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, 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 Fein, 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".