Since the Snowden revelations first started coming out, forcing James Clapper to admit that he flat-out lied to Congress, we've been somewhat perplexed as to how Clapper could come out of the whole thing "unscathed." Congress seemed willing to look the other way, and the President didn't appear to have any interest in firing Clapper or Keith Alexander, so as not to "let Snowden win." But, it's never made much sense. Lying to Congress is a pretty serious crime -- and considering the lying was to cover up a program that just this week was found to be unconstitutional, it seems even more serious. The fact that anyone in Congress thinks that Clapper can even be remotely trusted to tell the truth going forward when he got away with lying, seems bizarre.
Hopefully that will be changing now.
Back in October, Rep. Jim Sensenbrenner, the author of the PATRIOT Act, argued that Clapper should be fired and prosecuted, but hadn't done anything to move that forward. However, with Monday's ruling now making it pretty clear that the program that Clapper lied about (in response to a question from Senator Ron Wyden), Sensenbrenner, along with six of his colleagues on the House Judiciary Committee have sent a letter to Eric Holder, demanding an investigation into Clapper's lying to Congress. The letter is quite a read. They're pretty direct about calling out Clapper for lying, how this is against the law, how others in government have been prosecuted for the same thing, and even how allowing this to go unpunished contributes to "cynicism" about the government.
Congressional oversight depends on truthful testimony--witnesses cannot be allowed to lie to Congress. Accordingly, we request you to investigate the Director of National Intelligence James Clapper's "erroneous" statements to the Senate Select Committee on Intelligence earlier this year.
[....] 18 U.S.C. § 1001 makes it a crime to "knowingly and willfully" make any "materially false" statement in the course of any "investigation or review, conducted pursuant to the authority of any committee." One of the hallmarks of American democracy is that no one is above the law...
[....] Director Clapper has served his country with distinction, and we have no doubt he believed he was acting in its best interest. Nevertheless, the law is clear. He was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of these things despite advance warning that the question was coming.
The country's interests are best served when its leaders deal truthfully with its citizens. The mutual sense of good faith it fosters permits compromise and concessions in those cases that warrant it. Director Clapper's willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel toward their government and undermines Congress's ability to perform its Constitutional function.
There are differences of opinion about the propriety of the NSA's data collection programs. There can be no disagreement, however, on the basic premise that congressional witnesses must answer truthfully.
It seems unlikely that Holder will do anything, but this is the first official move we've seen towards actually punishing Clapper for lying to Congress. It would be nice if others in Congress supported this effort as well.
We were just talking about the latest efforts to remove termination rights from musicians (and other artists), and a number of termination rights battles are still ongoing. Most of the existing ones are slightly different from the ones we're talking about -- and it gets pretty down in the weeds technically. In short, there are different rules for works created prior to 1978 and those after 1978. Most of the focus is on the termination rights for works created after 1978 -- though there are some interesting ongoing battles concerning works created prior to 1978... including that song you just can't stop hearing this time of year: Santa Claus is Coming to Town.
Judge Shira Scheindlin (yes, the judge who recently got attention for killing NYC's stop and frisk program, and then being removed from the case for a rather bizarre claim of bias) has now ruled that the heirs of the authors of that song, John Frederick Coots and Haven Gillespie, cannot terminate the copyright assignment, currently held by EMI, and thus EMI gets to retain the rights to that jingle you can't get out of your head no matter how many times you try.
You can read the details of the ruling at the link above or embedded below. I don't have any particular problem with the details of the ruling itself. The whole termination process is a mess -- especially for pre-1978 works -- and this is yet another case where unclear contracts likely led to this result. The reason I'm bringing up this bit of Christmas music copyright fighting is just to note that the song was written in 1934, at which time the maximum copyright that Coots and Gillespie could have hoped for was 56 years (28 years upon registration, with another 28 years if they renewed). That means that for the two of them, the incentive of having that copyright (which they then assigned away to Leo Feist, Inc.) last until 1990, was clearly all the incentive they needed to write and release that song. Under the basic terms of the deal that the public granted to the copyright holder, in 1990, that song belonged in the public domain.
Of course, thanks to the 1976 Copyright Act -- which extended copyright terms massively -- and then the Sonny Bono Copyright Term Extension Act of 1998, which extended copyright terms, yet again, for another 20 years, the song didn't go into the public domain in 1990. Nor has it reached the public domain today, 23 years later. Nor will it reach the public domain for many more years -- potentially never, if the recording industry is successful in extending copyright terms, as many expect. However, it seems somewhat ridiculous that the work did not go into the public domain in 1990. That was the deal that was struck when it was written. The song was to become part of the public domain. That didn't happen and the public got nothing in return for not being given what it was promised.
So, go ahead and sing whatever Christmas songs you like this seasons, but remember that thanks to the recording industry and Congress, you better not pout, you better just pay up your royalties in perpetuity, because the public domain is never coming to this town if they can help it.
What we have below is actually a ProPublica post by Kara Brandeisky, posted back in August of this year, but republished here under ProPublica's Creative Commons license. However, given the White House task force's recommendations, we thought it might be useful to be reminded what Senator Obama fought for concerning surveillance before he was President. Many of these look remarkably similar to what the task force proposes...
When the House of Representatives recently considered an amendment that would have dismantled the NSA's bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.
As a senator, Obama wanted to limit bulk records collection.
The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.
Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore — the software the NSA uses to sift through huge amounts of raw internet data — they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.
Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own "minimization" procedures. A leaked 2009 document said that analysts only needed permission from their "shift coordinators" to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.
As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.
The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans' privacy rights.
As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.
Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.
One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was "narrowly tailored" to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.
The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon's surveillance court order included a gag order.
Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.
The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.
Dratel only learned that the government had used Moalin's phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.
Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.
As a senator, Obama wanted the government to declassify significant surveillance court opinions.
Currently, the attorney general also gives congressional intelligence committees "significant" surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.
In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are severalbills in Congress that would compel the government to release secret surveillance court opinions.
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:
"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.
If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".
Well, either that was just more misdirection, or he's not in control of his staff. Because we learn from a stunning report of a little-publicized meeting between corporate lobbyists and the EU's negotiator on intellectual monopolies, Pedro Velasco Martins, that putting many of the worst features of ACTA into TAFTA/TTIP is precisely what the European Commission has planned.
Here's the background:
Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present
was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.
As you will notice, most of those companies are from the US. Nothing wrong that, of course, except when you consider the following:
Controversially, the supposedly neutral Commission negotiator and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.
Here's what the European Commission really wants to see in TAFTA/TTIP:
Commission negotiator Velasco Martins revealed the existence of a secret list of corporate demands for new intellectual property rights in the transatlantic treaty. Previously -- towards the public and the Parliament -- the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.
The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public. On plant variety rights the pharma sector has lobbied for "higher levels" of protection. On trademarks the corporate lobbyists had made classification-related requests to the Commission. Additionally there had been a lot of interest in trade secrets.
There's also stuff from our old friend ACTA -- stricter enforcement:
According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".
Since the beginning of the TTIP negotiating process, it is very clear that the eventual agreement on intellectual property rights will not include elements that were controversial in the context of ACTA. For example, the ACTA provisions on IPR enforcement in the digital environment (ACTA articles 27.2 to 27.4) will not be part of the negotiations. Neither will ACTA's provisions on criminal sanctions.
The report of the meeting contains many other fascinating insights into the real thinking of the European Commission. For example, apparently there is some relief that people are focusing on the horrors of corporate sovereignty, since that has allowed work on the "corporate Christmas list" to proceed unnoticed. There was also a warning that it is probably only a matter of time before details get out:
"Lots of people are waiting for the first slip, the first leak"
In the wake of the good things that have already flowed from Edward Snowden's leaks, and the enhanced status of whistleblowers today, that seems increasingly likely to happen. Finally, there was a useful hint of how the European Commission is going to attempt to justify bringing back ACTA in TAFTA/TTIP:
A recurring theme was that the public needs to be re-educated to understand the value of industry monopoly rights.
According to Pellegrino, the key to doing this is a number of pro-IP reports that will or have been released by OHIM.
One recent report was highlighted. It claims that every fourth job in the EU only exists because of intellectual property regulations.
That would presumably be this report, which claims ridiculously that:
IPR-intensive industries contribute
26% of employment and
39% of GDP in the EU
Techdirt wrote about this back in October, where we pointed out that it obtains these unrealistically high figures by including a whole range of industries that use things like copyright and patents only in the most limited and tangential way. Expect to see more of these exaggerated claims, based on similarly shoddy methodologies, appearing in the next few months.
That OHIM is putting out such propaganda isn't perhaps too surprising -- it's just a form marketing for its activities. But what is shocking is that an OHIM representative, along with the most senior EU negotiator for intellectual monopolies, should be offering detailed advice to US companies on how to subvert the TAFTA/TTIP negotiations by trying to keep the dissenting views of Members of the European Parliament and EU civic groups out of the debate. That's a direct assault on fair and open discourse, and ultimately undermines European democracy at a time when many are calling into question the entire idea of the European Union.
At the very least, the European Commission should set up a formal inquiry into what happened at this meeting, to make sure such blatant favoritism is avoided in future. If it doesn't, we'll know definitively that not only is it happy to see corporates on both sides of the Atlantic given preferential treatment during TAFTA/TTIP, but that it really doesn't care who knows. Meanwhile, those who took to the streets of Europe to fight off ACTA last year may want to start getting their boots ready.
It's been an interesting week. With both a federal judge and the White House's own task force both basically saying that the current NSA surveillance efforts go way too far, it seems time to admit that what Ed Snowden did was an incredible service to the American public (not to mention the rest of the world). The fact that the US is still trying to charge him under the Espionage Act is a travesty. You would think that revealing a secret government program that a federal judge found violates the Constitution would make one a hero and a whistleblower, rather than an outlaw.
And while some in the NSA have even floated the idea of granting Snowden amnesty, that seems like a non-starter in the White House. A report from the meeting President Obama held with tech company execs this week notes that at least one executive told the President that he should pardon Snowden -- something the President refused to do:
One participant suggested the president pardon Snowden. Obama said he could not do so, said one industry official. White House officials have said that Snowden is accused of leaking classified information and faces felony charges in the United States, and that he should be returned as soon as possible to the United States, “where he will be accorded full due process and protections.”
Whatever happens as a result of Judge Leon's decision this week and whatever comes of today's recommendations from the intelligence review panel, we cannot forget who it was who helped our country get to the stage of having this debate, not to speak of the personal price he has had to pay as a whistleblower -- turning to foreign dictatorships for refuge. We should be treating him as a hero for what he did, and Congress can do something about it.
The constitution bars a bill of attainder -- a law declaring that a particular individual is guilty of a crime. But there is no reason why Congress cannot enact a bill of non-attainder: a statute declaring retroactively that Edward Snowden is not guilty of any crime for what he has done to date, and forbidding the government from prosecuting him fo rpast conduct. Surely we own him that much for what he has done for us.
It's an interesting idea, and one that seems highly unlikely to happen -- especially as many in Congress stupidly are still referring to Snowden as a "traitor." But, there does seem to be growing support in Congress for real reforms over the surveillance efforts, and one would hope that those who are in support of such changes could also see why they ought to make a strong effort to protect the person who made those changes possible.
from the 10-years-for-momentarily-frightening-police-officers dept
I'm beginning to think the DHS, NSA, FBI and TSA are largely extraneous entities. We appear to have a shortage of terrorists to defend against. We can't seem to find enough terrorists worldwide to justify needlessly intrusive surveillance programs. The FBI can't seem to land any big fish without dropping the line into its stock pond. And what we have managed to scare up as prime terrorist suspects have been captured by zealous local law enforcement teams, utilizing a blend of expansive anti-terrorism laws and a credibility not normally granted to foul-mouthed teens using social networks.
It's not uncommon for environmental protesters to face arrest, but here's an apparent first: On Friday, Oklahoma City police charged a pair of environmental activists with staging a "terrorism hoax" after they unfurled a pair of banners covered in glitter—a substance local cops considered evidence of a faux biochemical assault.
Here are a few more details just in case anyone thinks I'm glossing over the real reason these protesters are facing terrorism-related charges.
Stefan Warner and Moriah Stephenson, members of the environmental group Great Plains Tar Sands Resistance, were part of a group of about a dozen activists demonstrating at Devon Tower…
Warner and Stephenson hung two banners—one a cranberry-colored sheet emblazoned with The Hunger Games "mockingjay" symbol and the words "The odds are never in our favor" in gold letters—from the second floor of the Devon Tower's atrium…
[W]hile their fellow activists were arrested for trespassing, Warner and Stephenson were hit with additional charges of staging a fake bioterrorism attack
Oklahoma City police spokesman Captain Dexter Nelson tells Mother Jones that Devon Tower security officers worried that the "unknown substance" falling from the two banners might be toxic because of "the covert way [the protesters] presented themselves…A lot were dressed as somewhat transient-looking individuals. Some were wearing all black," he says. "Inside the banners was a lot of black powder substance, later determined to be glitter." In their report, Nelson says, police who responded to the scene described it as a "biochemical assault." "Even the FBI responded," he adds.
OK. So the falling glitter was a bit frightening, seeing as it was outside its normal habitat, like a rave… or a 14-year-old girl's bedroom. But, this whole "terrorist" situation was all cleared up when it was determined to be nothing more than some ill-advised protest banner bedazzling, right?
Doug Parr, an attorney for the activists arrested on Friday, says he's never seen "terrorism hoax" charges—defined as "the willful conduct to simulate an act of terrorism"—filed against activists. "I've represented any number of political activists in Oklahoma for 35 years," he says. "This is the first time I am aware of that anyone has been arrested on terrorism-related charges for protest activity." Parr adds, "In my humble opinion, this is not at all an appropriate use of this statute."
Nope. The pair still face these charges, even after it was determined the substance was nothing more than harmless glitter and after Devon Tower employees removed the banners without the use of any Personal Protective Equipment. (OSHA has yet to offer an opinion on the dangers of airborne glitter.)
Apparently, not being a terrorist attack is its own crime, punishable by a 10-year prison sentence. All you have to do is make someone believe it might have been a terrorist attack (or at least believe it enough that they can sell their supervisors on it).
Parr says Oklahoma City police seemed determined on Friday to arrest the Devon protesters on terrorism-related charges. He says he overheard an officer at the scene, Major Steve McCool, ask for guidance by phone on how to charge Warner and Stephenson under Oklahoma's anti-terrorism act.
For someone blessed with such an obviously awesome name, McCool seems to be a very petty little man. This sounds very much like someone checking books on the legal bookcart for heft before deciding which one to throw at the two protesters. If nothing else, knocking a couple of protesters down with overwrought charges will deter a certain number of "covert [...] transiently-dressed individuals" from showing up at the next event, meaning even less effort will need to be made during the mop-up phase. It's a chilling effect, deployed completely without irony by Major McCool.
Parr suspects the problem runs deeper, all the way back to Transcanada, which has made a push in recent years to have protesters (of which Transcanada collects plenty) charged with terrorism-related charges -- even going so far as to produce and deliver presentations directly to law enforcement agencies and the FBI itself. If you think having a few over-imaginative officers is a problem, just wait until you get a whole department fresh off some "corporate training" wading into the next Occupy Wherever or interior bannering. And with every arrest, they'll build caseloads and precedent, making the next trumped-up, ridiculous charge even easier to apply.
Matt Blaze has been pointing out that when you read the new White House intelligence task force report and its recommendations on how to reform the NSA and the wider intelligence community, that there may be hints to other excesses not yet revealed by the Snowden documents. Trevor Timm may have spotted a big one. In the recommendation concerning increasing security in online communications, the second sub-point sticks out like a sore thumb:
If you can't read that, it says:
Governments should not use their offensive cyber capabilities to change the amounts held in financial accounts or otherwise manipulate the financial system.
While there have been plenty of reports about the US running hundreds of offensive cyberattacks on others, outside of things like Stuxnet, not many have been directly identified. And I'm unaware of any claims suggesting attempts to "manipulate the financial system" of any particular country and/or to "change the amounts held in financial accounts." It seems a bit odd to come out of the blue like that, and certainly suggests that this particular bullet point likely came as a result of a rather specific thing that came up during the task force's review.
So, now we wait for the inevitable news of what sort of financial shenanigans the NSA was up to.
For many years we've written about the problems of red light cameras. Installed over the past few years in many cities, the public statements supporting them were always about increased safety on our roads. However, as we've noted, plenty of studies showed that the cameras actually tended to increase accidents, showed little to no safety benefit, and were almost always driven by monetary incentives. Because of this, there were numerous reports of various municipalities actually deciding to decrease the time on yellow lights, thereby getting more money from tickets, but massively increasing the safety risk. Multiple studies have shown that the one way to make intersections safer is to increase the yellow light time -- but in order to make more money, many were decreasing it (often below legal limits).
The anger over these tactics has been increasing quite a bit over the past few years and a variety of cities decided to cancel their programs, causing the leading company providing these systems (who takes a large cut of every ticket), Redflex, to face some financial difficulties.
It appears that the trends are definitely against red light cameras. Cyrus Farivar has a great article (though, annoyingly paginated) about the decline in red light cameras, noting that 2013 was the first year where more red light camera systems were turned off than turned on.
Redflex's US operations took a hit in 2013 as the company installed 54 new systems—but removed 101. Redflex’s recent fiscal report (PDF) shows that its after-tax net profits in a six-month period have dropped by half: plummeting from $7.1 million in the first half of 2012 to $3.6 million in the first six months of 2013.
Meanwhile, the article also takes on the various "competing studies" concerning red light cameras, and pointing to one study that compared a whole bunch of the studies, evaluated their methodologies, and found that the ones that showed benefits to red light cameras, almost invariably had dreadful methodologies that didn't take into account the basic variability in accidents at any given intersection, and the likelihood of a return to the mean (in short: intersections with an abnormally large number of accidents frequently see that amount go down the following year -- and red light camera makers and the studies supporting them rarely took into account that variability, but assigned such a decrease to the cameras). When correcting for such problems, the study of studies found the data showed that red light cameras are a problem, not a solution:
The meta-analysis concluded that, when only the best studies were considered, "The results of the meta-analysis are rather unfavorable for RLCs... According to the results from these studies, right-angle collisions are reduced by about 10 percent, rear-end collisions increase significantly by about 40 percent, and the overall effect on all types of crashes is an increase by about 15 percent. Only studies with weaker study designs yield results that are more favorable for RLCs."
The study which those researches said had the best methodology also found significant negative impact overall:
the increase in costs from the increase in rear-end crashes more than offset the reduction in costs from the decrease in red light running crashes.
Hopefully, this is the beginning of the end for red light cameras. We're all for making intersections safer, but the way to do that is to increase the time on yellow lights -- and for places that still don't have this: have a brief interval where lights in both directions are red, rather than switching simultaneously to red in one direction and green in the other. And yes, every time I make that last point, people who don't live in places where that's the case marvel that any place in the world has this, but it's true in many, many places. Switching that to having an interval with both directions red, plus a longer yellow light, will actually make people safer, and yet... it doesn't make any more money, so very few have been willing to make this simple switch.
Back in April of this year, we wrote about a spate of investigations around the world into "pay for delay" deals, whereby a big pharma company essentially buys off manufacturers of generics so that the former can continue to enjoy monopoly pricing long after its patents have expired. One of those involved the European Union, and the two pharma companies Johnson & Johnson and Novartis. As PharmaTimes reports, fines are being imposed on them for their actions:
The European Commission has fined Johnson & Johnson (J&J) just under 10.8 million euros and Novartis 5.49 million euros, after finding that their subsidiaries in the Netherlands had agreed an anticompetitive deal aimed at delaying the market entry there of a generic version of the painkiller Duragesic (fentanyl), thus breaching European Union (EU) antitrust rules.
Of course, such sums are little more than a wrist slap for pharma giants, but it's nonetheless good to see the European Commission making clear that this anti-competitive behavior is not acceptable in the EU:
The payment by J&J to Novartis "shockingly deprived patients in the Netherlands, including people suffering from cancer, from access to a cheaper version of this medicine," said Joaquin Almunia, the European Commission vice president in charge of competitive policy.
Despite that fact, with the likelihood that cancer patients were probably in more pain than was necessary, some remain in denial:
In a statement, Novartis and [its subsidiary] Sandoz say they "reject the Commission's allegation that the 2005 co-promotion agreement was intended to deprive patients in the Netherlands of cheaper medicines."
Whether or not that was the "intention", it was the inevitable effect, and quibbling over the difference shows the moral squalor of companies like Novartis that regard additional suffering of cancer patients as some kind collateral damage that can be ignored in the cause of pumping up their profits.
Panic spreads through the European commission like ferrets in a rabbit warren. Its plans to create a single market incorporating Europe and the United States, progressing so nicely when hardly anyone knew, have been blown wide open. All over Europe people are asking why this is happening; why we were not consulted; for whom it is being done.
They have good reason to ask. The commission insists that its Transatlantic Trade and Investment Partnership should include a toxic mechanism called investor-state dispute settlement. Where this has been forced into other trade agreements, it has allowed big corporations to sue governments before secretive arbitration panels composed of corporate lawyers, which bypass domestic courts and override the will of parliaments.
In a clear sign that the European Commission is starting to worry that people are waking up to the dangers present in TAFTA/TTIP, Karel De Gucht, the commissioner for trade, has written a response to Monbiot's article. Techdirt readers will recall that it was largely because of De Gucht's handling of ACTA that it suffered an ignominious defeat in the European Parliament last year. Sadly, it looks like he has learned nothing from the experience:
George Monbiot, in his article on the negotiations for a Transatlantic Trade and Investment Partnership, claims the European commission has tried to "keep this process quiet" (Chickens in chlorine? It's what free trade's about, 3 December). This is laughable. Every step of these negotiations has been publicly announced and widely reported in the press. The commission has regularly consulted a broad range of civil society organisations in writing and in person, and our most recent meeting had 350 participants from trade unions, NGOs and business.
It's true, every step of the negotiations has indeed been announced, but only in terms of what was happening when -- hardly very informative. What people want to know is what is being said during those negotiations, and very little of that has been released. They would also like the opportunity to provide their views on the subject, and to be listened to. It's not clear who those "350 participants" mentioned above might include, or what the exact breakdown of numbers is. What we do know is that of 130 "meetings with stakeholders" that took place earlier this year, 119 of them were with large corporates and their lobbyists.
Here's an interesting point raised by De Gucht:
no agreement will become law before it is thoroughly examined and signed off by the European parliament and 29 democratically elected national governments -- the US government and 28 in the EU's council.
I've not seen this misdirection before, but I'm sure we will in future. It seeks to convey the idea that nothing is final, and that the European Parliament will be able to examine and approve the agreement before it is ratified. Strictly speaking, that's true -- with two important caveats. First, that the European Parliament cannot change a single comma of the agreement that is presented to it, whatever horrors it finds there. And secondly, the "signing off" is all or nothing: either it accepts everything, or rejects it. Given the exaggerated claims about the agreement's benefits, the European Parliament will be under huge pressure not to reject it, even if it contains a truly awful chapter on corporate sovereignty, for example.
On the subject of supposed benefits, De Gucht of course trots out the big numbers:
we do not take Monbiot's extreme view that investment protection agreements (IPAs) are "toxic" attempts to put monster corporations in charge of our destinies. His exaggerated fears are no reason to abandon a deal with the US that could create £100bn in new growth for Europe.
No justification for refusing to recognize that ISDS places corporations above nations is offered, just a dogmatic statement. But it's worth remembering that the £100 billion -- which comes from the €119 billion figure in the European Commission's report -- is for 2027, is the best-case figure, and is anyway unlikely to be achieved. That's because it assumes massive deregulation of health and safety standards that will to be too much even for a European Parliament under pressure to accept the deal.
There then follows this comment from De Gucht:
(Contrary to Monbiot's claims, the economic impact of free trade agreements has been positive. For example, Europe's agreement with South Korea has seen our exports rise by 24% in its first two years.)
Monbiot was quoting figures Techdirt used earlier this year in the context of NAFTA and KORUS. I find it interesting that De Gucht underlines the success of the agreement with South Korea. That also applies to investments: according to the European Commission's own site on the agreement with South Korea, "European companies are the largest investors in South Korea." And yet it turns out that there are no corporate sovereignty provisions in the agreement: it would seem that even without them, European companies are perfectly happy to make significant investments in South Korea, so why does the European Commission insist ISDS must be a part of TAFTA/TTIP?
Here's De Gucht's only attempt at a justification:
In reality, these IPAs [investment protection agreements] protect job- creating investment from discrimination and unfair treatment. The UK has benefited, with 15 British companies launching cases under investment agreements in the last five years.
Well, let's look at the most recent of those cases, as listed in the annual report on ISDS published by the United Nations Conference on Trade and Development. In 2012, UK companies concluded corporate sovereignty cases against the following nations: Argentina, Tanzania and Hungary. New ones were begun against Hungary, Indonesia, Pakistan and Uganda. That's pretty much as you'd expect: most cases were brought against governments in emerging economies where UK companies might be concerned about the judicial systems (whether or not that concern was justified is another matter.)
But those cases have no bearing on TAFTA/TTIP, which is purely between the US and EU, and therefore involves only the judicial systems of those two areas. Nobody could seriously claim that investors will fail to receive fair hearings in either, so De Gucht's invocation of other corporate sovereignty cases elsewhere is simply irrelevant.
He concludes by making some striking assertions:
EU investment agreements will explicitly state that legitimate government public policy decisions -- on issues such as the balance between public and private provision of healthcare or "the European ban on chicken carcasses washed with chlorine" -- cannot be over-ridden. We will crack down on companies using legal technicalities to build frivolous cases against governments. We will open up investment tribunals to public scrutiny -- documents will be public and interested parties, including NGOs, will be able to make submissions. Finally, we will eliminate any conflicts of interest -- the arbitrators who decide on EU cases must be above suspicion.
Of course, what he omits to mention here is that the EU is in no position unilaterally to insist: these things will only happen if the US agrees to them, and that seems highly unlikely, especially on transparency matters, where the US has shown itself completely unwilling to open up. Indeed, implicitly claiming that he will force the US to accept these conditions as part of the deal will make it more unlikely that it agrees to them.
De Gucht ends his assault on Monbiot with this stern admonition: