My name is Glyn Moody, and I am a journalist who has written over 40 columns on TTIP (available at http://www.computerworlduk.com/blogs/open-enterprise/ttip-updates--the-glyn-moody-blogs-3569438/.) My comments are based on following trade negotiations closely for many years, including those for TPP, TISA and ACTA. Please find below my responses to the consultation's questions.1. Please give us your views on what concrete measures the Commission could take to make the TTIP negotiations more transparent. Where, specifically, do you see room for improvement?
There is one one very simple measure that would make the TTIP negotiations highly transparent without limiting the European Commission's ability to keep its negotiating strategy secret - something it claims is necessary.This would be to make all EU documents and proposals public as soon as they are tabled.There can be no objection that this will reveal the Commission's strategy to the US side, since the latter can, by definition, see all documents once they are on the table. Releasing them to the public would therefore reveal nothing that the US negotiators did not already know. The US cannot object, since it only concerns the EU proposals, and reveals nothing of the US position (not that this should be secret.) In short, no one could possibly object, unless, of course, the real purpose of negotiations being held behind closed doors is precisely to keep the public ignorant of what is nominally being carried out in their name.
2. Please provide examples of best practice that you have encountered in this area.Negotiations at WIPO go far beyond simply making tabled documents available, as this article explains in detail (http://infojustice.org/archives/30027). Here are the main points:"The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process.""WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. ""WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike.""Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement."This clearly shows how complete transparency is possible, and that negotiations can not only proceed under these conditions, but reach successful conclusions.
3. Please explain how, in your view, greater transparency might affect the outcome of the negotiations.
Real transparency - for example, by publishing all tabled documents - would have a profoundly important impact, since it would offer hope that any final agreement would enjoy public support. Without transparency, TTIP will simply be a secret deal among insiders, imposed from above, rather than any legitimate instrument of democracy.
31 October 2014
The EU Ombudsman is running a consultation on how to improve the transparency of the TTIP negotiations. This shouldn't be hard, since there is currently vanishingly small openness about these secret talks. However, to keep things simple, I have just one very easy suggestion, as my response to the consultation below explains:
29 July 2014
These "non-tariff barriers" - NTBs - are what you and I call health and safety regulations, environmental protection, labour laws etc. They are all things that make life a more pleasant place - especially in Europe, where they are particularly strong; but they are also things that decrease the profits of companies that must obey them. TTIP is about removing as many of these as possible, so as to boost corporate profits.
Of course, that's not how the European Commission can frame things. Indeed, after the public began to wake up to what TTIP really meant, the commissioner responsible for leading the TTIP negotiations, Karel De Gucht, was forced to make high-profile statements denying that the agreement would lower standards:
Let me be clear on this very important point: we are not lowering standards in TTIP. Our standards on consumer protection, on the environment, on data protection and on food are not up for negotiation. There is no “give and take” on standards in TTIP.
Simple logic tells us that this can't possibly be true. If two completely different regulatory systems are to be brought together - the avowed aim of TTIP - there are only three possibilities. Either the side with the higher standards levels down; the side with the lower standards levels up; or there is mutual recognition of each other's standards. The US has clearly stated that it is not prepared to level up - it won't accept EU bans on chlorine-washed chickens, hormone beef or GMOs.
Mutual recognition, although apparently different, is in fact identical to levelling down: if both regulations are acceptable, manufacturers working to the higher set will be at a disadvantage commercially. They will therefore either relocate their factories to the country with the lower standards, which are cheaper to implement, or lobby for the higher standards to be levelled down, threatening either to leave the country, or shut down. Politicians always give in to this kind of blackmail, so EU standards would inevitably be lowered to those of the US as a result of mutual recognition.
But it has become increasingly clear that there is another way for the European Commission to circumvent its own promises that TTIP will not lower standards. The trick here is that the European Commission will lower standards *before* TTIP; so technically speaking it is not TTIP that brings about that dilution - it occurred "independently". Thus the Commission will be able to put its hand on its heart and swear blind that it kept its word not to sell out EU standards in TTIP, while at the same time changing the regulatory context in such a way that the US will be able to export things that are currently banned by strict EU legislations.
We're seeing more and more examples of this. Here, for example, is how new GMO regulations will allow US companies to bring in GM food:
Genetically modified crops could be grown in the UK from next year after the EU ministers relaxed laws on the controversial farming method.
Maize that has been engineered to resist weedkiller is the first to be approved but all commercial GM crops will not be given the green light for another 10 years.
Owen Patterson, the Environment Secretary, has long supported the introduction of GM crops in the UK and voted in favour of the changes on Thursday.
He said: “This is a real step forward in unblocking the dysfunctional EU process for approving GM crops, which is currently letting down our farmers and stopping scientific development.
Here's how the EU's Fuel Quality Directive, designed to discourage the use of highly-polluting carbon fuels, is being drastically weakened [.pdf]:
Since its inception in 2009, the Fuel Quality Directive (FQD), a European Union regulation aimed at reducing the climate impact of transport fuels, has been attacked by powerful lobby interests that do not want the EU to take action to curtail the use of particularly greenhouse gas intensive fossil fuels.
these attempts to weaken this landmark climate policy seem to have been successful. If recent media reports are correct, the European Commission has decided to significantly weaken the FQD and align its regulatory standards with the wishes of the oil industry, the US trade negotiators [for TTIP] and the Canadian government. Compared to a previous proposal from 2011, it would be considerably less effective in cleaning up Europe’s transport fuels and preventing the most climate polluting fuels, including tar sands, from entering Europe.
Most recently, we have learned that the European Commission is preparing to allow endocrine disruptors in pesticides - another key demand from the US side in TTIP. Unfortunately, the source for this information, Inside US Trade, is behind a paywall, so I can't give a link, but will just quote a couple of key passages:
One of the options proposed by the commission in a June 17 "roadmap" is to shift from the current EU approach of banning the use of all endocrine disruptors in pesticides toward a model that could allow them to be used as long as certain steps are taken to mitigate the risk.
This risk assessment-based model is favored by the U.S. and EU pesticide industries and is the approach employed under the U.S. Environmental Protection Agency's "Endocrine Disruptor Screening Program." Such a model seeks to evaluate both whether a hazard exists and if it can be mitigated by limiting exposure, in order to allow the marketing of an otherwise dangerous product.
As you can see, this amounts to abandoning the EU's Precautionary Principle, and adopting the completely different risk-based approach of the US. Aside from the fact that this shows that the European Commission's promises that standards would not fall, that the EU would not be forced to adopt US approaches, and that public health in Europe would always be safeguarded, were worthless, this also disregards the EU's Treaty of Lisbon, which explicitly states:
Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
What's particularly interesting about the latest move by the European Commission is that the industry sources in the article quoted above point out that it represents a move to a "science-based" approach, something they have been demanding (note, too, that Owen Paterson also spoke of "scientific development" in the passage quoted above.)
This is part of consistent campaign to paint the Precautionary Principle as "unscientific". In fact, this reframing is precisely what I predicted would happen a year ago. The key point is that "science" in the abstract does not exist: there is a continuum of good science and bad science - where the latter often includes experiments carried out by corporate scientists who miraculously produce results that match their paymaster's desires.
It's not just me saying this. Yesterday the following article appeared in the Guardian on the subject of pesticide research - the area that the European Commission wants to overhaul radically, moving towards a "science-based" approach:
Criticial future research on the plight of bees risks being tainted by corporate funding, according to a report from MPs published on Monday. Pollinators play a vital role in fertilising three-quarters of all food crops but have declined due to loss of habitat, disease and pesticide use. New scientific research forms a key part of the government’s plan to boost pollinators but will be funded by pesticide manufacturers.
That is, as I pointed out, when companies pay for research, they tend to get the answers they want.
“When it comes to research on pesticides, the Department of Environment, Food and Rural Affairs (Defra) is content to let the manufacturers fund the work,” said EAC chair Joan Walley. “This testifies to a loss of environmental protection capacity in the department responsible for it. If the research is to command public confidence, independent controls need to be maintained at every step. Unlike other research funded by pesticide companies, these studies also need to be peer-reviewed and published in full”.
This again is something that I advocated last year. If companies want us to take their results seriously - and in principle I don't have problem with that, provide the science is sound and independent - then they must publish their findings in peer-reviewed journals and, crucially, publish *all* of their results as open data, for anyone to check and explore further. If they won't do that, we will know that they have something to hide.
In the meanwhile, expect the European Commission to start invoking "science-based" approaches to policy more and more, and that these strangely always mean that the European Union should lower its standards to those of the US, which already uses this "tainted" approach.
But however the Commission wants to package this massive shift, and whatever lipstick it puts on this particular pig (sorry, pigs, nothing personal), this is a fundamental betrayal at the very deepest level. It is truly disgraceful - not to mention ungrateful - that at every turn the European Commission seems to prefer to serve US corporations rather than the European public that pays the Commissioners' not-inconsiderable salaries. It's another reason why the whole of TTIP - not just the already terminal ISDS - must be rejected.
26 July 2014
European Court Of Human Rights Fast-tracks Case Against GCHQ; More Organizations Launch Legal Challenges To UK Spying
Back in December, we wrote about a legal action that a group of digital rights activists had brought against GCHQ, alleging that the UK's mass online surveillance programs have breached the privacy of tens of millions of people across the UK and Europe. In an unexpected turn of events, the court involved -- the European Court of Human Rights -- has put the case in the fast lane:
The battle over online privacy, and how personal data should be treated as it moves over the Internet, is being fought between the US and EU points of view in multiple ways. There is the EU's Data Protection Regulation, currently grinding its way through the legislative process; there are the discussions about the NSA's spying program, and how it impacts Europeans; and finally, there are various court cases involving US companies and the personal data of EU citizens. One of these is in the UK, where The Telegraph reports that an important decision has been handed down:
Back in May last year, we wrote about how the European Commission's "Licences for Europe" initiative had turned into a fiasco, with public interest groups and open access supporters pulling out in protest at the way it was being conducted. The central problem was the Commission's attempt to force everything into the straitjacket of copyright licensing, refusing to allow alternative approaches to be discussed. Fortunately, its public consultation on copyright, launched back in December, and closing soon, does not make this mistake, and is broad in scope:
One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well -- something that the copyright industry seems quite untroubled by. Here's an example from Europe involving Nintendo (pdf):
Reading Techdirt, it's all-too-easy to get the impression that copyright is an utter disaster for the public -- with current laws abused by governments, companies and trolls alike, and international agreements like TPP aiming to make the situation worse. But as Andres Guadamuz points out on his Technollama blog, things aren't quite as bleak as they sometimes seem:
Even though Microsoft is no longer the dominant player or pacesetter in the computer industry -- those roles are shared by Google and Apple these days -- it still does interesting work through its Microsoft Research arm. Here's some welcome news from the latter: it's moving to open access for its researchers' publications.
In Response To Growing Protests, EU Pulls Corporate Sovereignty Chapter From TAFTA/TTIP To Allow For Public Consultation
Here on Techdirt, we've been writing about the dangers of corporate sovereignty for a while. In recent months, more and more people and organizations have pointed out that the plan to include an investor-state dispute settlement (ISDS) in the TAFTA/TTIP agreement currently being negotiated is fraught with dangers -- and also completely unnecessary given the fair and efficient legal systems that exist on both sides of the Atlantic. It seems that this chorus of disapproval has finally been noticed, in Brussels at least:
Here on Techdirt we've written a number of times about India's efforts to provide key drugs to its population at prices that they can afford, and how its approach is beginning to spread to other countries. That's a big worry for Western pharma companies, which see their business model of selling medicines at high prices threatened by newly-assertive nations. The latest to join that club is South Africa.
Now That The NSA Has Made It The Norm, Total Surveillance During The Sochi Olympic Games Is No Longer Noteworthy
In addition to being an opportunity to stretch copyright and trademark rules way beyond the law, over the years, the Olympics has also become an occasion when the feeble "because terrorism" excuse is deployed to justify all kinds of additional restrictions on personal freedoms. It will come as no surprise to learn that the Winter Olympics in Sochi, Vladimir Putin's pet project, will continue the tradition:
Monsanto is best-known for its controversial use of genetically-modified organisms, and less well-known for being involved in the story of the defoliant Agent Orange (the company's long and involved story is well told in the book and film "The World According to Monsanto", by Marie-Monique Robin.) Its shadow also looms large over the current TPP talks: the USTR's Chief Agricultural Negotiator is Islam A. Siddiqui, a former lobbyist for Monsanto. But it would seem that the company is starting to explore new fields, so to speak; as Salon reports in a fascinating and important post, Monsanto is going digital:
Techdirt has already noted how the NSA's massive spying programs around the world are costing US companies money through lost business -- and are likely to cost them even more in the future. But it seems that the fallout is even wider, as this story from The Voice of Russia makes clear:
Revelations About Massive UK Police Corruption Shows Why We Cannot -- And Must Not -- Trust The Spies
As Mike reported recently, the NSA has presented no credible evidence that its bulk metadata collection is stopping terrorist attacks, or keeping people safe. Instead, the argument in support of the secret activities of the NSA and its friends abroad has become essentially: "Trust us, we really have your best interests at heart." But that raises the question: Can we really do that? New revelations from The Independent newspaper about massive and thorough-going corruption of the UK police and judiciary a decade ago show that we can't:
Techdirt has already examined the issue of corporate sovereignty many times over the past year, as it has emerged as one of the most problematic areas of both TPP and TAFTA/TTIP. A fine article by Simon Lester of the Cato Institute examines a hidden assumption in these negotiations: that an investor-state dispute settlement (ISDS) mechanism is needed at all.
Like many other countries, India has been steadily extending its national surveillance capabilities. We wrote about its main Central Monitoring System (CMS) back in May last year, with more details in July. In news that shocked no one, we discovered in September that illegal surveillance is already taking place. And now, via The Economic Times, we learn that India has built another, completely independent system for spying on its citizens:
Does The Fast Track Authority Bill Guarantee That Corporate Sovereignty Will Be One-Sided And Unfair?
Yesterday, Mike reported on the introduction of the "fast track authority" bill in the Senate, and pointed out some of its most troubling aspects. But it's a long document -- over 100 pages -- and hidden away within it are some other areas that raise important questions. Take, for example, Section 8, which concerns sovereignty:
EU's Advocate-General Says Dutch Allowing Unauthorized Downloads Is Incompatible With European Copyright Law
Back in 2012, Ben Zevenbergen wrote a long piece exploring a complicated Dutch case that had been referred to the Court of Justice of the European Union, the EU's highest court. It concerned the home-copying exception of European copyright legislation, and hinged on the question of whether the Dutch collecting society could charge for the "losses" that result from people downloading both authorized and unauthorized uploads. That distinction needs to be made, since in the Netherlands downloading copyright material is permitted, but uploading it is not. Manufacturers of blank media claimed that they should only have to pay a lower copyright levy that covered just the downloads of legally-uploaded materials.
The very best solutions not only come up with a brilliant answer to an important problem, but often manage to help address other issues too. Here's one that seems to fit that bill, pointed out to us by Izabella Kaminska. It's called Plastic Bank, and its core idea is to address the growing problem of plastic waste on the land and in the world's oceans and rivers, especially in poorer countries. But along the way, it might achieve much more. Here's the idea:
One of the most contentious aspects of the NSA's surveillance is the central belief by General Alexander and presumably many others at the agency that it must "collect it all" in order to protect the public. To stand a chance of overturning that policy, those against this dragnet approach need to come up with a realistic alternative. An interesting article by Matt Blaze in the Guardian offers a suggestion in this regard that takes as its starting point the recent leaks in Der Spiegel about the extensive spying capabilities of the NSA's Tailored Access Operations (TAO). As Blaze points out:
In Der Spiegel's recent revelations about the far-reaching nature of the NSA's spykit, it mentions several US companies, Samsung from South Korea, and one from China -- Huawei. Like the others, Huawei denied any knowledge of the modifications to its products that Der Spiegel claims are used by the NSA to break into systems. This isn't the first time that the finger has been pointed at Huawei. Some years back, Huawei was accused of facilitating spying for the Chinese government, but after an 18-month investigation, no evidence was found of this. That fact allowed John Suffolk, Global Head of Cyber Security for Huawei and the former UK Government CIO, to enjoy the irony of Snowden's leaks about backdoors in US products:
One of the bitter lessons we learned from Snowden's leaks is that the Internet has been compromised by the NSA (with some help from GCHQ) at just about every level, from our personal software and hardware, through ISPs to major online services. That has prompted some in the Internet engineering community to begin thinking about how to put back as much of the lost security as possible. But even if that's feasible, it's clearly going to take many years to make major changes to something as big and complex as the Net.
Techdirt has been tracking the sorry saga of Canada's assault on free speech for a while, as it first muzzled scientists and librarians, and then clamped down on the public expressing its views. Now, it seems, the Canadian government of Stephen Harper is attacking knowledge by dismantling key scientific collections, as this post on The Tyee reports:
As Techdirt has noted many times, much of the debate around filesharing is driven by dogma rather than data. That's beginning to change, although there has been a natural tendency to concentrate on economic issues: that is, whether filesharing causes sales of music and films to drop or not. But copyright is not fundamentally about making money: it's about encouraging creativity. So arguably a more important question to ask is: does filesharing harm or help creativity? That's precisely what an interesting new paper entitiled "Empirical Copyright: A Case Study of File Sharing and Music Output," written by Glynn S. Lunney, Professor of Law at the Tulane University School of Law in New Orleans, seeks to explore (found via TorrentFreak.) Here's the background: