TPP Leak Confirms Measures To Criminalize Corporate Whistleblowing

from the no-public-interest-or-free-speech-exemptions dept

As Mike has reported, the core of the newly-leaked TPP chapter is about granting Big Pharma’s wish-list, with other worrying stuff for the copyright industry’s benefit thrown in for good measure. But hidden away in the chapter’s 70+ pages there’s something very different — and very dangerous. Here’s how the Australian newspaper The Age explains it:

The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system.

That’s clearly an incredibly broad definition of trade secret, and will allow a vast range of materials to enjoy this kind of protection. And by requiring criminal penalties, TPP aims to make that protection very serious indeed:

TPP countries may criminalise all such disclosures or, if they wish, limit criminal penalties to cases that involve “commercial advantage or financial gain”; are directed by or benefit “a foreign economic entity”; or are “detrimental to a [TPP] party’s economic interests, international relations, or national defence or national security.”

Notice that those are simply options: the default position is to criminalize everything. Moreover, even those “limited” cases could be applied very widely. Particularly troubling is the following aspect of the proposed text:

There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the “economic interests” of any TPP country.

The chilling effect that this would have on investigative reporting is evident. It would also represent yet another powerful reason not to become a corporate whistleblower.

The presence of this section in the latest TPP text is not a complete surprise: a slightly shorter version was already in the previous leak of this chapter, as we reported earlier this year. Moreover, its appearance in TPP seems to be part of a larger push for stronger protection of trade secrets around the world. In 2013, the European Commission proposed new rules “to help protect against the theft of confidential business information.” One of the questions in the accompanying FAQ was whether trade secret protection will be part of TAFTA/TTIP. Here’s the reply:

Trade secrets will be discussed in the TTIP negotiations, and has a heightened level of relevance with the recent allegations of economic espionage carried out by the national Security Agency (NSA). One goal could be to make sure that the two legal regimes are inter-operative facilitating recognition and enforcement of judgments on either side of the Atlantic. The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries.

That’s a clear signal that trade secrets will indeed be part of TAFTA/TTIP. Unfortunately, the latest TPP leak gives a pretty good idea of just how bad they are likely to be.

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Comments on “TPP Leak Confirms Measures To Criminalize Corporate Whistleblowing”

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41 Comments
Mason Wheeler (profile) says:

Ah, trade secrets. The bane of civilization and progress since ancient times.

Did you know that the oldest known steel samples date to the 14th Century? No, not the one with knights and steel swords and chainmail, actually; I mean the 14th Century BC!

Yeah. Something as essential to modern life as steel really is that old. It kept getting discovered, lost, and re-discovered over and over throughout history. Why? Two reasons.

First, figuring it out is hard. Iron is hard to work with, hard to refine from its ore, and hard to forge due to its melting point being significantly than that of most metals ancient smiths worked with. And to get steel, not only do you have to alloy it with something that tends to burn up well before you get it to temperatures hot enough to melt iron, you have to get the amount of the carbon just right, in a very narrow percentage range. Too little, and you get iron that’s slightly harder than usual. Too much, and you get worthless “pig iron” that’s too brittle to be useful. You need to hit the “Goldilocks zone” in terms of carbon percentages to get the shiny silver miracle metal, and that’s not at all easy with primitive tools and techniques.

Second, because once you’ve figured it out, it’s valuable. Today, we see steel as a structural material, and one of the most important ones around. It forms one of the pillars of modern civilization, right up there with electricity and running water. But in the old days, steel meant military power, swords and armor. Anyone who could produce it was likely to get rich selling their services to the king.

So they tended to not share the technique–it became a trade secret. And the problem with secrets that don’t get shared is that they can be lost if the person who doesn’t share them dies, or simply forgets. Sometimes the smith would share the secret with an apprentice or partner, other times he would take it to its grave and it would have to be rediscovered.

This state of affairs continued for approximately 3,000 years, right up until something fundamental changed. The British government realized something that we’ve since forgotten: that people keeping secrets was bad for innovation. So they came up with the patent system, that essentially said “if you want official recognition and protection for your discoveries, you can’t keep it a secret.” And then, almost as if by magic, two steelmaking techniques were created and published that helped kickstart the modern world by fueling the Industrial Revolution. Cheap, valueless steel turned out to be far more valuable than rare, valuable steel had ever been!

True, there were plenty of other factors influencing the development of the Industrial Revolution, but it’s difficult to overstate just how huge of a role commodity steel played. So right there, in one single example, we can see trade secrets literally setting back the progress of human civilization by 3,000 years.

And now we’re trying to protect them even more. You know what they say about those who do not learn from history…

Anonymous Coward says:

Re: Re:

The secret method used to make Damascus Steel remained a closely-held trade secret (or, at least it was never published anywhere) for well over a thousand years, then was lost forever in the modern industrial age. Damascus Steel was never patented, despite patent law coming into force in the final century or two if its existence.

But even today, secret processes are quite often not patented, since their unauthorized use can be hard to detect.

Richard (profile) says:

Re: Re: Re:

But even today, secret processes are quite often not patented, since their unauthorized use can be hard to detect.

Unfortunately true. In fact, in spite of the previous commenter’s example the patent system rarely does what is claimed for it. In practice the things that CAN be kept secret are kept secret (eg how Rolls-Royce manufacture compressor blades, the processes required to manufacture Technoweld aluminium solder) whilst the things that cannot be kept secret are patented.

Why exchange an infinite monopoly for a 20 year one if you don’t have to?

The reality is that progress is held up by human greed, selfishness and sense of entitlement. These bad factors can work equally effectively through trade secrets or through patents.

Anonymous Coward says:

Re: Re: Re: Re:

IMO the solution to this is to abolish legal protection for trade secrets entirely (other than as covered by NDAs, and perhaps a, say, 1-year grace period for patentable ideas to give time to test and write it up). It might even be worth excluding NDAs from the tort of interference with contract (although it might be better still to prevent employers suing for interference with employment contracts in general).

Mason Wheeler (profile) says:

Re: Re: Re:

Exactly. That’s something I’ve been saying for a long time: before you advocate for doing away with patents and copyrights, take a long, hard look at the problems that they were meant to (and actually did, at least at first) fix! What we need is to restore these systems to their original purity and get them back on track, turn them back into tools of progress rather than the corrupted tools of oppression that they’ve turned into over the centuries.

Anonymous Coward says:

Re: Re: Re: Re:

We don’t need to do away with patent law, but we should revise it so that it does what it is supposed to do…protect the innovator (not necessarily the company employing him/her). Such legistalation would really send these scoundrels running and sorry they ever raised the issue in the first place, since they are after unmerited profit, wealth, and property afterall, and don’t really care about merit at all. Restricting patent and copyright to the death of the owner or creator, and giving the owner or creator a percentage of rights to an idea that cannot be bought or sold away, would improve matters, and encourage innovation.

Anonymous Coward says:

as usual, the USA government (and probavly the security forces) is going so far over the top to try to frighten the crap out of everyone so when the bad moves come to light, no one will blow the whistle! the problem is, the harm it is going to do to everyone else is going to be immeasurable. no one is going to trust anyone! the world will become so paranoid, it will destroy itself and all of us. and remember, it’s all because of what the USA has been doing in spying on everyone, everywhere, but bitterly complaining when on the receiving end!

Anonymous Coward says:

Re: Re:

You’re only partially correct.

What they are doing is trying to make hacking into systems from the outside and stealing company secrets a crime. The rest is just gravy.

It’s kind of sad that I believe the people who actually drafted the language never considered that it could be applied to anyone except outsiders hacking in. I’m sure there were some criminal government types who are very happing with the language the way it is.

Reality bites (profile) says:

Re: Re: Don't underestimate the pure greedy evil of the scum pushing the TPP

Pure greed is a form of psychopathy, those afflicted cannot be cured, they are the worst form of parasite. Everything about the TPP and everyone involved is 100% criminal in nature.

That which is concocted in secret by those in power is always contrary to the good of the many.

Anonymous Coward says:

equal application?

Then by extension ALL governments, officials and any subsets thereof would also be subject to the SAME penalties. Our entire intelligence operation, executive branch, legislative and judicial officials are going to jail? Can I hear an AMEN. Maybe this TPP has some good points. Exactly who or what entity would judge the violations? Surely any group of judges would have members proportional to their station and numbers in society, right.

Anonymous Coward says:

Re: 1st amendment?

Don’t treaties count as amendments to the US constitution? ISTR that there’s a phrase which says that treaties form a part of the constitution (whereas, say, the Australian constitution says that treaties trump ordinary laws but not the constitution, and the British constitution ignores them entirely so that the enacting legislation is only an ordinary law as far as UK law is concerned (technically they can be declared as constitutional, but that jus means they can’t be implicitly overridden by contradictory legislation without noting that they’re being amended)).

John Fenderson (profile) says:

Re: Re: 1st amendment?

“Don’t treaties count as amendments to the US constitution?”

No, they don’t. There are numerous differences, but two of the main ones are that treaties can’t alter the Constitution, and treaties don’t require acceptance by a majority of state legislatures. In some ways treaties are like Constitutional terms (mainly, they trump normal law), but they can never trump the Constitution.

That One Guy (profile) says:

Re: Sigh...

Things are guarenteed to get worse only if people give up and don’t act. Remember if you will the SOPA/PIPA protests, the ACTA protests… protesting what were seen at the time as done deals, in the bag and almost ready to be rolled out, and yet killed off practically overnight when enough people made their voices heard.

Now are those involved trying to slip their wish-list items into law through other, less open means? Absolutely. But better by far that they have to work to twist the system, bit by bit, than have it handed to them entirely with a single law/treaty/’agreement’.

Hell, the fact that the negotiations with these agreements are being done in total secrecy is in direct response to those protests, as the ones trying to stab the public in the back know damn well what will happen when the public learns what they’re doing, and they’re trying to hold back the tide by keeping everything secret because of it. And yet, as these leaks show, that ‘perfect veil of secrecy’ will never hold, something will always make it out.

Anonymous Coward says:

Re: Re: Sigh...

SOPA, PIPA, ACTA, TPP … how many more times will the same legislation-for-pay favors to Hollywood get reincarnated and have to be fought all over again? It’s almost as if we might as well just give up and let them have it, because the special interests will eventually win sooner or later. They always do.

Rapnel (profile) says:

Re: Re: Sigh...

I think Pixelation is pretty much right. The more agreements and treaties that the public shouts down the more desperate the perpetrators will become. The frenzy for politicians will escalate and the bounties will get higher. The laws will turn with the tide and, once again (or still, depends how you view it), we will have to fight for what is ours.. the right to govern ourselves.

Representatives? Yeah, OK. When agreements like this take effect any representing (still) won’t mean shit. Your rights traded directly for money and power. Brilliant. Still brilliant.

When corporations drive the next level of “collaboration” for the inhabitants of the planet then we are all surely doomed. You think Hitlers, Mickey Mouse extremists and Magical States of Islam are bad? It’s that and all the dystopian fiction you’ve ever read or seen combined into one reality. Seeds. Oil. Drugs. Media. Communication. Secrets. All feeding off of your lives. Pretty awesome. Some people just want to eat and other people just want to eat you. Because.

Anonymous Coward says:

What a piece of crap is the TPP. Corporations already steal ideas from universities and our cultural heritage, not to mention a publicly educated work-force. Now they want protections for this. Let’s not forget we went to the moon 50 years ago. Decades of patent thickets and corporate welfare and unreasonable patent and copyright extensions have ruined innovation and placed property rights where they are already least deserved. What did the Disney heirs accomplish with all their protections, ‘nil…a bunch of crappy movies and pushing down more worthy talent…until Pixar finally got a foothold, and now they are even getting bought out by them…disgusting. The automobile was invented in the mid 19th century…it wasn’t until the patent ran out that Ford could make it into anything useful. You’d think with all the patents that M$ and Appole has they invented the transistor or laser…they didn’t, yet they protect all the “trade secrets” produced by their serf-scientist, and no one can improve upon it. With TPP, I expect 2100 to not be to much different than 2010.

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