congress tries to change a law that goes against the TPP -- such as, say, reducing the term of copyrights from the insane level today to merely crazy -- lobbyists and pundits will come screaming from every direction about how we can't abandon our "international obligations." We'll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it's in the trade agreement, "breaking it" becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they've perfected this process of getting crap they can't get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it. They're not even shy about it, admitting this is exactly how they got the DMCA in the first place. Considering that the TPP has a form of DMCA-on-steroids, it shouldn't be a surprise that they're using an even bigger trade agreement to do the same thing.

All of this should lead to a basic question: why is the USTR and President Obama directly trying to undermine Congress' sole authority over copyright and patent policy? Are they proud of the tricks they tossed in the agreement? I imagine that when the USTR staffers move on to their jobs in the same industries that pushed them to write the agreement this way, they'll all laugh about that time they fucked over the American public.

Filed Under: congress, copyright, copyright reform, maria pallante, michael froman, tpp, transparency, ustr

USTR's Weakass Response To TPP's IP Chapter Leaking

from the *cough*-bullshit-*cough* dept

We already wrote about the leaking of a recent draft of the IP chapter of the TPP agreement -- almost two years since the previous leak. While we're going to have some more posts digging deeper into many of the horrific problems with the agreement (and how it was created), first I just wanted to note -- and to respond to -- the USTR's weakass response to both the leak and the outcry that has surrounded it:

The intellectual property negotiation in the Trans-Pacific Partnership discussions has not been completed and a final text has not been agreed to. We are working with Congress, stakeholders, and our TPP negotiating partners to reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values, including by seeking strong and balanced copyright protections, as well as advancing access to medicines while incentivizing the development of new, life-saving drugs.

So much bullshit in so few words. As per usual, this is the USTR at its most obnoxious and dismissive of legitimate concerns. First, while technically true that the agreement has not been completed, that doesn't mean that (1) there aren't substantial portions of it that are complete and (2) it does not show the US's (and others') negotiating points and positions on various important issues. To try to dismiss the concerns by arguing it's not complete yet ignores that we finally know what kind of pure crap the USTR is trying to shove down the throats of the American public, which they've worked on for years in secret.

Second is the claim that they are working with "Congress, stakeholders and our TPP negotiating partners." Again, let's define those carefully. First, "working with Congress." No, not really. As we've described, the access Congress has is incredibly limited. The USTR is willing to work with a few members of specific committees but when others, such as Senator Ron Wyden, sought access to the TPP documents they were greatly limited. And Wyden is not just any Senator, but the head of the Senate's Subcommittee on International Trade, Customs and Global Competitiveness.

While he, personally, was able to go to the USTR's offices to see the document, he would only be able to see it alone in a room. He would not be able to make any copies or take any notes. More importantly, he would not be able to bring any of his staffers who have direct technical expertise on the language -- such as the staff director of that committee, who had the necessary security clearance. Think about that for a second. The USTR claims that it works with Congress, and yet it denied access to the document to the staff director of the Senate's subcommittee on international trade. How, exactly, is that "working with Congress"?

As for the "stakeholders," there are different kinds of "stakeholders" here and none of them are the American public. The USTR has Industry Trade Advisory Committees (ITACs). These are representatives of legacy industries. Take a look at the list of industries represented. Where are the current innovators in that list? You won't find them. What you find is a big list of last century's industries -- the legacy players who are more interested in protectionism and blocking competition than in innovation.

Now, let's look specifically at the members of the "Intellectual Property" ITAC. It's all companies or trade groups which represent big, old, legacy players, who have strong interest in protecting their position, not in innovating and disrupting. The RIAA. GE. Johnson and Johnson. Verizon. The Executive Director of the "Coalition for Intellectual Property Rights"? Really? Could they put together a more biased group of people? Doubtful. Who on that list is looking out for the public interest? Who on that list is looking out for innovators? The answer is absolutely no one.

That group is the main "stakeholder" that the USTR is referring to. They get much greater access to the negotiating texts than most of Congress does. Then there's a second class of "stakeholders" which the USTR pretends to involve in the process. These are the "civil society" and public interest groups -- folks like Public Citizen, KEI and EFF -- who have been working hard to raise the concerns of the actual public and society. The USTR doesn't share crap with them. Nothing. Literally nothing. What they do is every so often, if there is time and space permitting, let those groups hold "stakeholder meetings" in which they can present their arguments to the negotiators.

The USTR pretends this is "transparency" and "working with." It is neither. Transparency is about sharing the details of what the USTR is doing in order to get feedback. Every so often "listening" to concerns of people who don't know for sure what's in the document is not transparency, and it's hardly "working with" those stakeholders. Is it really any surprise at all that when the only stakeholders who matter, the IP ITAC, all represent legacy industries that what comes out from the USTR is a bloated piece of crap designed to protect their interests against the rights of the public?

Third, the idea that the end result of this process is designed to "reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values." Again, that's not true. Which "innovative American industries" are actually represented on that list? Biotech, maybe, but the rest are all legacy players holding onto their markets, not creating economic growth. That doesn't promote high paying jobs -- it lets companies block out real innovation, slow down growth and limit jobs.

Fourth, "including by seeking strong and balanced copyright protections." Ha! First off, nothing in the released text suggests any look towards "balanced" copyright protections. It's entirely about locking in the worst of the worst, making an end run around Congress to block any potential future copyright reform that would fix many of the problems of today's copyright law. TPP is a time bomb designed to subvert real copyright reform. Just the fact that the statement itself argues that "strong" copyright protections are necessary for "balance" suggests that the USTR is not only biased, but totally clueless about the state of copyright law today. Over and over and over again, we've seen that real innovation comes from allowing much greater flexibility and user rights -- not in ratcheting up enforcement and restrictions on innovation. Yet that's what the USTR gives us.

Finally, "incentivizing the development of new, life-saving drugs" may be the most sickening, disgusting and dishonest claim of them all. Whoever wrote this statement should look themselves in the mirror and ask themselves, seriously, how many people they personally are helping to die. The patent portions of the TPP will kill many, many people by guaranteeing that they cannot possibly get access to life-saving drugs. The USTR is parroting the blatant lies of the pharmaceutical industry, who falsely argue that they need strong patent protection in order to "incentivize the development of new life-saving drugs." But there is little evidence to support this, beyond the whining complaints of the pharma industry. Most of the actual discoveries today are really done by universities and other research institutes, often funded by federal grants. It's only late in the process that the pharmaceuticals come in and grab the patents and then seek to focus on which drugs will be most profitable -- not which will save the most lives.

This is why the USTR and the rest of the administration fought so hard against revealing this text all along. They know that their arguments are weak excuses for legacy players seeking blatant protectionism and against the public interest and the interest of actual innovation. The former USTR, Ron Kirk, specifically had stated that if the text of the TPP were public it would make it very difficult to approve, and now we know why. Because it's the worst form of political cronyism by the USTR, giving lots of favors to legacy industries at the expense of the public. When the USTR is unwilling to be transparent or have an open and full discussion with the public, it is not representing the interests of the American public. It is trying to pull a fast one on us.

Filed Under: copyright, patents, process, secrecy, stakeholders, tpp, transparency, ustr

TPP IP Chapter Leaked, Confirming It's Worse Than ACTA

from the no-wonder-it-was-kept-secret dept

We've been waiting a long time for a major leak of the secretive TPP agreement, and thanks to Wikileaks, we now finally have it (pdf - embedded below). It's long and heavy going, not least because of all the bracketed alternatives where the negotiators haven't been able to agree on a text yet. Even though the draft is fairly recent -- it's dated 30 August, 2013 -- it contains a huge number of such open issues. Fortunately, KEI has already put together a detailed but easy-to-understand analysis, which I urge you to read in full. Here's the summary:

The document confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards.

Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.

Although many areas are touched by the draft's proposals -- access to life-saving medicines would be curtailed, while the scope of patents would be extended to include surgical methods, for example -- the effects on copyright are particularly significant and troubling:

Collectively, the copyright provisions [in TPP] are designed to extend copyright terms beyond the life plus 50 years found in the Berne Convention, create new exclusive rights, and provide fairly specific instructions as to how copyright is to be managed in the digital environment.

Here are some of the term extensions being proposed:

For the TPP copyright terms, the basics are as follows. The US, Australia, Peru, Singapore and Chile propose a term of life plus 70 years for natural persons. For corporate owned works, the US proposes 95 years exclusive rights, while Australia, Peru, Singapore and Chile propose 70 years for corporate owned works. Mexico wants life plus 100 years for natural persons and 75 years for corporate owned works. For unpublished works, the US wants a term of 120 years.

A more technical issue concerns the use of the "3-step test" to act as a further constraint on possible exceptions to copyright:

In its current form, the TPP space for exceptions is less robust than the space provided in the 2012 WIPO Beijing treaty or the 2013 WIPO Marrakesh treaty, and far worse than the TRIPS Agreement. While this involves complex legal issues, the policy ramifications are fairly straightforward. Should governments have a restrictive standard to judge the space available to fashion exceptions for education, quotations, public affairs, news of the day and the several other "particular" exceptions in the Berne Convention, and more generally, why would any government want to give up its general authority to consider fashioning new exceptions, or to control abuses by right holders?

That's a good example of how TPP is not just trying to change copyright in favor of the maximalists, but also to rig the entire process in favor of strengthening it in the future. Here's another one, where TPP wants to stop any return to copyright systems that require registration -- something that has been suggested as a way of solving some of the problems that arise because of copyright's automatic nature:

The TPP goes beyond the TRIPS agreement in terms of prohibiting the use of formalities for copyright. While the issue of formalities may seem like a settled issue, there is a fair amount of flexibility that will be eliminated by the TPP. At present, it is possible to have requirements for formalities for domestically owned works, and to impose formalities on many types of related rights, including those protected under the Rome Convention. In recent years, copyright policy makers and scholars have begun to reconsider the benefits of the registration of works and other formalities, particularly in light of the extended terms of copyright the massive orphan works problems.

As you would expect, TPP wants strong protection for DRM; but even here, it manages to make things worse than they are:

The copyright section also includes extensive language on technical protection measures, and in particular, the creation of a separate cause of action for breaking technical protection measures. The US wants this separate cause of action to extend even to cases where there is no copyrighted works, such as in cases of public domain materials, or data not protected by copyright.

This would make it illegal to circumvent DRM even if it has been applied to materials that are in the public domain -- effectively, enclosing them once more. Finally, it's worth noting that under the section laying down damages for copyright infringement we read the following:

In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

It's exactly the phrasing that was used in ACTA, and which turned up in the recent free trade agreement between the EU and Singapore. That encapsulates well how TPP builds on ACTA directly, while the other measures discussed above show how it goes well beyond it in many respects.

That's the bad news. The good news is that we now have a very recent draft of what is perhaps the most contentious section of the agreement. In the weeks to come, we're likely to see many detailed analyses exposing just how pernicious this proposed deal will be for the public in the negotiating countries. The hope has to be that once they find out, they will make their feelings known to their political representatives as they did with SOPA and ACTA -- and with the same final result.

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

Filed Under: act, copyright, leaks, patents, secrecy, tpp, trade agreement, transparency, ustr, wikileaks

Australian Government Announces Rare Public Consultation On TPP -- Then Bans All Journalists From Attending

from the something-to-hide? dept

As Techdirt has noted many times, the TPP negotiations -- like ACTA before them and now TAFTA/TTIP -- are distinguished by an almost complete lack of transparency. That makes the rare opportunities offered by governments participating in TPP to find out more, particularly valuable and important. Here's one announced recently by the Australian government:

Dear TPP Stakeholders,

As part of the Australian Government's ongoing public consultation process on the Trans-Pacific Partnership Agreement (TPP) negotiations, the TPP negotiating team will be visiting Sydney on 30 October 2013 to meet with interested members of the public, and business and civil society stakeholders. The meeting will provide an update on the negotiations and an opportunity for further stakeholder input.

As far as it goes, that sounds good. But then something strange happened, as the Pirate Party Australia explained:

Pirate Party Australia has received confirmation that the Department of Foreign Affairs and Trade (DFAT) has rescinded confirmations of attendance for journalists to the Trans-Pacific Partnership Agreement briefing to be held in Sydney at 4pm on 30 October, stating that the meeting is "off-the-record", and that journalists are not welcome.

Not only did the Australian government rescind invitations to journalists, but it also "disappeared" the whole event from its Web site. And it gets even better. Brendan Molloy, Councillor of Pirate Party Australia, is quoted as saying:

"I've already had a freedom of information request have a fee levied with the justification that the TPP isn't in the public interest because there have been few articles written about it. It's pretty hard to write an article about something when you're barred from attending the briefings, and instead offered an arrangement where you're spoonfed Government spin and prevented from hearing the important, unanswered questions being asked by the stakeholders that shine a harsher light on this secretive agreement," concluded Mr Molloy.

In other words, the Australian government refuses to release information about TPP freely, because it says that too few articles have been written about it. And then it bans journalists from attending public meetings, thus making it harder for them to write articles on the subject. Classy.

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

Filed Under: australia, journalism, open, tpp, transparency

Apple Puts Dead Man's Switch About Not Receiving PATRIOT Act Requests In Its Transparency Report

from the well,-look-at-that... dept

It's a bit late, but it appears that Apple has finally caught up with Google, Twitter, Microsoft, Facebook and Yahoo, as tech companies that have issued "transparency reports" about government requests for data (and, in some cases, for takedowns). The first Apple Transparency Report is pretty similar to the transparency reports issued by those other companies. As with the others, the US government only allows "ranges" of information to be released about certain kinds of reports, rather than exact numbers. And, of course, no companies are yet allowed to reveal the details of Section 702 orders -- which are a part of the PRISM program. The various companies are suing the government over that one.

Some people have noted that Apple seems to get fewer requests than some other companies, but that doesn't seem like an apples-to-apples comparison, since Apple's main business is hardware, and its online services are much more limited and targeted than those other companies. But, there is one interesting tidbit in the report. Way down at the end it says the following:

Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.

Now, Section 215 of the PATRIOT Act is the so-called "business records" or "tangible things" clause, which is used to demand all the metadata from the various telcos (who appear to be happy to hand it over without complaint). There's been no indication so far that the government has used 215 on the tech companies. PRISM all relates to Section 702 of the FAA, which the lawsuit mentioned above is about. And, of course, there are reports of the NSA using Executive Order 12333 to justify hacking into servers overseas, without companies even knowing about it. So, you can argue that whether or not any Section 215 orders were served on Apple is somewhat meaningless.

But... it appears that Apple has put this in the report as a sort of dead man's switch, such as Cory Doctorow suggested a few months ago: for companies that have not received any such type of order, if they announce that publicly on a regular basis, if the next time they release a report it's not in there, it becomes clear that they have received such an order, even if they're gagged about it. This is also known as a warrant canary, and was originally suggested for libraries -- who were afraid of Section 215 from the very beginning (early on, it was often referred to as the library clause), as people expected the feds to use it to spy on people's library records.

While given the other programs this may not seem like a big deal, it's nice to see Apple taking this particular step, even if small, to effectively protest against the 215 gag orders.

Filed Under: dead man's switch, patriot act, prism, section 215, section 702, transparency, warrant canary
Companies: apple

The Rogers Doctrine: More Transparency Creates More Privacy Violations, Since You'll Find Out About Them

from the we-deserve-better dept

We recently wrote about the absolutely bizarre claims of Rep. Mike Rogers, the man supposedly in charge of "oversight" of the Intelligence Community, claiming that there can be no privacy violations "if you don't know your privacy is violated." This has resulted in plenty of mocking, including with satire so good many people believed it. It's also been picked up, somewhat, by the bastions of pop culture, Jon Stewart and Stephen Colbert. Stewart covered it on Wednesday's episode of The Daily Show, though it feels like he sort of underplayed the absolute ridiculousness of Rogers' statement. Colbert's version, however, was quite well done, and gets better as you go along (and, yes, I know, that video can't be seen in many regions, but if you can't watch the video, you can see the animated gif version instead: The key lines from Colbert, after playing the tape of Rogers' shocked statement at the idea that anyone's privacy could possibly be violated so long as they didn't know about it, followed by Stephen Vladeck's comment that "if a tree falls in a forest, it makes a noise whether you're there to see it or not," Colbert explains in his usual satirical manner that it all "makes perfect sense if you don't think about it" and also notes that when someone lies to you, "technically they're telling the truth, so long as you never find out it's a lie":

Let's say, instead of falling in the forest, the tree is standing outside your house and I'm hiding in it watching you shower. So far, I'm not violating your privacy. But the second you see me through the window, suddenly I'm the criminal? What about my privacy? I'm trying to masturbate here. Come to think of it, there are all sorts of victimless crimes like this. We know people getting assaulted because they call the police. But I've never heard of anyone calling the cops because they were murdered. Therefore, clearly, no one was killed. By the same logic, folks, I have not insulted Mike Rogers as long as he never hears me say: The reason Mike Rogers uses circular logic is because his head is jammed up his own ass.

Of course, obviously, I do not mean a word of that. I admire what historians will now call "The Rogers' Doctrine": when it comes to privacy vs. security, we can have one of them, as long as we don't know which one it is. That way, we can maintain our constitutional rights. Or, if they do take away our rights, just don't let us find out. That way, we'll still have them.

Meanwhile, over at Slate, Will Oremus has also written about Rogers' comment, and also come up with a name for it. He calls it "Rogers' Paradox," noting that it's a variation on the historical concept of "what you don't know can't hurt you," and how this is "an age-old excuse for people in power to trample on the rights of those without it."

But, Oremus makes an even more pertinent point. If Rogers' statement is accurate (and it's not), then it would actually mean that greater transparency itself would harm people's privacy because they'd find out about it. Think about that for a second. Under the logic of Mike Rogers' twisted mind, the more transparency there is about privacy violations, the more those non-privacy violations become privacy violations -- and thus he must fight against such transparency at all costs to protect our privacy.

And this is a guy in power.

Filed Under: mike rogers, nsa, nsa surveillance, privacy, transparency

Apparently James Clapper And The NSA Don't See Eye-To-Eye On Transparency

from the that-could-get-interesting dept

For the most part, following the fallout from the NSA surveillance leaks, the Director of National Intelligence, James Clapper, and the head of the NSA, Keith Alexander, have seemed almost interchangeable. While Clapper technically ranks above Alexander in the administration pecking order, both have basically presented the same (dubious) arguments in favor of the NSA's activities, and their statements have been in such lockstep that you could exchange quotes from one for the other without noticing much, if any, difference. However, in a recent Washington Post profile of Clapper, it appears that there may at least be some cracking of the facade of unity. While it's not a major part of the Clapper profile, the article, by David Ignatius, does note that when that important 2011 FISA court ruling was declassified a couple of months ago, the NSA wanted to redact large parts of the decision, and Clapper actually pushed back, demanding greater transparency, before having his own top lawyer redo the redactions, so that much less ended up being redacted:

One example is Clapper’s pressure on the NSA to disclose more about its surveillance programs. The NSA initially wanted to “redact” (a fancy word for censor) far more of a 2011 ruling by the Foreign Intelligence Surveillance Court that the agency had engaged in illegally broad surveillance. Clapper thought NSA lawyers were suppressing too much, so he instructed his general counsel, Robert Litt, to go back through the document and make public more information. Clapper ignored NSA and Justice Department protests, including to the White House, and backed Litt’s less-redacted version.

Of course, this story leaves out the part about how pretty much everyone, including Clapper, initially fought against having any part of this decision released until they were forced to do so by the EFF in a lawsuit.

That said, it's still interesting to see that, when it comes to that situation, Clapper is at least willing to go against the NSA behind closed doors, even if he's in lock-step with them publicly.

Filed Under: james clapper, nsa, nsa surveillance, robert litt, transparency