We've discussed more than a few times the awful precedent set by AT&T's Sponsored Data effort, which involves companies paying AT&T to have their service be exempt from the company's already arbitrary usage caps. While AT&T pitches this as a wonderful boon to consumers akin to 1-800 numbers and free shipping, as VC Fred Wilson perfectly illustrated last year, it tilts the entire wireless playing field toward companies with deeper pockets that can afford to pay AT&T's rates for cap exemption.

So how will the FCC's new net neutrality rules impact AT&T's plans? There's every indication it won't. The rules are still a few years and a few legal challenges away from becoming tangible, and in the interim, the FCC is telling companies that none of the zero rated efforts currently in play should be impacted. Meanwhile, the Netherlands, Slovenia, Norway, Chile and now Canada all realize the threat posed by zero rated apps and have passed net neutrality rules that outlaw zero rating. The FCC, in contrast, has consistently implied it sees zero rating as "creative" pricing.

That's given AT&T the justifiable confidence to sally forth with its dangerous precedent. After all, injecting a gatekeeper like AT&T (with a generation of documented anti-competitive abuses under its belt) right into the middle of the wireless app ecosystem won't hurt anyone, and has nothing whatsoever to do with net neutrality. Isn't that right, AT&T?:

"AT&T mobile and enterprise CEO Ralph de la Vega characterized the effort as a billing method and not a speed issue, which could be interpreted as a violation of neutrality. He said his initial belief is that the net neutrality policies passed by the FCC last week won’t impact the company’s plans. "It never was an issue of net neutrality,” he said. “I’m very pleased it looks like that will not be impacted."

My guess is that the FCC is going to be so busy trying to appease all of the folks fanning their faces over "heavy handed government regulation," that it will probably give ample leeway to services like this. And that's a problem. As I've noted a few times, AT&T, Verizon and Comcast are smart enough to avoid ham-fisted neutrality abuses like outright blocking or throttling services, and U.S. telecom regulators have already shown they're perfectly ok with all manner of anti-competitive behavior -- provided you pony up a half-assed technical justification for plausible deniability.

Blocking Google Wallet to try and give your own mobile payment service a leg up is perfectly okay, provided you offer a feeble, faux-technical explanation that leans heavily on network security. Double dipping and forcing Netflix to pay new interconnection fees just to reach your customers is okay, provided you argue you're just negotiating fair, run-of-the-mill peering arrangements. Making the biggest and most popular music services cap exempt (in the process hamstringing independents and small companies) is just great, provided you dress it up as consumer freedom. Don't like that HBO's streaming app could cannibalize your pay TV subscribers and set top revenues? Just refuse to make the app work and offer a rotating crop of excuses.

U.S. regulators haven't seriously batted an eyelash over any of these. Are these anti-competitive? Are they net neutrality issues? If we agree net neutrality is about preventing gatekeepers from abusing their dominant market position to hurt smaller companies, then aren't these all at least part of the broader conversation? With ham-fisted throttling and blocking off the table, ISPs and cable companies have shifted their focus to abusing gatekeeper power without looking like they're abusing gatekeeper power. If a company's really good at it, it can even trick consumers into rooting against their own best self interests (all the Redditors who don't understand the bad precedent set by T-Mobile's Music Freedom plan are a great example of this).

So again, while it's great the FCC grew a rare spine and crafted tougher net neutrality rules that are legally defensible, they won't mean much if the FCC isn't willing to be as consistently creative and aggressive in enforcing the rules -- as carriers are going to be when in comes to tap dancing around them.

The next Olympic games may be more than a year away but that's not stopping the International Olympic Committee from forcing a business -- located nowhere near any upcoming Olympic site and with more than a half-decade of uncontested use -- to change its name. [h/t to Techdirt reader The Baker]

In just six years, Portland, Oregon's Olympic Provisions has gone from a small restaurant with an attached charcuterie facility to a major brand complete with Portlandia immortality and an upcoming cookbook. And now it has to change its name, thanks to a cease-and-desist notice from the International Olympic Committee, the organization that coordinates the Olympic Games. OP co-founder/meat-maker Elias Cairo says OP's two restaurants (one of which has been a longtime member of the Eater Portland 38) and meat department will soon re-brand into Olympia Provisions, bypassing the trademark dispute by altering one letter.

The former Olympic Provisions says it was caught up in the IOC's periodic "random sweeps" -- which sounds an awful lot like the sort of behavior one district court memorably called out when dealing with a trademark bully.

The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer.

But that is very much the way of the IOC, and it monitors every nook and cranny of the entire world with its fingers on the trigger. The cease-and-desist it sent to the former Olympic Provisions was so overwrought that the owners first thought it was a joke. But a discussion with its lawyers made it clear it wasn't. The IOC's tactics would be laughable if only they weren't so often successful and damaging to the businesses on the receiving end.

"We start looking around at everything we've branded, from packaging to restaurants to delivery trucks," Cairo says of the costs to change OP's name. "To put a dollar figure on it would be impossible."

The IOC doesn't care about the source of the business names it finds infringing. It will make exceptions for businesses located around geographic features that already carry the name "Olympic," pretty much limiting US use of the term to the Washington area. And the local arm of the IOC -- the United States Olympic Committee -- will step in if the marketed goods bearing an Olympic brand are sold outside of that region.

Olympic Provisions, however, is named for a historic building -- something the IOC won't permit, although it has "graciously" allowed the business a little time to make the change.

For Olympic Provisions — which was named after the building that houses its first restaurant, Portland's historic Olympic Mills building — they've reached a deal with the IOC that will allow them to slowly phase out the old OP labels and branding. (The short-term solution involves simply stamping a letter "A" on top of the existing labels; the OP team expects to be completely rebranded by this summer.)

The IOC claims it fears trademark dilution when defending its aggressive domination of the word "Olympic," but only comes off as unhinged and paranoid. But most entities don't have the funds to engage in legal warfare with this brand giant, so it often needs nothing more than a threatening letter to assure compliance.

When something's broken, you fix it. You don't make it worse.

Arizona's "revenge porn" law is bad. So bad it was challenged by the ACLU -- along with a number of journalistic entities -- who pointed out the overbroad wording would make all sorts of free speech criminal. Like publishing photos of the atrocities committed on naked prisoners at Abu Gharib. Or pictures of women breastfeeding. Or a sexual assault victim showing nude pictures of her assaulter to friends or family.

The court agreed, finding the law as written, unconstitutional. It temporarily blocked it from going into effect until it could be rewritten with a more narrow focus, so as not to criminalize protected speech. So, legislator J.D. Mesnard took his law and amended it. And made it worse and less constitutional. Amanda Levendowski, who has been following this law since its genesis, noted that one of the amendments strips out a much-needed First Amendment protection.

So, Arizona revised its revenge porn law to remove the public interest exception:

http://www.azleg.gov/legtext/52leg/1r/adopted/2561jdm.pdf

Sure enough, Mesnard is breaking what's fixed and "fixing" what isn't broken. It appears Mesnard doesn't like the idea of a narrowly-crafted revenge porn law. Interviewed shortly after the court shot down his law, Mesnard stated that it's too much to expect the state to prove accused revenge pornographers are actually revenge pornographers before charging them with felonies.

And they [law opponents, including the ACLU and the Media Coalition] want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.

Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create "a big old loophole."

"I'm definitely hesitant to go down that road because it will in my view make the law nearly meaningless," he said. "Because someone could say `I thought it was funny, I didn't mean to cause harm, I was proud of my ex-girlfriend and the way she looks.' They can come up with all sorts of excuses, and suddenly the very same action which in one circumstance is a crime in another circumstance isn't."

Mesnard wants to divorce criminal activity from criminal intent. He wants a law that makes the accused immediately guilty. Not only did he strip more free speech protections from his law, but he's trying to make eye-of-the-beholder the legal standard for revenge porn cases.

Intent is important. It's what separates murder from homicide. It's what separates security researchers and bug hunters from cybercriminals. It's what keeps every offhand, stupid remark on social media from being punishable as a "true threat." Or, that's the way it should be. The government -- at all levels -- seemingly has very little interest in determining intent. It's more comfortable in criminalizing non-criminal activity than fulfilling its obligations as a prosecutorial force.

Mesnard is no different. It's "hard" to prove intent so let's just write a law that doesn't require any additional thought or legwork. Guilty until proven guilty.

A court tells Mesnard his law is bad and must be fixed. And Mesnard makes it even worse. "Revenge porn is bad," he explains. Someone needs to do Mesnard a favor and put down his crippled hobby horse. The only upside here is that there's no way the court is going to find this version any better than the one it rejected a few months ago. And if he and his fellow legislators can't actually fix it, hopefully it will be overturned. But Mesnard remains an eternal optimist, despite being unable to compose a constitutional law.

"I'm confident that we'll come up with something that will be even clearer and cleaner that what we came up with last year and something that even if the ACLU continues to challenge in court will be upheld," Mesnard said.

Maybe he could start by asking the ACLU how this should be written. As the article points out, 13 other states have implemented "revenge porn" laws, but only Mesnard's have been challenged by the ACLU. It is possible to write a narrowly-crafted law that will survive legal challenges, but Mesnard is clearly uninterested in doing this. He's hoping to just muscle his free speech-threatening law past challengers and the court itself. Mesnard may view himself as tenacious, but if he continues to keep doing the same thing over and over again and expecting different results, he'll find another, much less flattering term being applied.

More Snowden docs have been released, covering the extent of GCSB's (New Zealand's intelligence agency) spying on supposedly "friendly" island nations. As is par for the course for intelligence programs, the documents show massive bulk collections of data and communications -- all of which are immediately shared with the other members of the "Five Eyes" club.

Since 2009, the Government Communications Security Bureau intelligence base at Waihopai has moved to "full-take collection", indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.

This sort of spying -- while apparently "normal," in light of previously-released documents -- indicates many governments enjoy spying for spying's sake, rather than for the justifications they often offer in defense of untargeted surveillance.

The documents, provided by US whistleblower whistleblower Edward Snowden, reveal that most of the targets are not security threats to New Zealand, as has been suggested by the Government.

Instead, the GCSB directs its spying against a surprising array of New Zealand's friends, trading partners and close Pacific neighbours. These countries' communications are supplied directly to the NSA and other Five Eyes agencies with little New Zealand oversight or decision-making, as a contribution to US worldwide surveillance.

New Zealand's intelligence agency, along with Prime Minister John Key, have previously refused to acknowledge or deny the use of the NSA's XKeyscore system. A short blurb from the obtained documents renders this Glomar null.


The wording indicates that GCSB is indeed using this system for its collections, which are then immediately accessible to the NSA. NSA analysts must first read through an online ("iLearn") briefing on NZ law and answer a few questions correctly before they're allowed to search the collection.

The collection itself is impressive. It contains phone calls, text messages, emails and social media interactions. In the parlance of the Five Eyes intelligence agencies, this is "full-take," a far more intrusive form of surveillance than skimming metadata off the top.

Even though it's purportedly an anti-terrorism tool, the surrounding friendly nations have given New Zealand little reason to spy on them. But that's how the anti-terrorism game is played by spy agencies: everything from everyone, for as long as possible. What's not legal to "look at" in one country can always be used by another. The built-in "protections" for each nation's citizens are nearly useless, considering the breadth and depth of these untargeted collections. Incidental collections are a certainty, rather than an anomaly analysts should be wary of.

Whatever's being collected had better be doing a bang-up job keeping terrorists at bay. Prime Minister John Key has openly stated that sending his own citizens off to die is foreign warzones is just paying Five Eyes membership dues.

In his strongest hint yet that the Cabinet will approve a deployment of troops to train Iraqis alongside Australians, Mr Key in an interview with the BBC drew heavily on New Zealand pulling its weight as part of "a club".

"Ultimately are we going to say we are going to be part of a club like [we] are with Five Eyes intelligence?

"Even if the contribution is small - of course it will be proportional - there has to be some contribution," he said.

"It is the price of the club."

Of course, Key has also reassured New Zealand citizens that the GCSB isn't spying on them, betting his job against that probability.

Asked if he and GCSB chief Ian Fletcher would resign if there were mass surveillance, he said yes.

"But the facts of life are it won't happen."

For that to happen, the GCSB would have to undertake illegal activity.

He clarified later saying "both" would resign if there was mass surveillance.

"If I wholesale blatantly flout the law as Prime Minister I'm never going to survive anyway."

Key's hedges make it almost impossible to hold him to his promise. Domestic surveillance has been confirmed, both by these documents and previous revelations. The interception points and untargeted dragnet make it inevitable that New Zealanders' communications are being swept up indiscriminately. The problem is that this is likely legal. The only way to violate New Zealand's surveillance laws (and hold PM Key to his promise) is to find proof that GCSB is intentionally targeting its countrymen. By making surveillance programs broad and untargeted, the GCSB can avoid violating the law while still collecting a great deal of domestic data and communications. Minimization comes into play post-collection, but there's nothing built into the system to prevent -- or even minimize -- these "incidental" collections.

Whatever the GCSB offers in assurances about minimization should probably be ignored. It doesn't maintain any control over the communications it grabs. The collection belongs to the NSA. GCSB analysts have to run queries through the American agency just to see what it's gathered from its neighbors.

The documents show that when GCSB staff want to access communications intercepted at Waihopai, they have to log into NSA computer databases. Minutes of a June 2009 meeting at the NSA headquarters, where a GCSB officer was present, show how integrated the GCSB is into the NSA systems. The GCSB officer, manager of an intelligence analysis unit, told the meeting that 20 per cent of GCSB's analytic workforce did not have accounts or access to key NSA databases.

Because the GCSB doesn't control the database, it really can't destroy anything it shouldn't have access to. New Zealanders caught in this dragnet now "belong" to the NSA, which has very few minimization procedures for foreign collections -- even if the actual "collection" utilized another agency and occurred under another set of laws. GCSB analysts may constrain themselves from searching or viewing New Zealanders' communications, but it can't promise to delete unlawfully-obtained "incidental" collections.

It works out this way: the New Zealand government will provide military support -- including the deployment of troops -- in exchange for whatever the NSA allows it to look at. It provides the intercepts, but the NSA enjoys the greatest share of its "partner's" collection efforts. This hardly seems like an equitable exchange. And now New Zealand is going to be dealing with irritated neighboring countries and more than a few irate New Zealanders. And for what? A massive, untargeted collection that it doesn't even control and which does very little to aid in the country's anti-terrorism efforts.

As you may know, we've been covering the story of Mississippi Attorney General Jim Hood and his campaign against Google. A few years ago, we noted how bizarre it was that Hood and other state Attorneys General seemed to be blaming Google for all kinds of bad things online. It seemed to show a fundamental lack of understanding about how the internet (and the law!) worked. Of course, things became somewhat more "understandable" when emails leaked in the Sony Hack revealed that the MPAA had an entire "Project Goliath" designed around attacking Google, and the centerpiece of it was funding Jim Hood's investigation into Google, including handling most of the lawyering, writing up Hood's letters to Google and even the "civil investigative demand" (CID -- basically a subpoena) that he could send.

Hood lashed out angrily about all of this, even as the NY Times revealed that the metadata on the letter he sent Google showed that it was really written by top MPAA lawyers. Hood continued to angrily lash out, demonstrating how little he seemed to understand about the internet. He made claims that were simply untrue -- including pretending that Google would take users to Silk Road, the dark market hidden site that could never be found via a Google search. Hood also dared reporters to find any evidence of funding from Hollywood, and it didn't take us long to find direct campaign contributions to his PAC from the MPAA and others.

Given all of this, we filed a Mississippi Public Records request with his office, seeking his email communications with the MPAA, its top lawyers and with the Digital Citizens Alliance, an MPAA front-group that has released highly questionable studies on "piracy" and just so happened to have hired Hood's close friend Mike Moore to lobby Hood in Mississippi. Moore was the Mississippi Attorney General before Hood and helped Hood get into politics.

We've had to go back and forth with Hood's office a few times. First, his office noted that Google had actually filed a similar request, and wanted to know if we were working for Google in making the request. We had no idea Google made such a request and certainly were not working on behalf of Google in making our request -- but Hood's office helpfully forwarded us Google's request, which was actually a hell of a lot more detailed and comprehensive than our own. This actually is helpful in pointing to some other areas of interest to explore.

However, after some more back and forth, Hood's office first said that it would refuse to share the emails between Hood and the MPAA's lawyers as they "constitute attorney-client communications" or "attorney work product" and that finding the rest of the emails would... require an upfront payment of $2,103.10:

In response to your request for e-mails between this office and the Motion Picture Association of America or the Digital Citizens Alliance, we estimate it will take our IT department five hours to conduct searches for e-mails responsive to your request. The hourly figure for the lowest paid employee able and available to do this work is $30.62, for a total of $153.10.

The documents will then have to be reviewed to determine if they fall under the definition of "public records" as defined by Miss. Code Ann. §25-61-3(b), and if they are otherwise exempt from the Public Records Act. At this time, a rough estimate of the amount of time to review the requested records is thirty hours. At $65 per hour, the total, conservative estimate to review your request is $1,950. Pursuant to statute, these total estimated costs of $2,103.10 must be paid in advance. We will revise the estimate as necessary after the search is completed and we have a better idea of how many documents must be reviewed. Of course, if we are able to fulfill your request for less than the estimate, then we will refund the difference to you.

I had one further back and forth with the office, asking why these estimates seemed so high. In this day and age, how could it honestly take five hours to run a search on an email system? More importantly, how could it possibly take 30 hours of high priced time to review each document like that? I may not be a FOIA master like Jason Leopold, but I've never seen a response to a FOIA request like this. Normally, when a journalist is seeking records, it's fairly standard to exempt fees, but it seems clear that Jim Hood's office doesn't want these emails getting out, so it's not going to do that.

It also is already telegraphing the fact that it's likely not going to release any of the emails that actually matter, claiming that they are either "attorney work product" or "investigative reports." While Hood's office says there are "nearly 900 emails" responsive to my request, it expects most of them to be exempt from public records requests. Thus, all we'd end up doing is forking over $2,103.10 that we don't have to Jim Hood's office to use to further its own efforts. I have no interest in further funding Hood attempting to attack fundamentals of free speech and the internet, but this little bit of obstructionism certainly is suggestive of the way Hood's office operates, and its absolute fear of transparency.

It certainly makes you wonder why his office is so afraid to release those emails? The Sony Hack certainly revealed some questionable activities going on between Hood, the MPAA, its lawyers and the Digital Citizens Alliance. If Hood's work with the MPAA and its lawyers and partners were truly above board, and Hood were truly committed to transparency, you'd think his office would be eager to release the emails and clear up any misconception. Unfortunately, they'd rather demand thousands of dollars from a small blog. That says a lot.

If there's one thing the Albuquerque Police Department (APD) does well -- or at least, frequently -- it's shoot and kill Albuquerque residents. Its officers' obvious preference for excessive and/or deadly force attracted the notice of the DOJ, which issued a (mostly) scathing review that was tempered somewhat by the DOJ's appreciation of the inherent risks of the job, as well as all the hard work the city's officers do when not shooting Albuquerque residents.

On May 3rd of last year, Gail Martin called the APD to help her when her husband, Armand Martin, threatened her and her two children with a gun. This turned into a lengthy standoff which finally ended when APD officers shot Martin as he ran from the house. According to the police, Martin was holding two guns at the time.

The APD released a number of records, including footage captured before and after the shooting, but nothing containing the shooting itself. Local law firm Kennedy Kennedy & Ives, representing Gail Martin for a possible civil rights lawsuit, requested a copy of police recordings containing the actual shooting under New Mexico's Inspection of Public Records Act (IPRA).

Over a month later, the APD responded. Sort of.

The Kennedy Kennedy & Ives Law Practice in the lawsuit said the department in mid-August released six CDs containing records on the May 3 shooting death of Armand Martin, a 50-year-old Air Force veteran, in response to the firm’s records request. But three of the CDs were password protected.

Now, this could have been a simple oversight, but if so, the problem would be solved already. Instead, it looks as though the APD is looking to keep the law firm from viewing the videos it requested.

The firm has tried to get the password from APD records, evidence and violent crimes personnel to no avail, according to the complaint…

Now the APD's being sued. The firm is seeking not only access to the password-protected videos, but also damages and legal fees. According to the firm, access to these videos is crucial to determining whether or not Gail Martin has a legitimate civil rights case. Without them, the firm is no better positioned to make this call than the general public, which has only seen the lead-in and aftermath of the shooting.

This isn't the APD's only legal battle related to its IPRA non-compliance. Late last year, KRQE of Albuquerque sued it for "serial violations" of the law. That's in addition to the one it filed over a 2012 incident, in which the PD stalled on its response to a journalist's public records request before releasing the requested footage at a press conference, basically stripping the reporter of her potential "scoop."


It's common knowledge that law enforcement agencies are less than helpful when it comes to releasing documentation of alleged wrongdoing. It's the one part they can't completely seal off when circling the wagons. This leads to weeks, months… even years of obfuscation. And this often leads to lawsuits, paid for by the same public it doesn't want to hold it accountable.

I've traveled to many different countries in my life and the only time I've ever had any trouble at all at a border crossing was flying into Canada for a conference one time. I was pulled out of the line and sent to a special side room where I was quizzed about the real reasons I was coming to Canada. They couldn't believe I was speaking at a conference, because I didn't have a paper invite, and had to dig through my emails to show them it in email (thankfully, I stored my emails locally and didn't need internet access). When I tell that story it shocks some people, as Canada has always had a reputation as a fairly easy border to cross -- especially for Americans.

But apparently the Canadians are stepping up their crazy antagonism at the border. The latest story involve Alain Philippon, a Canadian citizen who was returning from a trip to the Dominican Republic. Upon landing in Halifax he was ordered to cough up the password to his smartphone, and upon refusing, was charged with obstructing border officials:

A Quebec man charged with obstructing border officials by refusing to give up his smartphone password says he will fight the charge.

[....]

Philippon had arrived in Halifax on a flight from Puerto Plata in the Dominican Republic. He's been charged under section 153.1 (b) of the Customs Act for hindering or preventing border officers from performing their role under the act.

According to the CBSA, the minimum fine for the offence is $1,000, with a maximum fine of $25,000 and the possibility of a year in jail.

In the US, there have been a number of cases concerning searches of computers and electronic devices at the border, with an unfortunately large number saying that you really don't have privacy rights at the border. Of course, it's not universal, as at least one important court has ruled otherwise. Up in Canada, however, there apparently hasn't been much caselaw on this issue, so assuming Philippon fights this, it could make for a very interesting case.

Back in the summer of 2013, we wrote about yet another case of someone abusing the DMCA to censor content, rather than for any legitimate copyright purpose. The story was quite ridiculous, involving a group in the UK, called "Straight Pride UK." The group did an interview with a student named Oliver Hotham, who had emailed the group, noting he was a journalist with a list of questions. The guy behind "Straight Pride UK," Nick Steiner, responded to the questions with a document, which the group labeled as a "press release." Hotham posted his article, which, quite reasonably, made Straight Pride UK look ridiculous. In response, the group issued a DMCA takedown notice to Automattic, the company behind Wordpress.com, and the host of the article.

A couple months later, the legal team at Automattic decided it had had enough of these kinds of bogus takedowns and filed two lawsuits concerning bogus takedowns, including Nick Steiner's. As we've noted for years, the DMCA does have section 512(f) which allows for some punishment for bogus DMCA takedowns, but in practice, 512(f) has been almost entirely neutered by the courts. Yet here were cases of clear abuse.

So it's good to see that the court in the Hotham/Automattic/Steiner case has now ruled for Wordpress and awarded $25,084.00. Unfortunately, Steiner has more or less ignored the entire case, so it is really a default judgment. And, assuming Steiner never comes to the US, it may not ever truly impact him, and it's doubtful that he'll pay up. Still, at the very least, it's nice to see some sort of victory against bogus DMCA takedowns, given that it is so rare.

Techdirt has been writing about corporate sovereignty for nearly two years now. The public is beginning to wake up to the dangers it poses, which means that politicians, too, are suddenly discovering that they need to have an opinion on the subject. Over in the European Union, attention is focused on the S&D (Socialists and Democrats) Group in the European Parliament. Because of the way seats were won in the recent EU elections, it is the S&D group that will make or break TTIP/TAFTA; that makes its position on investor-state dispute settlement (ISDS) crucial. This week, the S&D Group published a position paper that gives some insight into its thinking on this issue (pdf). Here's the opening statement:

The S&D Group opposes the inclusion of ISDS in Trade Agreements in which other options to enforce investment protection are available, whether domestic or international. In agreements with countries that have fully functioning legal systems and in which no risks of political interference in the judiciary or denial of justice have been identified, ISDS is not necessary.

That seems clear enough: "opposes the inclusion," "ISDS is not necessary." But of course, statements from political groups are never that simple. Later on, the paper says:

The S&D Group has already on numerous occasions expressed its serious reservations concerning ISDS. In particular in the case of TTIP, we have made it clear that we do not see a need for its inclusion and have called for it to be excluded when negotiations for the investment chapter start.

Here, the S&D Group does not "see a need for its inclusion" of ISDS in TTIP, which is a rather weaker statement. The paper concludes:

We have an interest in a good TTIP that becomes a gold standard agreement. We do not want to see this opportunity jeopardized by the inclusion of provisions on ISDS which are not acceptable to the S&D Group, a majority in the European Parliament, and the general public.

Now, that could mean two different things. Either:

We do not want to see this opportunity jeopardized by the inclusion of provisions on ISDS, since these will be unacceptable.

Or:

We do not want to see this opportunity jeopardized by the inclusion of provisions on ISDS if they take a form that is unacceptable.

The first is a categorical rejection of corporate sovereignty in TTIP, the second is a rejection of certain kinds of ISDS, but not the idea itself. Clearly, then, the difference is significant: in the first case, S&D would vote against TAFTA/TTIP if it contains ISDS, while in the second, it might tolerate corporate sovereignty if certain conditions are met, and vote in favor of TTIP. That second position could well become that of the European Parliament itself. That's because the "draft report on Parliament's recommendations to the Commission on the negotiations for the Transatlantic Trade and Investment Partnership" (pdf), put together by the European Parliament's Committee on International Trade, includes the following paragraph on corporate sovereignty:

Given the EU's and the US developed legal systems, a state-to-state dispute settlement system and the use of national courts are the most appropriate tools to address investment disputes. Should ISDS provisions be included in the TTIP, it seems to be clear, that further reforms to the current model, are critical to avoid the problems that have arisen under the provisions in existing FTAs and BITs. Now that the results of the public consultation are available, a reflection processes is needed within and between the three European institutions on the needed reforms. Investors abroad have to be treated in a non-discriminatory fashion and should have a fair opportunity to seek and achieve redress of grievances. This can be attained in TTIP without the inclusion of ISDS provisions.

This notes that ISDS is not needed in TTIP, but does not go so far as to reject it outright, and even speaks of what needs to be done "should ISDS provisions be included."

Clearly, then, the politicians are hedging here. They have noted -- how could they not? -- the huge rejection of ISDS by the public in the consultation carried out last year, and the 1.5 million signatures on the European petition against TTIP. But they are obviously unwilling to reject ISDS outright, not least because some MEPs, notably those from the conservative parties in the European Parliament, are largely behind TTIP, and do not want it jeopardized because of a statement that any form of ISDS is unacceptable.

What this means in practice, as in the US, is that the politicians will continue to try to gauge the public mood as they re-calibrate their responses. The latest statement by the S&D Group is part of that complex dance: an important rejection of corporate sovereignty, but by no means a definitive one.

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

Last month, we wrote about a great discussion between Edward Snowden and Bruce Schneier that explored how offensive and defensive operations by national intelligence agencies had changed as they moved online, becoming much more intertwined. A new Snowden leak published by The Intercept confirms that the situation is even more complex, because adversaries can learn from digital attacks directed against them to create even better weapons, which they then use to counterattack:

The NSA is specifically concerned that Iran's cyberweapons will become increasingly potent and sophisticated by virtue of learning from the attacks that have been launched against that country. "Iran’s destructive cyber attack against Saudi Aramco in August 2012, during which data was destroyed on tens of thousands of computers, was the first such attack NSA has observed from this adversary," the NSA document states. "Iran, having been a victim of a similar cyber attack against its own oil industry in April 2012, has demonstrated a clear ability to learn from the capabilities and actions of others."

That's because, unlike traditional physical weapons used against enemy infrastructure, digital versions are not generally destroyed during an attack. One of their big advantages is that once they have infiltrated and infected a target system, they can continue to carry out surveillance or attacks over a long time period. But that also means they may eventually be discovered -- especially if they leak out -- allowing them to be studied and improved in a way generally not possible with traditional weapons. Those new versions can then be directed elsewhere, including against the original attacker.

So intelligence agencies find themselves in a difficult position. The more they carry out attacks using digital weapons, and the more sophisticated those tools, the greater the likelihood that adversaries will detect them, adapt them and then turn them back against the country that deployed them. It's probably too much to hope that this may cause such weapons to be used more sparingly....

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