by Mike Masnick
Thu, Jul 18th 2013 3:04pm
by Mike Masnick
Mon, Jul 8th 2013 6:22am
from the get-rid-of-the-fisa-court dept
Over the weekend, the NY Times put out a powerful piece discussing how FISC has basically become a shadow Supreme Court, doling out all sorts of important rulings in total secrecy. It rules on cases where it only hears one side, and where there are no appeals, no guarantee that the full story is presented, and involves a bunch of judges who tend to have law enforcement backgrounds before being appointed to the court. In the end, you have a secret court issuing secret rulings by ex-law enforcement officials, allowing their former colleagues ever greater power to spy on everyone.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.As an example of how FISC has basically completely overturned the rules of surveillance in secret, the NY Times reveals the details of some of its thinking, taking a extremely narrow ruling meant to apply in special cases, and turning it into a general rule that has allowed the vast capture of information:
[....] Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.I don't care where you come down on the importance of widespread surveillance -- I just don't see how you can possibly square the above interpretation of the law with the 4th Amendment. If "special needs" can be used to justify mass collection of data on just about everyone "just in case" it might stop some sort of terrorist attack, then you no longer have a 4th Amendment. At all.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
But, the bigger issue here is just the fact that we have a secret court issuing secret interpretations of the law that have a massive impact on our privacy. This is supposed to be an open democracy. An open democracy doesn't involve secret courts and secret laws. We have laws that everyone knows, and which the public can discuss and weigh in on through their elected officials. When you set up a secret court, making secret rules with no oversight, and with all of the judges appointed by a single Supreme Court Justice with a particular bias, you no longer have a functioning democracy at all. And that's downright scary.
This is a point that some Senators have been making for years now, but the leaks from Ed Snowden have really made it that much clearer just how insane the situation is. Earlier, it had seemed like perhaps there was one or two rulings from FISC that had some oddities in the interpretation, and which should probably be revealed to the public. However, the various revelations so far suggest that the issue is much, much bigger, and we have a secret "shadow court" system that is systematically obliterating the 4th Amendment and helping to create and then "legitimize" the vast surveillance state.
The Snowden leaks have shone a number of lights on various bad things within our government, but one thing that they have made abundantly clear is that the FISC needs to go. Whether that means it needs to be opened up, or to have greater oversight, or just be done away with completely, could be up for discussion. But if it remains the way it is, it's clear that we've thrown away our basic democratic principles, and moved towards the same sorts of autocratic regimes with secret courts that the US has always presented itself as being against.
by Mike Masnick
Thu, Jun 13th 2013 10:37pm
from the nicely-stated dept
I have heard the argument that transparency would undermine the Administration's policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.This is actually in direct response to claims from the former USTR, Ron Kirk, who pointed to a failed trade agreement -- the Free Trade Area of the Americas -- which was handled in a much more open fashion as support for why the TPP must remain secret. But the reasoning there, as Senator Warren correctly notes, is ridiculous. If the trade agreement failed because the public opposed it, that should be seen as a good thing, because the government was stopped from going against the will of the people.
Warren's overall letter is great. Here's another snippet and the full text is embedded below.
President Obama made transparency and inclusion a centerpiece of his election, and in many areas, he has opened the doors of government to ensure that the product of governing can withstand public scrutiny and is not the product of back-room deal making.
While I have no doubt that the President's commitment to openness is genuine, I am concerned about the Administration's record of transparency regarding the Trans-Pacific Partnership. Specifically, I am troubled by the Administration's unwillingness to provide to the public the composite bracketed text relating to the negotiations. As you know, the composite bracketed text includes not only proposed language from the United States but also proposed language from other countries. These different proposals are brought together in one text, and negotiations focus on ironing out the various proposals and getting to agreement on common language. The lack of transparency in this area is troubling because, as you know, the bracketed text serves as the focal point for actual negotiations. I appreciate the willingness of the USTR to make various documents available for review by members of Congress, but I do not believe that is a substitute for more robust public transparency.
Thu, Apr 18th 2013 7:40am
Canadian Politician Removed From Provincial Assembly For Threats She Didn't Make On Facebook Group She Didn't Join
from the wut? dept
We've heard stories in the past about people being blamed for the comments of others on Facebook groups, such as an attempt to hold parents responsible for the groups their children join. While my position is that such blaming is reactionary and silly, there is at least a modicum of a tangential relationship between the parties. So what should the response be if such a relationship doesn't exist? What if someone is added to a group without their knowledge and members of that group advocate violence? What should be done then?
Well, if you're a member of the Newfoundland House of Assembly in Canada, apparently you are removed from the house of assembly proceedings entirely. Such was the case with Gerry Rogers.
Earlier Tuesday, Justice Minister Darin King said Rogers was a member of the Facebook group Kathy Dunderdale must GO!!! in which users had posted comments containing death threats against the premier.
"What kind of message is that sending to the people of the province, to our children in the province, when we talk about bullying and harassment and intimidation?" said King.Bullying? Well, the definition of the verb is "to treat abusively; to affect by means of force or coercion." Call me crazy, but it seems to me that forcing someone out of the duties of their elected office as a means for coercing them to apologize for something she had absolutely nothing to do with sort of meets the criteria, doesn't it? That's exactly what happened here, as Rogers aptly contends.
"I did not join this Facebook group," Rogers told reporters during the recess. Rogers said that she thinks that the government does not understand how Facebook groups work. "I was added to this group without my knowledge, without permission, and by somebody that I do not know," said Rogers.Premier Kathy Dunderdale, against whom the threats were made, responded specifically to that point, insisting that the government did indeed understand how Facebook groups operate, but it's up to each member of government to monitor all the comments on all the groups they belong to, whether they had chosen to belong to them or not. She also said:
"I'm not going to be bullied or intimidated into doing something that I don't think is in the best interests of the people in this province," said Dunderdale.No, Madame Premier, that privilege appears to be reserved for Gerry Rogers, and the people she represents, I might add, unless your government wants to rethink its concepts over whether to blame people for the actions of others.
by Glyn Moody
Wed, Apr 10th 2013 2:43pm
from the behind-closed-doors dept
One of the most worrying aspects of ACTA -- which began life as a "simple" treaty about combatting counterfeit goods -- was how it morphed into a new approach to global policy making. This had two key aspects. First, the treaty would be negotiated in secret, with minimal input from the public, but plenty from lobbyists, who were given access to key documents and to negotiators. Secondly, the results of those secret negotiations were designed to constrain the participating governments in important ways that nullified ordinary democratic decision-making. If at all, representative bodies were presented with a take-it-or-leave it choice; changing individual details was not an option.
That, in its turn, meant that public in those countries had very little chance to fight harmful provisions in a treaty, since the only way to do that was to persuade their government to reject it completely, which was extremely difficult after the years of negotiation. The European Parliament's dramatic refusal to agree to ACTA was largely because of the unusual division of power in the European Union.
TPP has adopted exactly the same process: negotiations behind closed doors, but this time, without even the occasional official release of drafts as happened with ACTA (luckily, there have been leaks.) And assuming the negotiations are concluded successfully, it is likely that national legislatures will be presented with the same take-it-or-leave-it offer, with huge pressure to accept.
More recently, the newly-announced transatlantic free trade agreement (TAFTA) between the US and the EU is gaining momentum, not least in terms of the countries that may ask to join. At the last count, these included Mexico, Canada and Turkey. The US has also started talking to West African states about a free trade agreement, and it's easy to see that being rolled into TAFTA at some point.
TPP is also expanding rapidly. Mexico and Canada have already joined, under pretty humiliating terms, while Japan has signalled that it wishes to do so. Recently we learned that South Korea and Taiwan are considering applying.
As we've noted before, putting together TPP and TAFTA, it's striking how they include all of the world's biggest economies outside the so-called BRICS group of emerging countries -- Brazil, Russia, India, China and South Africa. The natural response to being locked out of the two US-centric trade areas would be to form their own, and in fact India has begun talks with the Customs Union of Russia, Belarus and Kazakhstan about a free trade agreement. Significantly, enlarging that to including other nearby countries is already being mooted:
Kazakhstan's neighbour Kyrgyzstan is likely to be the fourth entrant and Tajikistan could over time be the fifth country to joint the Customs Union. Ukraine, Armenia and Moldovia would also be moving close to the Customs Union but for some time they are likely to be the first three countries outside the core.
Meanwhile, China is keen to form a major trade bloc with South Korea and Japan:
"China's intention is to first form a Northeast Asian economic cooperation that excludes the U.S. while Japan can't sit still as South Korea advances to the Chinese market with Korea-China free trade talks," said Heo Yoon, a professor at Sogang University Graduate School of International Studies.
It's easy to imagine other countries that are part of the Association of Southeast Asian Nations (ASEAN) Free Trade Area joining the group if and when formal negotiations get underway, not least because ASEAN already has free trade agreements with China, Japan and South Korea.
Although bilateral trade agreements are hardly new -- Wikipedia lists dozens of them, some going back to the 1980s -- there has definitely been a step-change recently. Increasingly, the emphasis is on joining multilateral free trade agreements like TPP and TAFTA, involving significant numbers of countries. On the part of smaller nations, their interest is probably driven by a fear of getting shut out of key markets. But for the bigger players -- notably the US and EU -- it's a convenient way of imposing unpalatable policies not just on the citizens of other countries, but on their own, too.
by Glyn Moody
Fri, Mar 15th 2013 3:36am
UK Politician Says EU Site Wants To 'Brainwash' Children With Propaganda About Democratic Principles
from the reading-too-much-into-it dept
The UK is famous for its tabloid newspapers and their particular brand of journalism. Here's a fine example from the Daily Express, under the headline "EU attempts to brainwash children with 'sinister Soviet-style propaganda'":
European Parliament chiefs are considering setting up a site to target young children with a "playful" presentation of their working methods and democratic principles.
The Daily Express story is mainly built around a few quotations from the politician Paul Nuttall. He belongs to the UK Independence Party, whose policy in a nutshell is as follows:
the rescue of the British people depends on withdrawal from the EU to regain our self-governing democracy
So it's no surprise that Nuttall has a slightly jaundiced view of anything the European Parliament does. Here are a few of of his comments in the article:
this exercise in funding kiddie propaganda really is cash for EU trash.
What's fascinating here is his choice of words: "kiddie propaganda", "vulnerable and easily manipulated", "a form of child abuse". Whether consciously or not, clear parallels are being drawn here with pornography and even child pornography ("kiddie propaganda") through the use of phrases that are familiar from those fields.
Our children need to be protected from this type of political propaganda because they are vulnerable and easily manipulated.
Political propaganda on vulnerable kids is a form of child abuse.
It's also striking that the image chosen by the Daily Express to illustrate the story is the classic perplexed child staring at a screen whose contents we cannot see -- the implication being that there is something bad there, but that we are powerless to protect the innocence of the young viewer. That, too, is something of a cliché in articles about pornography, and it's disconcerting to see it being wheeled out here for an article about promoting democratic principles.
by Glyn Moody
Fri, Jul 13th 2012 8:40am
UK Government Wants To Give Itself Power To Change Copyright Law Without Full Parliamentary Scrutiny
from the henry-viii-would-be-proud dept
A common feature of democracies is that new laws are scrutinized and debated by representatives of the people before they are passed -- the hope being that bad proposals can be amended or discarded. Laws giving governments the power to change other laws with only minimal oversight are therefore generally regarded as a Bad Thing. But that's exactly what the UK government plans to introduce, as this article on the Out-Law.com site explains:
The Government has outlined proposals to change UK copyright law to allow the Business Secretary to draw up any future laws affecting exceptions to copyright and rights in performances in the form of new regulations. The regulations would be contained in a statutory instrument, a draft of which would need to be "laid before and approved by resolution of each House of Parliament" before it could come into force.
However, that "approval by resolution" can be pretty minimal compared to the process required for passing new laws:
Acts of Parliament must be read, subject to further scrutiny and debate and approved by both the House of Commons and the House of Lords before they can come into law. However, new regulations in the form of statutory instruments can often be introduced without the same level of scrutiny or debate.
This power to change laws without Parliamentary approval is known as a "Henry VIII clause", since that monarch also availed himself of their convenience.
Such a meta-law that allows other laws to be changed without full scrutiny is potentially a dangerous thing, but it does cut both ways. It's true that it would permit the UK government to make copyright law even more unbalanced, but it might also allow it to move in the other direction, something already raised during discussions about this new power:
representatives from the creative industries had expressed "real concern" about plans to further liberalise the use of copyrighted material.
Their evident fear is that the UK government might bring in new exceptions to copyright pretty much without debate, and therefore in a way that they could not so easily fight using traditional lobbying techniques.
Although that would be a welcome result in terms of updating copyright, its benefit is probably outweighed by the long-term risk of such a Henry VIII clause being used by a future UK government to make copyright worse. On balance, it's preferable to have laws discussed and debated in the normal democratic way, rather than simply trusting governments to use their absolute powers wisely.
by Mike Masnick
Thu, Feb 16th 2012 8:55am
from the actually,-it's-the-opposite dept
Over the past two weeks, we have seen coordinated attacks on democratic institutions such as the European Parliament and national governments over ACTA. The signatories to this letter and their members stand against such attempts to silence the democratic process. Instead, we call for a calm and reasoned assessment of the facts rather than the misinformation circulating.That's quite a statement. We'd heard some SOPA/PIPA supporters hint at views like that, but not quite so blatant. Let's be clear: the protests and the public speaking out are the democratic process. They're not silencing the democratic process in any way. To suggest that people speaking out over their own viewpoint somehow silences the process, is to redefine "the democratic process" to be something entirely different than what most people believe.
by Mike Masnick
Wed, Feb 15th 2012 8:52am
the pirate bay
from the seems-like-a-reasonable-question dept
It's stories like this that raise significant questions about the prosecution. Even if you believe that Sunde was guilty of what he was charged with, I would think you should be able to admit that the list of things above should not have happened under any circumstance. When you read that... and then realize that the guy leading the prosecution against Megaupload for the US DOJ used to work for the industry as an "anti-piracy" exec -- you see the same pattern happening again and again. People who have too close connections to industry are making decisions on these issues designed to protect their industries, rather than looking at the actual impact on society and the economy. That's a pretty big problem, and shows how "regulatory capture" can sometimes become "judicial capture" as well.
The Swedish prosecutor sent out a memo in 2006 saying that TPB wasn't guilty of "main" crimes -- at best it aids and abets (he also mentioned that the people running TPB were very clever). But Hollywood was not happy with this and forced the Swedish Minister of Justice to visit the White House and talk about it. The United States told Sweden that if they didn't get rid of the site, they would not be allowed to trade with the US!
The minister (illegally) told the prosecutor what had happened which forced him to raid TPB -- only a few weeks after sending out that memo about how legal it was.
Evidently, Warner Brothers felt that the investigation was taking too long. The studio contacted the police officer in charge of the investigation (one person that worked mostly by himself) and before I had even been questioned by him, he interviewed for a job with Warner Brothers.
When we found out he'd been hired (by him changing his employer from "Polisen" to "Warner Bros" on Facebook) the reply we got was that it was proof that Swedish IT police are of such high caliber that even the big US companies would hire them.
I got promoted from "witness" to "suspect" a week after the job was promised.
During the trial it turned out that the judge was the chairman for the Swedish pro-copyright society, one lay judge ran a record company, another one was formerly the chairman for the songwriter lobby organisation. I could go on.
by Mike Masnick
Wed, Jan 18th 2012 9:35pm