TPP — copyright versus free speech

First pub­lished by RT Op-Edge.

We, the cit­izens of the world, already owe NSA whis­tleblower Edward Snowden a huge debt of grat­it­ude.  Even the lim­ited pub­lic­a­tion of a few of the doc­u­ments he dis­closed to journ­al­ists has to date pro­voked a polit­ical and pub­lic debate in coun­tries across the planet — and who knows what other nas­ties lurk in the cache of doc­u­ments, yet to be exposed?

Thanks to Snowden, mil­lions of people as well as many gov­ern­ments have woken up to the fact that pri­vacy is the vital com­pon­ent of free soci­et­ies.  Without that basic right we are unable to freely read, write, speak, plan and asso­ci­ate without fear of being watched, our every thought and utter­ance stored up to be poten­tially used against us at some neb­u­lous future date.  Such pan­op­tic global sur­veil­lance leads inev­it­ably to self-censorship and is cor­ros­ive to our basic freedoms, and indi­vidual cit­izens as well as coun­tries are explor­ing ways to pro­tect them­selves and their privacy.

As I and oth­ers more emin­ent have said before, we need free media to have a free society.

But even if we can defend these free chan­nels of com­mu­nic­a­tion, what if the very inform­a­tion we wish to ingest and com­mu­nic­ate is no longer deemed to be free?  What if we become crim­in­al­ised purely for shar­ing such un-free information?

The global mil­it­ary secur­ity com­plex may be bru­tal, but it is not stu­pid. These cor­por­at­ist elites, as I prefer to think of them, have seen the new medium of the inter­net as a threat to their profits and power since its incep­tion. Which is why they have been fight­ing a des­per­ate rear­guard action to apply US pat­ent and copy­right laws globally.

Pirate_Bay_LogoThey began by going after music shar­ing sites such as Nap­ster and impos­ing grot­esque legal pen­al­ties on those try­ing to down­load a few songs they liked for free, then try­ing to build national fire­walls to deny whole coun­tries access to file shar­ing sites such as The Pir­ate Bay and per­se­cut­ing its co-founder Ana­kata, mer­ci­fully fail­ing to extra­dite Richard O’Dwyer from the UK to the US on trumped up charges for his sign­post­ing site to free media, and cul­min­at­ing in the take down of Megaup­load and the illegal FBI attack against Kim Dotcom’s home in New Zea­l­and last year.

But for all these high-profile cases of attemp­ted deterrence, more and more people are shar­ing inform­a­tion, cul­ture, and research for free on the inter­net. Using peer to peer tech­no­lo­gies like Bit­tor­rent and anonymising tools like Tor they are hard to detect, which is why the cor­por­at­ist lob­by­ists demand the sur­veil­lance state develop ever more intrus­ive ways of detect­ing them, includ­ing the pos­sib­il­ity of deep packet inspec­tion. And of course once such invas­ive tech­no­lo­gies are avail­able, we all know that they will not only be used to stop “pir­acy” but will also be used against the people of the world by the mil­it­ary sur­veil­lance com­plex too.

But that is still not enough for the cor­por­at­ists.  Largely US-based, they are now try­ing to flex their polit­ical muscle glob­ally.  First the US claims that any site end­ing with a tier one US domain name (.com, .org, .net and .info) comes under US law — any­where in the world — and can be taken down without warn­ing or redress by a diktat from the US government.

More egre­giously still, the US cor­por­at­ists have been try­ing to impose their legal domin­ion glob­ally via a series of secret regional trade agree­ments: ACTA, TTIP/TAFTA, SOPA, and now in the recently Wikileaked details of the Trans-Pacific Part­ner­ship (TPP) tar­get­ing the coun­tries around the Pacific rim.

These agree­ments, writ­ten by cor­por­ate lob­by­ists, are so secret that the demo­cratic rep­res­ent­at­ives of sov­er­eign coun­tries are not even allowed to read the con­tents or debate the terms — they are just told to sign on the dot­ted line, effect­ively rubber-stamping legis­la­tion that is anti­thet­ical to the vast major­ity their cit­izens’ interests, which gives greater sov­er­eign powers to the interests of the cor­por­a­tions than it does to nation states, and which will crim­in­al­ise and dir­ectly harm the people of the world in the interests of the few.

One of the pro­pos­als is that mul­tina­tional cor­por­a­tions can sue national gov­ern­ments for future lost profits based on pat­ents not gran­ted or envir­on­mental restric­tions. This is noth­ing short of full-on cor­por­at­ism where inter­na­tional law and global treat­ies serve a hand­ful of large cor­por­a­tions to the det­ri­ment of national sov­er­eignty, envir­on­mental health and even human life.

For by pro­tect­ing “intel­lec­tual prop­erty” (IP), we are not just talk­ing about the cre­at­ive endeav­ours of artists. One does not need to be a law­yer to see the fun­da­mental prob­lem­atic assump­tions in the goals as defined in the leaked doc­u­ment:

Enhance the role of intel­lec­tual prop­erty in pro­mot­ing eco­nomic and social devel­op­ment, par­tic­u­larly in rela­tion to the new digital eco­nomy, tech­no­lo­gical innov­a­tion, the trans­fer and dis­sem­in­a­tion of tech­no­logy and trade;

This state­ment assumes that IP, a made-up term that con­fuses three very dif­fer­ent areas of law, is by defin­i­tion bene­fi­cial to soci­ety as a whole. No evid­ence for these claimed bene­fits is provided any­where. As with “what-is-good-for-General-Motors-is-good-for-America” and the the­ory of ”trickle down” eco­nom­ics, the bene­fits are simply assumed and altern­at­ive mod­els act­ively and wil­fully ignored. The idea that most soci­et­ies on the planet might vastly bene­fit from a relax­a­tion of pat­ent laws or the length of copy­right is not even up for debate. This des­pite the fact that there is plenty of research point­ing in that direction.

These secret pro­posed treat­ies will enforce pat­ents that put the cost of basic phar­ma­ceut­ic­als bey­ond the reach of bil­lions; that privat­ise and pat­ent basic plants and food; and that pre­vent the shar­ing of cut­ting edge aca­demic research, des­pite the fact that this is usu­ally pro­duced by pub­licly fun­ded aca­dem­ics at our pub­licly fun­ded universities.

The price, even today, of try­ing to lib­er­ate research for the pub­lic good can be high, as Aaron Swartz found out earlier this year.  After try­ing to share research inform­a­tion from MIT, he faced a witch hunt and dec­ades in prison. Instead he chose to take his own life at the age of 26. How much worse will it be if TPP et al are ratified?

It is thanks to the high-tech pub­lisher, Wikileaks, that we know the sheer scale of the recent TPP débacle.  It is also heart­en­ing to see so many Pacific rim coun­tries oppos­ing the over­ween­ing demands of the USA. Aus­tralia alone seems sup­port­ive — but then region­ally it bene­fits most from its mem­ber­ship of the “Five Eyes” spy pro­gramme with America.

The intel­lec­tual prop­erty wars are the flip side of the global sur­veil­lance net­work that Snowden dis­closed — it is a clas­sic pin­cer movement.

hAs well as watch­ing everything we com­mu­nic­ate, the cor­por­at­ists are also try­ing to con­trol exactly what inform­a­tion we are leg­ally able to com­mu­nic­ate, and using this con­trol as jus­ti­fic­a­tion for yet more intrus­ive spy­ing. It’s the per­fect self-perpetuating cycle.

By cur­tail­ing the powers of the spy agen­cies, we could restore the inter­net to its ori­ginal func­tion­al­ity and open­ness while main­tain­ing the right to pri­vacy and free speech — but main­tain­ing a 20th cen­tury copyright/IP model at the same time is impossible. Or we could give up our pri­vacy and other civil rights to allow spe­cific pro­tec­ted indus­tries to carry on coin­ing it in. A last option would be to switch off the inter­net. But that is not real­istic: mod­ern coun­tries could not sur­vive a day without the inter­net, any more than they could func­tion without electricity.

As a soci­ety we’re going through the pain­ful real­isa­tion that we can only have two out of the three options. Dif­fer­ent cor­por­at­ist interest groups would no doubt make dif­fer­ent choices but, along with the vast major­ity of the people, I opt for the inter­net and pri­vacy as both a free chan­nel for com­mu­nic­a­tion and the free trans­fer of use­ful information.

Like any social change (the abol­i­tion of slavery, uni­ver­sal suf­frage), this is also accom­pan­ied by heated argu­ments, legal threats and repres­sion, and lob­by­ist pro­pa­ganda. But his­tor­ic­ally all this sound and fury will sig­nify.… pre­cisely noth­ing. Surely at some point basic civil rights will make a comeback, upheld by the legis­lature and pro­tec­ted by law enforcement.

The choice is simple: inter­net, pri­vacy, copy­right. We can only choose two, and I know which I choose.

The End of Privacy and Freedom of Thought?

I saw this chilling report in my Twit­ter feed today (thanks @Asher_Wolf): Tel­stra is imple­ment­ing deep packet inspec­tion tech­no­logy to throttle peer to peer shar­ing over the internet.

Des­pite being a clas­si­cist not a geek by train­ing, this sounds like I know what I’m talk­ing about, right?  Well some­what to my own sur­prise, I do, after years of expos­ure to the “hackt­iv­ist” ethos and a grow­ing aware­ness that geeks may our last line of defence against the cor­por­at­ists.  In fact, I recently did an inter­view on The Keiser Report about the “war on the internet”.

Offi­cially, Tel­stra is imple­ment­ing this cap­ab­il­ity to pro­tect those fra­gile busi­ness flowers (surely “broken busi­ness mod­els” — Ed) within the enter­tain­ment and copy­right indus­tries — you know, the com­pan­ies who pimp out cre­at­ive artists, pay most of them a pit­tance while keep­ing the bulk of the loot for them­selves, and then whine about how P2P file shar­ing and the cir­cu­la­tion and enjoy­ment of the artists’ work is theft?

But who, ser­i­ously, thinks that such tech­no­logy, once developed, will not be used and abused by all and sun­dry, down to and includ­ing our bur­geon­ing police state appar­atus? If the secur­ity forces can use any tool, no mat­ter how sor­did, they will do so, as has been recently repor­ted with the UK under­cover cops assum­ing the iden­tit­ies of dead chil­dren in order to infilt­rate peace­ful protest groups.

Writer and act­iv­ist, Cory Doc­torow, summed this prob­lem up best in an excel­lent talk at the CCC hack­er­fest in Ber­lin in 2011:

The shred­ding of any notion of pri­vacy will also have a chilling effect not only on the pri­vacy of our com­mu­nic­a­tions, but will also res­ult in our begin­ning to self-censor the inform­a­tion we ingest for fear of sur­veil­lance (Nazi book burn­ings are so 20th Cen­tury).  It will, inev­it­ably, also lead us to self-censor what we say and what we write, which will slide us into an Orwellian dysto­pia faster than we could say “Aaron Swartz”.

As Columbian Pro­fessor of Law, Eben Moglen, said so elo­quently last year at another event in Ber­lin — “free­dom of thought requires free media”:

Two of my favour­ite talks, still freely avail­able on the inter­net. Enjoy.

The Keiser Report — my recent interview

My recent inter­view on Max Keiser’s excel­lent RT show, The Keiser Report, appar­ently now the most watched Eng­lish lan­guage news com­ment­ary show across the world.

We were dis­cuss­ing such happy sub­jects as the war on ter­ror, the war on drugs, but pre­dom­in­antly the war on the internet:

Asymmetric Extradition — the American Way

Pub­lished in the Huff­ing­ton Post UK, The Real News Net­work, and Inform­a­tion Clear­ing House

I blame my part­ner. There I was hav­ing a per­fectly nice day off, poot­ling my way through the Sunday news­pa­pers and find­ing such intriguing art­icles about the fact that Bri­tain has invaded all but 22 coun­tries around the world over the cen­tur­ies (France is the second most pro­lific invader but also has the dubi­ous dis­tinc­tion of being the coun­try most invaded by Bri­tain, apparently).

Then he has to go and say “well, if the US ignores other coun­tries’ laws, why should we be sub­ject to theirs?”. This post is the unavoid­able result.

I had made the tac­tical blun­der of shar­ing two art­icles with him.  The first was an excel­lent inter­view in today’s Inde­pend­ent with news supremo and fin­an­cial sub­vers­ive, Max Keiser; the second was an art­icle I found in my Twit­ter stream from the indefatig­able Julia O’Dwyer about her son’s ongo­ing legal fight in the UK.

The con­nec­tion?  Unfor­tu­nately and rather inev­it­ably these days — extradition.

Richard O’Dwyer is the Shef­field stu­dent who is cur­rently wanted by the USA on copy­right infringe­ment charges.  Using a bit of old-fashioned get-up-and-go, he set up a web­site called tvshack​.com, which appar­ently acted as a sign-posting ser­vice to web­sites where people could down­load media.  Put­ting aside the simple argu­ment that the ser­vice he provided was no dif­fer­ent from Google, he also had no copy­righted mater­ial hos­ted on his website.

Richard has lived all his life in the UK, and he set up his web­site there.  Under UK law he had com­mit­ted no crime.

How­ever, the Amer­ican author­it­ies thought dif­fer­ently.  O’Dwyer had registered his web­site as a .com and the US now claims that any web­site, any­where in the world, using a US-originated domain name (com/org/info/net etc) is sub­ject to US law, thus allow­ing the Amer­ican gov­ern­ment to glob­al­ise their legal hege­mony. The most notori­ous recent case was the illegal US intel­li­gence oper­a­tion to take down Megaup­load and arrest Kim Dot­com in New Zea­l­and earlier this year.

This has already res­ul­ted in for­eign web­sites that attract the wrath of the US author­it­ies being taken down, with no warn­ing and no due pro­cess. This is the cyber equi­val­ent of drone war­fare and the presidentially-approved CIA kill list.

As a res­ult, not only was O’Dwyer’s web­site sum­mar­ily taken down, he is now facing extra­di­tion to the US and a 10 year stretch in a max­imum secur­ity prison.  All for some­thing that is not even a crime under UK law.  His case echoes the ter­rible 10-year ordeal that Gary McKin­non went through, and high­lights the appalling prob­lems inher­ent in the invi­di­ous, one-sided UK/USA Extra­di­tion Act.

So how does this link to the Max Keiser inter­view? Read­ing it reminded my of an invest­ig­a­tion Keiser did a few years ago into the extraordin­ary rendi­tion of a “ter­ror­ist sus­pect”, Abu Omar, from Italy to Egypt where he was inev­it­ably, hor­rific­ally tor­tured.  Since then, 23 CIA officers have now been tried under Italian law and found guilty of his kid­nap­ping (let’s not mince our words here).  The Milan Head of Sta­tion, Robert Lady is now wanted in Italy to serve his 9-year sen­tence, but the US gov­ern­ment has refused to extra­dite him.

So let’s just reit­er­ate this: on the one hand, the US demands EU cit­izens on sus­pi­cion that they may have com­mit­ted a cyber-crime accord­ing to the diktats of Amer­ican law, which we are all now sup­posed to agree has a glob­al­ised reach; on the other hand, US cit­izens who have already been con­victed by the due legal pro­cess of other West­ern demo­cra­cies are not handed over to serve their sen­tences for appalling crimes involving kid­nap­ping and torture.

I have writ­ten at length about America’s asym­met­ric extra­di­tion laws, but this is tak­ing the sys­tem to new heights of hypocrisy.

Just why, indeed, should European coun­tries reli­giously obey America’s self-styled global legal domin­ion and hand over its cit­izens, pre­sumed inno­cent until proven guilty, to the bru­tal and dis­pro­por­tion­ate US legal sys­tem?  Espe­cially when the US brushes aside the due legal pro­cesses of other demo­cra­cies and refuses to extra­dite con­victed felons?

It appears that the USA is in a hurry to reach and breach Britain’s record for for­eign inva­sions. But in addi­tion to old-fashioned mil­it­ary incur­sions, Amer­ica is also going for full-spectrum legal dominance.

Judicial rendition — the UK-US extradition treaty is a farce

Some­times I sit here read­ing the news -  on sub­jects in which I take a deep interest such as the recent police invest­ig­a­tion into UK spy com­pli­city in tor­ture, where the police decided not to pro­sec­ute — and feel that I should com­ment.  But really, what would be the point?  Of course the police would not find enough con­crete evid­ence, of course no indi­vidual spies would be held to account, des­pite the fact that the Brit­ish gov­ern­ment has already paid massive set­tle­ments to the victims.

BelhadjNow there are reports that the police will be invest­ig­at­ing MI6 involve­ment in the extraordin­ary rendi­tion and tor­ture of two Liby­ans.  The case appears bang to rights, with doc­u­ment­ary evid­ence that high-ranking MI6 officers and gov­ern­ment min­is­ters were involved in and approved the oper­a­tion.  Yet I’m will­ing to bet that the plods at Scot­land Yard will still not be able to find the requis­ite evid­ence to pro­sec­ute anybody. 

The inev­it­able (and prob­ably wished-for out­come on the part of the author­it­ies) is that people become so weary and cyn­ical about the lack of justice that they stop fight­ing for it.  And they can tem­por­ar­ily suc­ceed, when we suc­cumb to cyn­ical burnout.

But the case repor­ted in today’s Daily Mail, that of a young Brit­ish stu­dent facing extra­di­tion to the US des­pite hav­ing broken no laws in the UK, suc­ceeded in rous­ing my wrath. 

Richard_ODwyerThe hap­less 23-year old Richard O’Dwyer faces 10 years in a max­imum secur­ity Amer­ican prison.  His crime, accord­ing to the US, is that he set up a UK-based web­site that provided links to other inter­na­tional web­sites that allegedly hos­ted copy­right material.

This case is so troub­ling on so many levels it is dif­fi­cult to know where to begin.  There are issues around the crack­down of US cor­por­ate copy­right law, issues around the inequal­ity of the uni­lat­eral Extra­di­tion Act 2003, and his­toric ques­tions of US hypo­crisy about extradition.

So let’s start with the unsup­por­ted alleg­a­tions against poor Richard O’Dwyer.  He is a stu­dent who built a web­site that col­lated a list of sites in other coun­tries that host films, books and music for free down­load.  O’Dwyer did not him­self down­load any copy­righted mater­ial, and the web­sites he linked to were appar­ently within jur­is­dic­tions where such down­loads are not illegal.  Provid­ing a sign­post to other legal inter­na­tional sites is mani­festly not a crime in the UK and he has never been charged.

How­ever, over the last couple of dec­ades the US enter­tain­ment lobby has been fight­ing a vicious rear­guard action against copy­right infringe­ment, start­ing with the music, then the film, and now the pub­lish­ing industry.  The lob­by­ists have proved vic­tori­ous and the invi­di­ous SOPA and PIPA laws are soon to be passed by the US Con­gress.  All well and good you might think — it’s one of those mad US issues.  But oh no, these laws have global reach.  What might be legal within the UK might still mean that you fall foul of US legislation.

Gary_McKinnon2Which is where the Extra­di­tion Act 2003 becomes par­tic­u­larly threat­en­ing.  This law means that any UK cit­izen can be deman­ded by and handed over to the US with no prima facie evid­ence.  As we have seen in the appalling case of alleged hacker Gary McKin­non, it mat­ters not if the “crime” were com­mit­ted on UK soil (as you can see here, McKinnon’s case was not pro­sec­uted by the UK author­it­ies in 2002.  If it had been, he would have received a max­imum sen­tence of 6 months’ com­munity ser­vice: if extra­dited he is facing up to 70 years in a US max­imum secur­ity prison).

The UK gov­ern­ment has tried to spin the egre­gious Libyan cases as “judi­cial rendi­tion” rather than “extraordin­ary kid­nap­ping” or whatever it’s sup­posed to be.  So I think it would be accur­ate to call Gary McKinnon’s case “judi­cial rendi­tion” too, rather than bor­ing old extradition.

Richard O’Dwyer appar­ently didn’t com­mit any­thing that could be deemed to be a crime in the UK, and yet he is still facing extra­di­tion to the US and a 10 year stretch.  The new US laws like SOPA threaten all of us, and not just with judi­cial rendition. 

As I have men­tioned before, digital rights act­iv­ist Cory Doc­torow summed it up best: “you can’t make a sys­tem that pre­vents spy­ing by secret police and allows spy­ing by media giants”.  These cor­por­ate inter­net laws are a Tro­jan horse that will threaten our basic civil liber­ties across the board.

So now to my third point.  The hypo­crisy around the Amer­ican stance on extra­di­tion with the UK is breath­tak­ing.   The UK has been dis­patch­ing its own cit­izens off at an alarm­ing rate to the “tender” mer­cies of the US judi­cial sys­tem since 2004, with no prima facie evid­ence required.  In fact, the legal proof required to get a UK cit­izen extra­dited to the US is less than that required for someone to be extra­dited from one US state to another. 

The US, on the other hand, delayed rat­i­fy­ing the law until 2006, and the bur­den of proof required to extra­dite someone to the UK remains high, so it is unbal­anced not only in concept but also in prac­tice.  And this des­pite the fact that the law was seen as cru­cial to facil­it­ate the trans­fer of highly dan­ger­ous ter­ror­ist sus­pects in the end­less “war on terror”.

Why has this happened?  One can but spec­u­late about the power of the Irish lobby in the US gov­ern­ment, as Sir Men­zies Camp­bell did dur­ing a par­lia­ment­ary debate about the Act in 2006.   How­ever, it is well known that the US was remark­ably coy about extra­dit­ing IRA sus­pects back to the UK to stand trial dur­ing the 30-year “Troubles” in North­ern Ire­land.  We even have well-known apo­lo­gists such as Con­gress­man Peter King, the Chair­man of the Home­land Secur­ity Com­mit­tee attempt­ing to demon­ise organ­isa­tions like Wikileaks as ter­ror­ist organ­isa­tions, while at the same being a life-long sup­porter of Sinn Féin, the polit­ical wing of the Pro­vi­sional IRA.

UK_poodleThe double stand­ards are breath-taking.  The US dic­tates an extra­di­tion treaty with the UK to stop ter­ror­ism, but then uses this law to tar­get those who might poten­tially, tan­gen­tially, minutely threaten the profits of the US enter­tain­ment mega-corps; and then it delays rat­i­fy­ing and imple­ment­ing its own law for poten­tially dubi­ous polit­ical reasons.

And the UK gov­ern­ment yet again rolls over and takes it, while inno­cent stu­dents such as Richard O’Dwyer must pay the price.  As his mother is quoted as say­ing: “if they can come for Richard, they can come for anyone”.