29 July 2014

The European Commission's Great TTIP Betrayal

When the European Commission was laying the foundations for the Transatlantic Trade and Investment Partnership - TTIP, also known as TAFTA by analogy with NAFTA - it was doubtless hoping that the public would ignore it, just as it had ignored countless other boring trade agreements. But of course TTIP is not principally a trade agreement: it aims to go far beyond "merely" liberalising trade by attacking "behind the border" barriers.

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.

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

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

On Techdirt.

British Judge Rules Google Can Be Sued In UK Over Privacy Case

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

On Techdirt.

A Rare Invitation To Help Shape European Copyright Law

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: 

On Techdirt.

Europe's Highest Court Says DRM Circumvention May Be Lawful In Certain Circumstances

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): 

On Techdirt.

Has The Copyright War Been Won -- And If So, Are We About To Lose It Again?

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

On Techdirt.

Microsoft Goes Open Access; When Will It Go Open Source?

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

On Techdirt.

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: 

On Techdirt.

Big Pharma Accused Of Patent Plot Of 'Satanic Magnitude' By South African Health Minister

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. 

On Techdirt.

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

On Techdirt.

Will Monsanto Become The NSA Of Agriculture?

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

On Techdirt.

NSA Spying Fallout Hits French Satellite Deal

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: 

On Techdirt.

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: 

On Techdirt.

Why Exactly Do We Need To 'Protect' US And EU Foreign Investments Through TAFTA/TTIP Anyway?

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. 

On Techdirt.

India Developing Additional National Surveillance System; US Has No Moral High Ground To Protest

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

On Techdirt.

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: 

On Techdirt.

Latest Twist On DRM Of Physical Products: Machines Locked Down By Geolocation

Despite overwhelming evidence that the public hates DRM, companies persist in coming up with new ways to impose it in an effort to control how their products are used. Here's the latest twist, pointed out to us by @dozykraut

On Techdirt.

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. 

On Techdirt.

Harvesting Waste Plastic In Emerging Economies As A Currency, To Reduce Pollution And Improve Lives

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: 

On Techdirt.

Could 'Tailored Access Operations' Be An Alternative To 'Collect It All'?

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: 

On Techdirt.

Huawei's Global Head Of Cyber Security Wants The Government 'To Have As Much Data As Possible'

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

On Techdirt.

Wireless Mesh Networks, The NSA, And Re-building The Internet

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. 

On Techdirt.

After Muzzling Scientists, Canadian Government Now Moves On To Book Burnings

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: 

On Techdirt.

Study: File Sharing Leads To More, Not Fewer, Musical Hits Being Written

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: 

On Techdirt.

25 July 2014

Russian Authorities Threaten To Block CloudFlare And Other Key Infrastructural Sites

This is getting boring. Every time Techdirt writes about Russian Internet blocking, it's along the lines of: "just when we thought it couldn't get any worse, it does." Here's another one. As a post from TorrentFreak explains, Russia's telecoms regulator Roskomnadzor maintains a blacklist of sites that allegedly promote the usual bad stuff -- child pornography, criminal activities, suicide etc. In news that will surprise no one that understands how the Internet works, Roskomnadzor is finding it hard to enforce those blocks on material held on servers located outside Russia

On Techdirt.

Weird California Incident Last Year Points To The Real Threat To The Power Grid (Hint: It's Not Cyberattacks)

After 20 Years, It's Clear NAFTA Has Failed To Deliver Promised Benefits; So Why Trust TPP, TTIP Will Be Better?

Both TPP and TAFTA/TTIP are based on the premise that by boosting trade and investment, general prosperity will increase too. And yet, despite the huge scale of the plans, and their major potential knock-on effects on the lives of billions of people, precious little evidence has been offered to justify that basic assumption. To its credit, the European Commission has at least produced a report (pdf) on the possible gains. But as I've analyzed elsewhere, the most optimistic outcome is only tangentially about increased trade, and requires a harmonization of two fundamentally incompatible regulatory systems through massive deregulation on both sides of the Atlantic. In any case, the much-quoted figures are simply the output of econometric models, which may or may not be valid, and require extrapolation to the rather distant 2027, by which time the world could be a very different place. 

On Techdirt.

How To Solve The Piracy Problem: Give Everyone A Basic Income For Doing Nothing

Here on Techdirt we often discuss economics in the absence of scarcity -- how the ability to make any number of digital copies for vanishingly small cost creates new business opportunities for creators. But could a kind of abundance exist in the physical world too? That's the question raised in a fascinating post on Salon about a vote that will take place in Switzerland: 

On Techdirt.

Italy's Communications Watchdog Assigns Itself Extrajudicial Powers To Order ISPs To Stop Copyright Infringement

The last six months have seen a fierce debate in Italy over a proposal by the Italian communications watchdog Agcom to grant itself wide-ranging powers to address alleged copyright infringement online. Here's how The Center for Internet and Society at Stanford Law School described them

On Techdirt.

European Commission Admits It Plans To Put 'Corporate Christmas List' Of IP Demands Into TAFTA/TTIP

A few months ago, we quoted the EU trade commissioner Karel De Gucht, who is responsible for handling the TAFTA/TTIP negotiations on the European side, as saying: 

On Techdirt.

Open Source Genomics

There's a revolution underway. It's digital, but not in the computing sector. I'm referring to the world of genomics, which deals with the data that resides inside all living things: DNA. As most people know, DNA uses four chemical compounds - adenine, cytosine, guanine and thymine - to encode various structures, most notably proteins, which are represented by stretches of DNA called genes. 

On Open Enterprise blog.


Even the European Commission admits that TAFTA/TTIP is not, primarily, a trade agreeement, because the trade barriers between the EU and the US are already so low that removing them will add little to the EU economy. According to a study [.pdf] put together for the European Commission, the uplift in 2027 would be only 24 billion euros on a GDP that was already 12,900 billion euros in 2012; that compares with the most favourable outcome touted by the report, which is 119 billion euros GDP uplift in 2027. However, that is predicated on massive deregulation - although the European Commission prefers to use the euphemism of "removing non-tariff barriers."

On Open Enterprise blog.

AllSeen's Internet of Things: All-Seeing Too?

A year ago, I wrote a piece about cloud computing's dark secret: that using it in Europe was probably equivalent to making all your files readily available to the US government. And that was before the Snowden revelations confirmed that this was no mere theoretical possibility. I'm not claiming any amazing prescience here: I certainly had no idea of the scale of what was going on, as I've explained in a series of posts on the NSA spying programme. But I can claim a deep and abiding unease about cloud computing, which is why I never jumped on that particular bandwagon, and have written relatively little about it on this blog. 

On Open Enterprise blog.
A year ago, I wrote a piece about cloud computing's dark secret: that using it in Europe was probably equivalent to making all your files readily available to the US government. And that was before the Snowden revelations confirmed that this was no mere theoretical possibility. I'm not claiming any amazing prescience here: I certainly had no idea of the scale of what was going on, as I've explained in a series of posts on the NSA spying programme. But I can claim a deep and abiding unease about cloud computing, which is why I never jumped on that particular bandwagon, and have written relatively little about it on this blog. - See more at: http://blogs.computerworlduk.com/open-enterprise/2013/12/allseens-internet-of-things-all-seeing-too/index.htm#sthash.7v5Wi5d5.dpuf

Linux's New Game: the Internet of Things

Last week I wrote about my recent talk on open access in which I pointed out that Linux has become the undisputed leader across huge swathes of computing. One area where that's not true is on the desktop, of course, and I fear it's unlikely to change, because of network effects: while there are lots of people using Windows and Office, and swapping data, it will be very hard to get many of them to switch. So that raises an interesting question: given Linux's success, where does it go next?

On Open Enterprise blog.
Last week I wrote about my recent talk on open access in which I pointed out that Linux has become the undisputed leader across huge swathes of computing. One area where that's not true is on the desktop, of course, and I fear it's unlikely to change, because of network effects: while there are lots of people using Windows and Office, and swapping data, it will be very hard to get many of them to switch. So that raises an interesting question: given Linux's success, where does it go next? - See more at: http://blogs.computerworlduk.com/open-enterprise/2013/12/linuxs-new-game-the-internet-of-things/index.htm#sthash.vHBPWzjv.dpuf

Why Mozilla Was Right: GCHQ & NSA Track Cookies

During 2013, I've written a few articles about Mozilla's attempt to give users greater control over the cookies placed on their systems, and how the European arm of the Interactive Advertising Bureau (IAB) tried to paint this as Mozilla "undermining the openness", or "hijacking" the Internet because it dared to stand up for us in this way. That makes this latest revelation from the Snowden treasure-trove of documents, published in the Washington Post, rather important:

On Open Enterprise blog. 

Where Did ODF Disappear to? (And How to Fix it)

Readers with good memories may remember various key fights over the years that were largely about ODF and OOXML. The first round culminated in the extraordinarily shoddy fast-tracking of OOXML through the ISO standards process. Then we had a big battle over open standards in general, which also involved ODF and OOXML, where the UK government performed a dizzying series of U-turns

On Open Enterprise blog.

Open Access: Looking Back, Looking Forwards

A couple of weeks ago, I spoke at a conference celebrating the tenth anniversary of the Berlin declaration on open access. More formally, the "Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities" is one of three seminal formulations of the open access idea: the other two are the Bethesda Statement (2003) and the original Budapest Open Access Initiative (2002).

On Open Enterprise blog.


In my last TTIP update, I wrote about a fascinating document that revealed the European Commission's PR strategy for handling TAFTA/TTIP. It was already possible to detect there a growing sense of panic among the Commission - a fear that they were losing control of the "narrative", and that remedial action was needed.

On Open Enterprise blog.

TTIP Updates - The Glyn Moody blogs

At the start of 2012 I began a series of posts about the Anti-Counterfeiting Trade Agreement - ACTA. These took the form of updates on how ACTA was developing. I did this because I had a sense of how quickly things were moving, and how complicated the issues were, and I wanted to try to track those as they happened.

To make that easier, Computerworld UK brought those updates together on a single page. It turned out to be an extremely exciting ride as opposition to ACTA grew across Europe, culminating in the rejection by the European Parliament on 4 July last year.

However, one thing we have learned is that those behind unbalanced laws like SOPA and treaties like ACTA, never give up. If they fail with one, they just try again with another. And so it turns out in the wake of ACTA's demise. We are now witnessing exactly the same secretive approach being applied to TTIP - the Transatlantic Trade and Investment Partnership - originally known as TAFTA, the Transatlantic Free Trade Agreement.

Although TTIP only began a few months ago, it is becoming increasingly controversial as more people begin to realise what is at stake. As I explain in several updates below, one of the key problems is the presence of "investor-state dispute settlement" - ISDS - which I predict will prove to be the most contentious part of TTIP.

Indeed, I think it is likely that ISDS will generate so much resistance among the European public that ultimately it will be removed from TTIP completely in order to give other parts more chance of being passed by the European Parliament, which must approve the agreement once it has been negotiated. What follows is my attempt to track the twists and turns of the journey to that final, fateful vote.

On Open Enterprise blog.

De-fanging Software Patents For GNU GPL'd Code

A theme that has re-appeared on this blog many times over the years is that of software patents. As I've noted before, they are perhaps the biggest single threat to free software, especially since the decline of Microsoft. Indeed, it's not hard to see software patent lawsuits being filed by Microsoft in the last, desperate stage of that decline in order to inflict the maximum damage on open source.

On Open Enterprise blog.

European Commissioner Claims 'Nothing Secret' About TAFTA/TTIP, Tries To Defend Corporate Sovereignty

After lurking in the shadows for a few months, the mega transatlantic trade deal TAFTA/TTIP is starting to hit the mainstream media. Here, for example, is an excellent article by George Monbiot in the Guardian, which rightly singles out corporate sovereignty as a key threat

On Techdirt.

Bloomberg News Pays Reporters More If They Move Markets

It's become quite common to pay online writers more if their stories cause surges in traffic for the site. It has recently emerged that Bloomberg News has taken this idea much further, as reported by Business Insider: 

On Techdirt.

Why Tribunals Imposing Corporate Sovereignty Are Even More Dangerous Than We Thought

Back in October, we introduced the term "corporate sovereignty" as an alternative to the standard but misleading phrase "investor-state dispute settlement" (ISDS) that is generally used. We noted that perhaps the worst manifestation of corporate sovereignty so far can be seen in Ecuador, where one of the secret tribunals used in these cases had ordered the Ecuadorean government to place Chevron above the country's constitution. 

On Techdirt.

Copyright Strikes Again: No Online Access To UK Internet Archive

Last week we wrote about how Norway had come up with a way to provide online access to all books in Norwegian, including the most recent ones, available to anyone in the country. Here, by contrast, is how not to do it, courtesy of publishers in the UK: 

On Techdirt.

CERN Announces Nearly All High-Energy Physics Articles Will Switch To Open Access -- The Largest-Ever OA Initiative

One of the key insights driving open access is that if all the money currently paid by libraries and other institutions for subscriptions to academic journals was instead used to pay processing charges -- effectively, the cost of publishing -- all articles could be made freely available online to everyone. Unfortunately, getting from one system to the other has proved hard, since it requires many libraries to drop subscriptions and pool their resources so that enough top-quality journals can be published on an open-access basis. That's what makes this news from CERN, the European Organization for Nuclear Research, such a milestone: 

On Techdirt.

59 Bootleg Beatles Tracks Released Officially -- For All The Wrong Reasons

Back in January, Sony released the 'Bob Dylan Copyright Collection Volume'. As its name shamelessly proclaims, that was purely to take advantage of an EU law to extend the copyright term on recordings from 50 to 70 years there. Copyright is supposed to offer an incentive to create new works, so extending it after they are written is clearly nonsensical. Similarly, the idea that musicians will suddenly be inspired to write more new songs because of the extra 20 years of protection that only kicks in 50 years from when the song is recorded is just silly. 

On Techdirt.

New Creative Commons Licenses Released For Intergovernmental Organizations

Even though Creative Commons licenses have only been in existence for just over a decade, it's now hard to imagine the online world without them. The ability they offer to modify or even cancel copyright's monopoly has led to all kinds of innovation, and given that success (as well as one or two failures), you might think there's no need for any more CC licenses. Creative Commons begs to differ

On Techdirt.

As Yet Another Free Trade Agreement Fails To Deliver, Why Should People Believe USTR's Claims About TPP's Huge Benefits?

As the US applies more and more pressure to the other nations taking part in the secret TPP negotiations in an attempt to get them to accept its demands, one issue that is starting to be raised is the central one of benefits. Given the sacrifices the USTR is demanding from other countries in order to strike a deal, people in affected countries are rightly questioning what exactly they will get in return. The growing doubts about the value of TPP are presumably why at this late stage the USTR has just released a document touting its "economic benefits". There are two things worth noting about this. 

On Techdirt.

Data Retention Directive Incompatible With Fundamental Rights According To EU Court Of Justice's Advocate General

Almost exactly a year ago, we wrote about two important cases before Europe's highest court, the Court of Justice of the European Union (ECJ). They both involved the European Union's Data Retention Directive, which obliges telecoms companies to retain metadata about their customers -- now an even more contentious issue in the wake of Edward Snowden's leaks. One case was from Ireland, brought by Digital Rights Ireland, which needs donations to carry on its great work, and the other from the Austrian digital rights group AKVorrat (which probably also needs support.) 

On Techdirt.

Legal Challenges To Spying Mount In UK

It's taken a while for Europeans to recover from the discovery that they are being spied upon by the NSA (with some help from its friends at GCHQ and elsewhere) pretty much everywhere online and all the time, but finally the legal fightback is beginning to gather pace, at least in the UK. Things got moving in October, with a case filed at the European Court of Human Rights

On Techdirt.

Norway To Digitize All Norwegian Books, Allowing Domestic IP Addresses To Read All Of Them, Irrespective Of Copyright Status

Bringing Transparency Back To The Patent System With 'Innovation Cartography'

As Techdirt has noted many times, the patent system is broken, and in various ways. One major problem is the way it inhibits innovation, rather than promoting it, as its supporters usually claim. Here's why: 

On Techdirt.

How Not To Deal With Plagiarism

We've had a few posts about plagiarism here on Techdirt, and how it differs from copyright infringement. One important question that needs to be considered is: what's the correct way to acknowledge and correct plagiarism when it is discovered? Probably not like this, in a case pointed out to us by Ivan Oransky via Jonathan Eisen, and reported by Retraction Watch: 

On Techdirt.

South Korean Spy Agency Allegedly Tried To Influence Presidential Vote - By Posting 1.2 Million Tweets

Twitter is still a young medium, and it's interesting to see yet more uses being found for it. Here's a rather dubious one from South Korea

On Techdirt.

24 July 2014

European Commission Desperately Tries To Justify Inclusion Of Corporate Sovereignty In TAFTA/TTIP; Fails Dismally

Techdirt has been writing about corporate sovereignty (also known as investor-state dispute settlement -- ISDS) for a year now. Back in April, we noted that it was likely to be part of the TAFTA/TTIP negotiations, which were just about to start. Since then, more and more people have woken up to its dangers, and called for corporate sovereignty to be dropped from the negotiations. 

On Techdirt.

UK Court Rules That Software Functionality Is Not Subject To Copyright

Yesterday, Mike wrote about some worrying indications that the US Appeals Court may be considering overturning a ruling that APIs aren't covered by copyright. Happily, over in Europe, there's better news. The long-running battle between SAS and World Programming Limited (WPL) over the more general issue of whether copyright covers software functionality has now been settled by the UK Court of Appeal in favor of WPL. Here's a good report on the judgment from Out-law.com

On Techdirt.

Holy See (The Pope) Criticizes TPP And TAFTA/TTIP In WTO Speech

There's no shortage of critics of massive trade agreements like TPP and TAFTA/TTIP, but today saw strong condemnation from a very unexpected quarter: the Holy See, often, if erroneously, equated with the Vatican. Whatever the jurisdictional differences, the statement delivered by His Excellency Archbishop Silvano M. Tomasi, Apostolic Nuncio, Permanent Observer of the Holy See to the United Nations and Other International Organizations in Geneva at the 9th Session of the Ministerial Conference of the World Trade Organization presumably comes with the full approval of Pope Francis himself. We can assume that because of the extremely controversial statements it contains, which would have required approval at the highest level. Things like this: 

On Techdirt.

Companies Developing Crowd Analysis Programs To Detect 'Abnormalities' In Behavior And Match Faces Against Giant Databases

One of the reasons that the total surveillance programs of the NSA and GCHQ are possible is that computers continue to become more powerful and cheaper, allowing ever-more complex analyses to be conducted, including those that were simply not feasible before. Here's another example of the kind of large-scale monitoring that is now possible, as reported by Nikkei Asian Review: 

On Techdirt.

Twitter Hashtag Inventor Explains Why Patenting It Would Have Been The Wrong Thing To Do

Hashtags like #techdirt are not only an indispensable part of Twitter, but are also increasingly to be found elsewhere as a handy way of flagging up key topics in a compact and recognizable way. Given the monopoly-mad world we inhabit, it's something of a miracle that they weren't patented. Business Insider points out that Chris Messina, the former Google employee who came up with the idea in the first place, has explained precisely why he didn't try to patent them. The first reason is practical: 

On Techdirt.

TPP And TAFTA/TTIP Done Right: The Alternative Trade Mandate

Insofar as we know what's in them, both TPP and TAFTA/TTIP appear to have deep, thorough-going problems, which are unlikely to be addressed by the current approach being used to draw them up. However, a justified criticism of that view might be that anybody can carp, but what should we put in their place? Rising to that challenge is an alliance of some 50 civil society groups, who over four years have put together what they call The Alternative Trade Mandate (pdf), which is specifically designed to present a radically different emphasis for European trade negotiations

On Techdirt.

TAFTA/TTIP: What Price Transparency?

One of the key problems with TAFTA/TTIP is the same one that plagued ACTA and has recently been highlighted with TPP: the complete lack of any meaningful transparency. However much the negotiators may claim that transparency is important to them, there's no evidence to support that view. Or perhaps the politicians think the existence of conferences like one being held in Brussels next January provide enough opportunities for anyone who wants to convey their views to the EU's Chief Negotiator, say. He'll be attending, along with several other senior European Commission officials, according to the program. 

On Techdirt.

Increasing European Moves To Block Access To Websites Accused Of Helping People Infringe Copyrights

In their obsessive war on piracy, the copyright industries have tried various approaches. For a while, the "three strikes and out" was popular, until it became clear that it was completely ineffectual. At the moment, the preferred method is to try to force ISPs to block access to sites holding material that infringes on copyright. The UK led the way, and has now made the whole process pretty routine, as a recent post on the TechnoLlama blog explains

On Techdirt.

Resistance Grows To Inclusion Of Corporate Sovereignty In Canada-EU Trade Agreement (CETA)

Remember CETA, the Canada-EU trade agreement, officially known as "Comprehensive Economic and Trade Agreement"? You could be forgiven for losing track of where things were with the negotiations, which have been dragging on since 2009, but a kind of milestone was passed recently

On Techdirt.

Suitcase-Sized Drones Extend And Deepen OpenStreetMap's Coverage

An increasing number of online services use location information. This places suppliers like Google, with its Google Maps, in a strong position, since creating such geodata for entire countries -- or the world -- is something that can only be undertaken by large, well-funded companies. At least, that was true in the past, but increasingly the free, crowd-sourced alternative, OpenStreetMap, is gaining both contributors and commercial users

On Techdirt.

100,000 Users Of Chinese Microblog Sina Weibo Punished For Violating 'Censorship Guidelines'

We've written a number of times of the various ways in which China tries to police its online world. These include punishing individuals, as well as imposing general rules that apply to everybody. Until now, it's been hard to tell to what extent the latter were just saber-rattling. Now we know, thanks to a new post on the Global Voices site

On Techdirt.

Royalty Collection Agency SABAM Sued By Belgian Government Over 'Piracy License' Plans

Back in May, we wrote about how the Belgian music royalty collection agency SABAM was taking ISPs there to court over its demand for 3.4% of Internet subscriber fees as "compensation" for online piracy in Belgium. In yet another slapdown for SABAM -- it had previously failed in its attempt to turn ISPs into copyright cops -- the Belgian regulator says SABAM's plan falls foul of the EU's e-commerce directive, as IT World reports: 

On Techdirt.

Won't Somebody Think Of The Cows? New Zealand On The Brink Of Sacrificing Its Digital Future In TPP Negotiations

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

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:

On Techdirt.

Chinese CCTV Surveillance Defeated By Chinese Smog

Techdirt has often written about CCTV surveillance, and its many pitfalls. But according to this story in the South China Morning Post, the provincial capital Harbin, in north-eastern China, has a very particular problem in this regard

On Techdirt.

Internet Archive Fire Shows Vulnerability Of The World's Online Memory

The Internet Archive is a jewel of the digital world: 

On  Techdirt.

Renault Introduces DRM For Cars

The problems with DRM for videos, music, ebooks and games are well known. Despite those issues for the purchasers of digital goods, companies love DRM because it gives them control over how their products are used -- something that has been much harder to achieve in the analog world. The risk is that as digital technologies begin to permeate traditional physical products, they will bring with them new forms of DRM, as this post by Karsten Gerloff about Zoe, one of Renault's electric cars, makes clear: 

On Techdirt.

Australia Spied On Japanese Companies To Help Its Industries Negotiate Trade Deals

As more information comes to light about the global snooping being conducted by the NSA and GCHQ, it is becoming clearer that much of it had little to do with combating terrorism, as a recent EFF article makes plain. But most damaging to the idea that massive surveillance was justified, because it was to protect people from extreme threats, is the revelation that commercial espionage was also being conducted. So far, the chief example of that is in Brazil, but The Sydney Morning Herald (SMH) now has information about large-scale industrial spying on Japanese companies carried out by Australian secret services: 

On Techdirt.

How China Is Going Global With Its Censorship

It is neither a secret nor much of a surprise that China keeps its media under tight control. But one knock-on consequence of its rise as a global power is that it is now seeking to extend that influence to those located outside China, including mainstream Western media. That trend is explored in a new report from The Center for International Media Assistance (CIMA), entitled "The Long Shadow of Chinese Censorship: How the Communist Party's Media Restrictions Affect News Outlets Around the World." 

On Techdirt.

South Africa Plans To Terminate And Renegotiate Treaties That Include Corporate Sovereignty

Despite the growing evidence that corporate sovereignty clauses in international treaties pose considerable risks to nations that sign them, such "investor-state dispute settlement" (ISDS) mechanisms are present in both TPP and TAFTA/TTIP -- at least as far as we know: it's hard to be sure given the obsessive secrecy surrounding them. 

On Techdirt.

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

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

On Techdirt.

Is There Any Alternative To The NSA's 'Take It All' Approach?

At the moment, the only half-way serious attempt at justifying the NSA's "take it all" approach to surveillance is to claim that there is no alternative if we want intelligence agencies to spot and stop extreme threats like terrorism

On Techdirt.

US Court Rules Again That Natural Phenomena Cannot Be Patented, Casting Further Doubt On Gene Patents

Back in June, Mike wrote about the important Myriad Genetics judgment from the Supreme Court, which said that naturally-occuring genetic material could not be patented. However, because of some hedging from the judges, there were concerns about how much this would block gene patents in practice. Last week we had an indication that the impact is indeed likely to be significant, as VentureBeat reports: 

On Techdirt.

Is Snowden Inspiring A New Wave Of Whistleblowers?

We noted last week that Japan was bringing in severe new punishments designed to discourage whistleblowing. That might suggest that following Snowden's leaks, there will now be a period of repression where potential whistleblowers lie low to avoid bringing down the wrath of governments on their heads. One person with a better idea than most about what is really going on here is Jesselyn Radack. She's employed by the General Accountability Project (GAP), a leading US whistleblower protection and advocacy organization. Here's part of her biography on the GAP site

On Techdirt.

Why Opening Up Clinical Trials Data Is Good For Pharma Companies Too

Earlier this year we wrote about how AbbVie, the pharma company spun out of Abbott Laboratories, had gone to court to stop the European Medicines Agency (EMA) from releasing clinical trials information about one of its drugs. Despite what AbbVie claimed, this was not commercially sensitive in any way, but simply basic data about safety and efficacy. 

On Techdirt.

German Director Proposes 'One-Stop Shop' For Free, Instant, But Non-Exclusive Licenses To Offer Films Online

It's always heartening to come across new ideas for ways to make creations more widely available to the public while allowing artists to benefit. Here's one from the German film director Fred Breinersdorfer, probably best known for his film "Sophie Scholl". In an article that appeared recently on the newspaper site Süddeutsche.de (original in German), he complains about the fact that searching online for his film throws up plenty of unauthorized versions, but precious few authorized ones. 

On Techdirt.

Japan Likely To Pass New Secrecy Law That Would Put Whistleblowers And Journalists In Jail

One of the many worrying aspects of the Snowden saga is an attempt in the US to reframe whistleblowing as treason, and to make it harder for people to reveal information to journalists or the public that might embarrass the government there. However, things are even worse in other parts of the world. In Japan, for example, there are plans to bring in a new secrecy law that will make whistleblowing even more risky, as Reuters reports: 

On Techdirt.

India's Approach To Pharma Patents Under US Attack, But Other BRICS Nations Likely To Adopt It

Techdirt has been reporting for a while on India's growing success in providing its population with access to low-cost generic drugs, making use of the permissions to do so granted by TRIPS. That has naturally earned it the ire of Western pharma companies, which now seem to be striking back, as this post on Infojustice.org explains: 

On Techdirt.

IETF Begins To Work On Designing A Surveillance-Resistant Net

Edward Snowden's leaks show that the NSA and GCHQ have been systematically subverting key technologies that underlie the Internet. That betrayal of trust has prompted some soul-searching by the Net engineering community, which realizes that it needs to come up with more surveillance-resistant approaches. This story from Radio Netherlands Worldwide (RNW) provides information about the kind of thing they are working on in one key group, the Internet Engineering Task Force (IETF). It reports on a speech given by the IETF's chair, Jari Arkko, at the recent Internet Governance Forum in Bali, Indonesia. 

On Techdirt.

How Much Does Gold-Plated Corporate Sovereignty Cost? $1 Billion Or About 2% Of A Developing Country's GDP

Last week we wrote about the rising threat of corporate sovereignty, known more obscurely as "investor-state dispute settlement", that allows companies to sue countries for alleged loss of future profits. Just how grave that threat is for developing nations can be gauged by the following, reported by Tico Times: 

On Techdirt.

TTIP Update VI

In my previous TTIP update, I reported on an extremely important leak about the Trans-Pacific Partnership agreement (TPP), which is the other half of the US attempt to stitch up world trade through supranational treaties. 

On Open Enterprise blog.

Turning Mozilla Thunderbird into a Phoenix

I've always been a big fan of Mozilla's email client, Thunderbird, even when it was unfashionable to admit it. Because, for the last few years, the view amongst those "in the know" was that email was dead, that nobody used it, and that even if they did, Web-based systems like Gmail meant that Thunderbird and its ilk were dinosaurs. 

On Open Enterprise blog.

Resisting Surveillance on a Unprecedented Scale III

(The previous two parts of this essay appeared earlier.)

Or maybe not. There is a rough consensus among cryptography experts that the theoretical underpinnings of encryption - the mathematical foundations - remain untouched. The problem lies in the implementation and the environment in which encryption is used. Edward Snowden probably knows better than most what the true situation is, and here's how he put it:

Encryption works. Properly implemented strong crypto systems are one of the few things that you can rely on. Unfortunately, endpoint security is so terrifically weak that NSA can frequently find ways around it.

That's a hugely important clue as to what we need to do. It tells us that there is nothing wrong with crypto as such, just the corrupted implementations of otherwise strong encryption techniques. That is confirmed by recent leaks of information that show computer software companies complicit in weakening the supposedly safe products they sell - truly a betrayal of the trust placed in them by their customers.

The good news is that we have an alternative. For the last few decades, free software/open source has been building a software ecosystem that is outside the control of the traditional computer industry. That makes it much harder for the NSA to subvert, since the code is developed openly, which allows anyone to inspect it and look for backdoors - secret ways to spy on and control the software.

That's not to say free software is completely immune to security issues. Many open source products come from companies, and it's possible that some of them may have been pressured to weaken aspects of their work. Free software applications might be subverted as they are converted from the source code, which can be easily checked for backdoors, to the binaries - the versions that actually run on a computer - which can't. There is also potential for online holdings of open source programs to be broken into and tampered with in subtle ways.

Despite those problems, open source is still the best hope we have when it comes to using strong encryption. But in the wake of Snowden's revelations, the free software community needs to take additional precautions so as to minimise the risk that code is still vulnerable to attacks and subversion by spy agencies.

Beyond such measures, the open source world should also start thinking about writing a new generation of applications with strong crypto built in. These already exist, but are often hard to use. More needs to be done to make them appropriate for general users: the latter may not care much about the possibility that the NSA or GCHQ is monitoring everything they do online, but if they are offered great tools that make it easy to resist such efforts, more people may adopt them, just as millions have switched to the Firefox browser - not because it supports open standards, but because it is better.

Although the scale of the spying revealed by Snowden's leaks is staggering, and the leaks about the thoroughgoing and intentional destruction of the Internet's entire trust and security systems are shocking, there is no reason for despair. Even in the face of widespread public ignorance and indifference to the threat such total surveillance represents to democracy, as far as we know we can still use strong encryption implemented in open source software to protect our privacy.

Indeed, this may be an opportunity for open source to be embraced by a wider public, since we now know definitively that commercial software cannot be trusted, and is effectively spyware that you have to pay for. And just as Moore's Law allows the NSA and GCHQ to pull in and analyse ever-more of our data, so free software, too, can benefit.

For as Moore's Law continues to drive down the prices of personal computing devices - whether PCs, smartphones or tablets - so more people in developing countries around the world are able to acquire them. Many will adopt free software, since Western software companies often price their products at unreasonably-high levels compared to local disposable income. As open source is used more widely, so the number of people keen and able to contribute to such projects will grow, the software will improve, and more people will use it. In other words, there is a virtuous circle that produces its own kind of scaling that will help to counteract the more malign kind that underlies the ever-expanding surveillance activities of the NSA and GCHQ. As well as tools of repression, computers can also be tools of resistance when powered by free software, which is called that for a reason.