Techdirt has been following for a while the Canadian government's unabashed attempts to muzzle scientists and librarians who work for the state, as it tries to deny them the right to express their views if those happen to disagree with the Prime Minister Stephen Harper's political agenda. That battle over freedom of speech is not only continuing, but escalating according to this story in The Globe and Mail:
An Environment Canada scientist is under investigation for allegedly breaching the public service code of ethics by writing and performing a political song that criticizes the Harper government.
Tony Turner, a physical scientist who most recently was working on a study of migratory birds, has been put on administrative leave with pay over allegations that his participation in his song Harperman puts him in a conflict of interest, the union representing him said.
Turner's song, with its opening lines "Who controls our parliament? Harperman, Harperman. Who squashes all dissent? Harperman, Harperman," and a refrain of "It's time for you to go," is pretty mild stuff. A former head of the Ontario Public Service defended the government's actions as follows:
The public sector's ethics code states that federal public servants are expected to "[carry] out their duties in accordance with legislation, policies and directives in a non-partisan and impartial manner." Mr. Dean said the non-partisan nature of the public service offers protection that goes both ways: It prevents government officials from pressing public servants to act in partisan interests, and public servants make a commitment to do their jobs regardless of the political stand of the government of the day.
For one thing, it's not the case that the ethics code "prevents government officials from pressing public servants to act in partisan interests". As a BBC story on the muzzling of Canadian scientists reported:
The [media] protocol requires that all interview requests for scientists employed by the government must first be cleared by officials. A decision as to whether to allow the interview can take several days, which can prevent government scientists commenting on breaking news stories.
Sources say that requests are often refused and when interviews are granted, government media relations officials can and do ask for written questions to be submitted in advance and elect to sit in on the interview.
That's not allowing scientists to speak in a "non-partisan and impartial manner": the "media protocol" is clearly designed to cow government scientists and to ensure that they toe the official line in everything they say, regardless of what the science may indicate.
But the other point is that Turner was not performing his Harperman song as a government employee, but as a citizen -- he is described on the YouTube page as an "Ottawa folksinger", and there is no reference anywhere to his work as a government scientist.
Of course, the great thing about the Canadian government's absurd overreaction to this gentlest of private protests is that many more people will now learn that Turner is an environmental scientist who is being muzzled by a bunch of desperate control freaks who are frightened that the Canadian people might be told the truth about important scientific issues. Thank goodness for the Streisand Effect….
Recently, Techdirt has written dozens of stories about the Trans-Pacific Partnership agreement (TPP). That's largely because it seemed to be coming to a conclusion, after many years of negotiations, and so it was important to capture the last-minute twists and turns -- and the dirty deals -- as they happened. But as we reported a few weeks ago, that final breakthrough and completion never happened. Instead, we had the "Maui meltdown", when a whole bunch of old and new problems raised their heads, with the result that TPP may have missed a key deadline that means it won't be happening soon, if ever. That may have seemed an extravagant claim, but it is a sentiment that is gradually beginning to spread among commentators in Asia. Here, for example, is The Diplomat, a specialist title covering that part of the world:
The Trans-Pacific Partnership is in trouble. Trade ministers failed last month to conclude the massive 12-nation trade deal by their hoped-for summer deadline, putting negotiations in danger of collapse.
The Trans-Pacific Partnership (TPP) seems to be in deep trouble. Earlier this month, negotiators in North America tried to resolve differences over auto parts which were -- along with issues on dairy and sugar -- among the key obstacles to the deal which was meant to be finalised last month in Hawaii.
But as the weeks tick by, the chances are dwindling that these obstacles can be overcome in time to get the agreement to the United States Congress for approval before the US presidential primary elections begin in earnest in February next year.
And everyone seems to agree that once the primaries begin, the TPP is off the agenda indefinitely.
Another specialist title for Asia, Nikkei Asian Review, goes further, and makes the following comment:
The truth is that the TPP is a second-best option for Asia that will create significant adjustment problems, especially for smaller countries. The priority for Asia should be the RCEP, and if the U.S. and other countries want closer trading relations with Asian countries, it should be in that context.
Techdirt introduced the Regional Comprehensive Economic Partnership (RCEP) back in June, pointing out that it could end up even worse than TPP. But while TPP is at a standstill, RCEP seems to be moving forwards, as this article in The Jakarta Post explains:
Southeast Asian countries and their trading partners will continue their talks on the Regional Comprehensive Economic Partnership (RCEP) this October as China and Japan eventually agreed on certain thresholds for import duties on Monday.
The agreement between the two countries, which do not yet have bilateral free-trade agreements, will be a milestone for the RCEP as the duties had become one of stumbling blocks for the talks, which first began in 2013.
The biggest difference between TPP and RCEP is that China is part of the latter, but not of the former, while for the US, it's the other way around. China therefore has a big incentive to make RCEP happen quickly, and seems to be grasping the opportunity opened up by TPP's latest problems. Here's what Australia's Financial Review writes in an article entitled "Asian countries shift focus to regional trade after TPP delay":
Australia has focussed more on the US-led TPP in recent months on the basis that it would set important new principles for 21st century commerce in areas including services and regulation but the government now appears to be less confident of any swift conclusion to the TPP.
A participant in the meeting said China appeared to be seizing the opportunity to bring the RCEP to a conclusion after it had been seen to be languishing. [Australia's trade minister] Robb supported the Chinese objective of pushing for a conclusion.
The article also notes that RCEP has a big advantage in that it is not trying to define an ambitious set of new trading rules, as TPP is, but instead is merely attempting to harmonize existing trade agreements among RCEP's 16 nations, which also include another major economy absent from TPP -- India. The Financial Review column concludes with another small but telling indicator that Asian interest may be shifting away from TPP and towards RCEP:
Thai deputy commerce minister Apiradi Tantraporn said that while Thailand might want to join the TPP in the future, the RCEP was more important in the short term.
Here on Techdirt, nationwide tracking schemes tend to raise a red flag. In Malaysia, by contrast, there seem to be no such worries, as ambitious plans to introduce RFID tagging for all vehicles, reported by The Sun Daily, indicate:
A new vehicle security tracking system suitable for all types of vehicles -- the Radio Frequency Identification (RFID) -- will be implemented nationwide by the Road Transport Department (JPJ) by 2018.
According to the article, there are plenty of advantages of doing so:
This new system will enable the police and other authorities to effectively track down criminals
the RFID technology will herald a new era for vehicle security in Malaysia and it could be the answer to combat vehicle theft and cloned vehicle syndicates.
the RFID can also be used to provide real-time monitoring on road traffic situation.
And if you're worried that ne'er-do-wells might seek to avoid being tracked simply by ripping off said RFID tags, fear not, Malaysia has that covered:
theSun understands that the RFID tag is designed to shatter should any one attempt to tamper with it and can transmit a warning to the JPJ and police, should any one try to remove the sticker.
Sounds pretty foolproof. So why aren't other countries rushing to adopt this approach?
Interestingly, RFID technology has been criticised in many countries for its effectiveness to track vehicles movement and citizens. It has been widely accused for invasion of privacy in Belgium, Italy, UK and US.
Techdirt has written numerous articles about an important move in academic publishing towards open access. By shifting the funding of production costs from the readers to the researchers' institutions it is possible to provide free online access to everyone while ensuring that high academic standards are maintained. An important aspect of that, both for open access and traditional publishing, is peer review, which is designed to ensure that the most important papers are brought forward, and that they are checked and improved as they pass through the publication process. Given that pivotal role, the following story in The Washington Post is both shocking and troubling:
One of the world’s largest academic publishers, Springer, has retracted 64 articles from 10 of its journals after discovering that their reviews were linked to fake e-mail addresses. The announcement comes nine months after 43 studies were retracted by BioMed Central (one of Springer’s imprints) for the same reason.
To put those numbers in context, a specialized site that tracks this and similar malpractice in the academic world, Retraction Watch, reports that the total number of papers withdrawn because of fake reviews is 230 in the past three years.
It's not known exactly how the reviews of the 64 articles involved were faked, or by whom. But there are plenty of other cases that indicate ways in which the peer review system is being subverted. These range from the obvious ones like researchers reviewing their own papers or suggesting people they know as suitable reviewers, to more devious approaches, including the use of companies providing "specialist" services. As the Committee on Publication Ethics (COPE) wrote in its statement on "inappropriate manipulation of peer review processes":
While there are a number of well-established reputable agencies offering manuscript-preparation services to authors, investigations at several journals suggests that some agencies are selling services, ranging from authorship of pre-written manuscripts to providing fabricated contact details for peer reviewers during the submission process and then supplying reviews from these fabricated addresses. Some of these peer reviewer accounts have the names of seemingly real researchers but with email addresses that differ from those from their institutions or associated with their previous publications, others appear to be completely fictitious.
We are unclear how far authors of the submitted manuscripts are aware that the reviewer names and email addresses provided by these agencies are fraudulent. However, given the seriousness and potential scale of the investigation findings, we believe that the scientific integrity of manuscripts submitted via these agencies is significantly undermined.
The Washington Post article goes on to discuss various policies that publishers are beginning to put in place in an attempt to prevent fakes from undermining the peer review system. But the real problem lies not in the publishing process, but in the way that academic careers are judged and advanced. Currently, too great an emphasis is placed on how many papers a researcher has published, and whether they are in "prestigious" journals, where "prestigious" is generally defined using the highly-unsatisfactory "impact factor," supposedly a measure of academic influence. This creates an enormous "pressure to publish," which inevitably leads to some people cutting corners.
The best way to address the growing problem of fake reviews is to adopt better, more inclusive ways of evaluating academics and their work, and thus move beyond today's fixation on publishing papers in high impact-factor titles. While that thorny issue remains unaddressed, the great revolution in knowledge production and dissemination that open access potentially enables will remain incomplete and even compromised.
Discussions about copyright reform in Australia are now entering their fourth year, and the longer they go on, the worse the proposals become. That's in part because there has been a change of government in the interim, and the present Attorney-General, George Brandis, has made it clear he's firmly on the side of copyright companies, and indifferent to the Australian public's concerns or needs in a digital world.
One big problem for him and his maximalist friends is that a key recommendation of the Australian Law Reform Commission (ALRC), in its extremely detailed and rigorous analysis of the state of copyright in Australia, was to introduce a new fair use provision. This is absolute anathema for the copyright companies, which seem to hold that the law should only ever be changed in their favor, imposing a kind of copyright ratchet that prevents the public from gaining any substantial new rights. Simply dropping the fair use idea would be too obvious, so a way needs to be found to kill it off without causing an outcry against the Australian government's blatant favoritism. As ZDNet reports, maybe Brandis has found what he is looking for:
The Australian Attorney-General's Department has commissioned a cost-benefit analysis into the recommendation by the Australian Law Reform Commission (ALRC) to implement a fair use provision in the amendments that the government is proposing to make to the Copyright Act in order to adapt to the digital world.
The economic analysis, announced on Wednesday, will examine the cost effects that fair use would impose on copyright holders along with copyright user groups.
Although that sounds perfectly reasonable, the ZDNet story adds some important historical context from a year ago that Brandis probably hoped nobody would remember:
Brandis again affirmed his partiality toward content owners, claiming that the recommendation to implement a fair use defence was "a controversial proposal" and would weaken the rights of copyright owners.
"In considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators," he said in February 2014.
Since by its very nature fair use allows the public to use copyright material in various ways without needing to pay a licensing fee, this means there will inevitably be some "prejudice" to the copyright companies, although minor in comparison to the major gains for eveyone else. However impartial and balanced the cost-benefit analysis will be, it is bound to expose the fact that if the public gains any new freedoms there will be a theoretical loss for the copyright holders.
And that, presumably, will allow Brandis to refuse to implement the ALRC recommendation on the grounds that he must defend the interests of creators, even though they would be among the greatest benefactors of a fair use provision, which would allow them to use existing works in new and exciting ways. But who cares about art when corporate profits are at stake?
Last month, we wrote about attempts by the Indian government to make Aadhaar, the country's identity number system, mandatory. This was despite repeated rulings by the Indian Supreme Court that it should not be compulsory for government schemes. Last month, another application was made to the court, asking it once more to forbid the Indian government from requiring the Aadhaar card and a unique 12-digit identification number for its services. During the case, India's Attorney-General, Mukul Rohatgi, made the following remarkable assertion, reported here by Hindustan Times:
"[India's] Constitution makers did not intend to make right to privacy a fundamental right," Rohatgi told the bench, during the hearing of petitions opposing a government order that made the 12-number unique identification number mandatory, especially for seeking government welfare benefits.
The Attorney General quoted two decisions in support of his proposition -- from 1954 and 1963. Those opposing his argument contended that these decisions had been overtaken by the constitutional jurisprudence that had since evolved.
But as well as his purely legalistic arguments, Rohatgi took another, very different angle, telling the court:
It should balance the petitioner's rights against those of the roughly 700 million people, whose subsidies and welfare benefits were dependent on the "fool-proof scheme."
It is not mandatory for a citizen to obtain an Aadhaar card
the production of an Aadhaar card will not be a condition for obtaining any benefits otherwise due to a citizen.
However, the Supreme Court did allow the Aadhaar card and number to be used for a few specific government schemes: those for "distributing foodgrains and cooking fuel, such as kerosene." So perhaps people won't want for food or fuel even if campaigners continue to insist that privacy most certainly is a fundamental right, and that making Aadhaar mandatory would infringe upon it.
One of the key realizations over the last few years, especially post-Snowden, is that there is no such thing as "just metadata". Collecting metadata is not only as bad as collecting content, it is arguably worse. Whereas content must be parsed and understood -- something that is still quite hard to do well in an automated fashion -- metadata by definition is already classified and tagged. That makes it very easy to combine with other information, and in a way that scales, to reveal extremely intimate details about the person it refers to.
Techdirt has already run a couple of stories that demonstrate this. Back in 2011, the German politician Malte Spitz obtained his own phone location data, and cross-referenced it with his Twitter feeds, blog entries and other digital information to give a remarkably full picture of his daily life. More recently, Ton Siedsma went even further, allowing researchers to analyze all of the metadata generated by his phone -- with a predictably detailed picture of Siedsma emerging as a result.
All in all, this simple data request returned 13,000 individual records. There were 1,500 outgoing phone calls and SMSes but the vast majority -- 11,200 records -- were data sessions, complete with the time and date his phone connected to the mobile network and which cell tower it connected to.
In other words, by carrying a smartphone Will was in effect carrying a tracking device that logged roughly where he was every 20 minutes of every day, on average.
Government departments, police and security agencies have access to all the data Will received about himself -- and more -- without the need for a warrant.
As the article points out, this exercise has a special relevance for Australians because of a new data retention law that has been brought in this year. Like many other leaders doing the same, the Australian Prime Minister tried to soothe people's fears about this manifest intrusion into their private lives using the standard "it's just metadata" argument:
"We're talking here about metadata; we're not talking here about the content of communications," Prime Minister Tony Abbott said in February. "It's just the data that the system generates."
What's particularly valuable about this latest provision of real-life metadata is that the public can explore for themselves how much it reveals, by playing with the interactive tools provided on the site:
Over the coming days we're going to use these tools to delve deeper into Will's data and report back on what we discover.
We'll be writing about what we can infer about Will, as well as how police and other agencies might use data like this.
But we want your help. We're releasing these exploratory tools so you can tell us what you're able to find out about Will. You can also get the complete dataset to explore yourself.
This is a great way to get across to people that there is no such thing as "just metadata". Let's hope it encourages Australians to start questioning the huge data grabs of highly personal information being carried out by their government, along with its bogus assurances on privacy.
Over the years, Techdirt has had a couple of stories about misguided chefs who think that people taking photos of their food are "stealing" something -- their culinary soul, perhaps. According to an article in the newspaper Die Welt, it seems that this is not just a matter of opinion in Germany, but established law (original in German):
In individual cases, shared pictures may be illegal. At worst, a copyright warning notice might come fluttering to the social media user. For carefully-arranged food in a famous restaurant, the cook is regarded as the creator of a work. Before it can be made public on Facebook & Co., permission must first be asked of the master chef.
Apparently, this situation goes back to a German court judgment from 2013, which widened copyright law to include the applied arts too. As a result, the threshold for copyrightability was lowered considerably, with the practical consequence that it was easier for chefs to sue those who posted photographs of their creations without permission. The Die Welt article notes that this ban can apply even to manifestly unartistic piles of food dumped unceremoniously on a plate if a restaurant owner puts up a notice refusing permission for photos to be taken of its food.
It's sad to see this kind of ownership mentality has been accepted by the German courts. As a Techdirt article from 2010 explained, there's plenty of evidence that it is precisely the lack of copyright in food that has led to continuing innovation -- just as it has in other fields that manage to survive without this particular intellectual monopoly, notably in fashion.
Back in May, we wrote about the European Commission's attempt to put lipstick on the corporate sovereignty pig. Its attempt to "reform" the investor-state dispute settlement (ISDS) system was largely driven by the massive rejection of the whole approach by respondents to the Commission's consultation on the subject last year. Of the 150,000 people who took the trouble to respond, 145,000 said they did not want corporate sovereignty provisions of any kind. Even the European Commission could not spin that as a mandate for business as usual, and so it came up with what it called a "path for reform" (pdf). By promising to solve the all-too evident "problems" of corporate sovereignty by coming up with something it claimed was better, its evident plan was to include this re-branded ISDS as part of the TAFTA/TTIP negotiations with the US.
The "path for reform" starts from some tinkering with a few elements of the basic ISDS approach that leaves the basic idea untouched, and moves towards something slightly more radical -- a permanent court for settling investor-state disputes:
The EU should pursue the creation of one permanent court. This court would apply to multiple agreements and between different trading partners, also on the basis of an opt-in system. The objective would be to multilateralise the court either as a self-standing international body or by embedding it into an existing multilateral organization. Work has already begun on how to start this process, in particular on aspects such as architecture, organisation, costs and participation of other partners.
The European Commission probably thought this was a pretty clever move: head off objections to ISDS and its ad-hoc tribunals by recasting it as a permanent court of a more traditional kind. There's just one slight problem with this idea: according to the respected German newspaper Die Welt, the US rejects it completely (original in German):
There's no question of such a [judicial] authority. The US will not tolerate interference in its national sovereignty.
That's a rather ironic viewpoint, given that ISDS already interferes with national sovereignty. Assuming that Die Welt's source is trustworthy, the US attitude may well arise from the fact that it has never lost an ISDS case, and perhaps believes, somewhat naively, that it never will. That seems unlikely: if TAFTA/TTIP includes corporate sovereignty, more than 3,400 parent corporations in EU nations, owning more than 24,200 subsidiaries in the US, will suddenly gain the right to sue the US government using the mechanism, in connection with any of their past, present or future investments there.
Whatever its reasoning, a refusal by the US to countenance the creation of a new permanent court dealing with investment disputes leaves the European Commission's TTIP strategy on this point in tatters. It will be interesting to see whether it now begins to row back from the idea of creating a completely new court, and starts extolling the virtues of a slightly "reformed" ISDS instead.
Last week, we wrote that among the final obstacles to completing the TPP agreement was the issue of enhanced protection for drugs. More specifically, the fight is over an important new class of medicines called "biologics," which are produced from living organisms, and tend to be more complex and expensive to devise. The Conversation has a good feature looking at this issue in more detail. The central problem with biologics in TPP is "data exclusivity," which the article explains as follows:
Data exclusivity refers to the protection of clinical trial data submitted to regulatory agencies from use by competitors. It's a different type of monopoly protection to patents. While a product is covered by data exclusivity, manufacturers of cheaper follow-on versions of the product can't rely on the clinical trial data produced by the originator of the drug to support the marketing approval of their product.
Section 25a of Australia's Therapeutic Goods Act provides for five years of data exclusivity for all medicines. It makes no distinction between biologics and other drugs. Data exclusivity provides an absolute monopoly that, unlike a patent, can't be revoked or challenged in court.
As that makes clear, data exclusivity is a kind of super-patent in that it can't be challenged or revoked: if a drug company has run clinical trials to establish the safety of its new drug, it has an absolute and irrevocable monopoly on the use of that data -- for five years in the case of Australia, Chile, Singapore and New Zealand. This is obviously an incredibly powerful form of monopoly, so perhaps it's no surprise that US pharmaceutical companies want TPP to require signatories to grant an even longer period -- 12 years of data exclusivity -- for biologics.
That's useful for them, because even after drug patents have expired, and generic manufacturers can theoretically offer the same products without paying licensing fees, there remains the barrier of clinical testing. If the generic manufacturers can't point to the original clinical trials as proof that the drug is safe, they will need to carry out their own, which will take time and cost money. In practice, they are more likely to wait until the period of data exclusivity is over, effectively extending the original manufacturer's monopoly beyond that provided by patents alone.
So what? You might ask. Surely it's only fair that generic manufacturers cannot piggy-back on the work of the original drug companies? Although that argument sounds plausible, it overlooks the fact that what clinical trials produce is safety data about a drug, which is simply a certain kind of scientific fact concerning a particular complex compound, as unchanging as all its other features. It is not something that depends on the ingenuity of the person measuring it, because it represents intrinsic information about a substance. Granting data exclusivity is thus nothing less than giving a monopoly on knowledge itself, since it forbids any other company from being able to use that newly-established scientific fact.
That is a profoundly retrogressive step. Although dressed up in terms of fairness and recouping investments, the very notion of data exclusivity is an attack on the key idea that no one can own a scientific fact, and that science advances by building on existing knowledge. Arguments about whether the length of that monopoly should be five, eight or even twelve years, are not just pointless, they are pernicious, because any of them would lock the TPP countries into a system that allows basic facts to be owned, and would forbid them from exiting from it. The only acceptable length for data exclusivity is zero years; anything longer turns TPP into an attack on science itself.
The Peruvian President today adopted a legislative decree that will grant the police warrantless access to real time user location data on a 24/7 basis. But that's not the worst part of the decree: it compels telecom providers to retain, for one year, data on who communicates with whom, for how long, and from where. It also allows the authorities access to the data in real time and online after seven days of the delivery of the court order. Moreover, it compels telecom providers to continue to retain the data for 24 more months in electronic storage. Adding insult to injury, the decree expressly states that location data is excluded from the privacy of communication guaranteed by the Peruvian Constitution.
Of course, as the famous example of Malte Spitz showed in 2011, the stream of geolocation data from a mobile phone provides an incredibly detailed picture of where someone goes, and even what they are doing when cross-referenced with other personal digital information. It's pretty much equivalent to placing a tracking device on someone.
The EFF post goes on to point out that the move contradicts a variety of human rights obligations that Peru has undertaken to comply with. However, that is unlikely to move the Peruvian authorities much, just as it carries little weight with othercountries that have brought in data retention laws. Unfortunately, the underlying problem is deeper than bad laws like Peru's: it's that surveillance in general, and blanket data retention in particular, have become normalized around the world. Until that is addressed, it remains a constant battle to challenge the laws that reflect that approach.
In what is being called the "Maui Meltdown" by some, the TPP ministerial talks in Hawaii last week failed to produce the agreement that some hoped for, and many more expected. That's despite the fact that it was billed as definitely the last round. The New York Times has a good summary of the key problems that need to be solved to achieve that elusive final deal:
Tokyo was ready to extend major concessions on American truck tariffs but was blocked by Mexico, which wanted less competition for its own trucks in the United States market.
Canada held firm on protecting its politically sensitive dairy market ahead of elections in October, but for New Zealand, a tiny country with huge dairy exports, that was unacceptable.
And virtually all of the parties hated American protections of pharmaceutical firms, but a compromise on that issue could cost the support of Republicans in Congress.
Assuming the quickest timeline conceivable under the Fast Track rules, and that somehow a required International Trade Commission (ITC) report on TPP impacts could be completed faster than has ever occurred for past pacts, a TPP vote could take place about four and one half months after Congress is given notice of intent to sign a deal. Thus, negotiations must conclude at the July 28-31 TPP ministerial and a text must be ready for notice of intent to sign by August 1. That text must be publicly posted on August 31. This would allow for a vote the week of December 14. After that, Congress goes on recess and a vote would roll to 2016.
Public Citizen's analysis is detailed -- it runs to several pages -- and errs on the side of assuming the US government can push TPP through the system faster than anything comparable before it. And yet even on that generous assumption, the key deadline -- August 1 -- has not been met, which means that the TPP vote is almost certain to take place in 2016. Here's why that's important:
The political costs of an unpopular "yes" vote for the TPP will escalate if voting rolls into the 2016 presidential election year. Already Democratic and GOP presidential candidates have begun attacking the TPP and their public criticism is generating public attention on the pact’s potential threats of job loss and more. A 2016 TPP vote also would increase the risk that voters could punish those who vote "yes" on the TPP during the November 2016 congressional election.
Every passing day pushes any eventual TPP vote further into 2016, and diminishes the likelihood that it will be successful. The talks will continue, and agreement on the outstanding problematic areas may even be reached, but perhaps it no longer matters.
Back in 2012, we wrote about Philip Morris using corporate sovereignty provisions in trade agreements to sue Australia and Uruguay over their attempts to reduce the number of deaths from smoking through plain packaging and other health measures. Since then, the case has become a textbook example of all that is wrong with investor-state dispute settlement (ISDS).
For example, even though Philip Morris lost its battle in the Australian High Court to stop the introduction of plain packaging, it did not simply accept the ruling, but sought to use ISDS to nullify the court's decision. The natural instrument would be the trade agreement between the US and Australia, but the Australian government had wisely refused to accept a corporate sovereignty chapter there. So Philip Morris used an obscure 1993 trade agreement between Australia and Hong Kong, which did have ISDS, claiming that its business activities in the latter territory gave it the right to invoke the treaty -- a classic example of "treaty shopping".
Since those events from a few years back, we've heard nothing about how the Philip Morris ISDS case is proceeding -- until now, since The West Australian newspaper has discovered the following fact:
More than [AU]$50 million [about US$35 million] of taxpayer money is expected to go up in smoke defending cigarette plain packaging in a secretive international tribunal in Singapore.
But costs will pile much higher if Australia loses on its first defence that Philip Morris indulged in cynical "venue shopping" by shifting its headquarters to Hong Kong to sue Australia.
Philip Morris Asia is arguing that Australia's tobacco plain packaging measure constitutes an expropriation of its Australian investments in breach of Article 6 of the Hong Kong Agreement. Philip Morris Asia further argues that Australia's tobacco plain packaging measure is in breach of its commitment under Article 2(2) of the Hong Kong Agreement to accord fair and equitable treatment to Philip Morris Asia's investments. Philip Morris Asia further asserts that tobacco plain packaging constitutes an unreasonable and discriminatory measure and that Philip Morris Asia's investments have been deprived of full protection and security in breach of Article 2(2) of the Hong Kong Agreement.
The information obtained by The West Australian is significant, because it reveals the scale of the costs that a government must contemplate when defending itself against a corporate sovereignty claim. Given that background, it's easy to see why governments in these cases may choose to settle quickly, and to give the companies what they want, rather than risk mounting costs and a huge fine.
It's that fact that gives the lie to the claim that ISDS cannot force a government to change its laws. While that's true in theory, in practice governments are very likely to choose capitulation as the cheaper and easier option, recognizing that the whole process is biased against them. After all, unlike companies, a government can never win an ISDS case: the best it can hope for is not to lose.
Last week, Techdirt wrote about Google's refusal to comply with France's order to apply the "right to be forgotten" -- actually, a right to be removed from search results -- globally. Perhaps because the issue seems easy to understand, many have offered their opinions on the rights and wrongs of Google's move, both for and against. Writing in The Guardian, Julia Powles has provided a good summary of the two main positions. First, without the "right to be forgotten," the internet would become a "database of ruin":
Some meaningful rights to delist old, irrelevant or incorrect information from monolithic databases are important, in order to give us a small, imperfect measure of privacy and dignity. They offer a minor speed bump on asymmetric routes of power, like the one that says you have no rights or say over Google’s presentation of search results.
The opposing camp, which includes Jonathan Zittrain, says we must not give in to this natural desire to remove links in this way, because doing so would create a "Swiss cheese internet":
Even if we might see some merit in Europe’s data laws, Zittrain is not at all happy about them being used to carve holes out of Google search. To counter the database of ruin argument, he says we are creating a “swiss cheese internet”.
The nub of Zittrain’s concern is that the practice of shaping what stays and what goes from the database is hopelessly individualistic. By allowing the delisting of information that is incorrect, outdated or harmful for individuals, who knows what else will follow. It sets us on a path, Zittrain claims, where the internet becomes the lowest common denominator result of what all the world’s countries and courts are prepared to leave behind.
Both of these positions, and countless variations on them, have been expounded many times over the last few days, and Techdirt readers will doubtless have their own views. But Powles goes on to make a new and interesting point that connects the battle over the "right to be forgotten" with the copyright industry's war on sharing:
Google’s argument that "no one country should have the authority to control what content someone in a second country can access" is appealing, but it is also misleading. Currently, US copyright law is relied on to remove content from Google’s global index, no matter where an alleged incident occurs, and at a rate at least three orders of magnitude greater than partial delistings under data privacy laws. The respective rates of approval are 97% for 345 million copyright requests and 41% for one-quarter million privacy requests, in a comparative period.
Google's behavior here suggests that it is more important to enforce copyright takedowns globally than to do the same to protect personal privacy. That means the issue of "the right to be forgotten" is even larger than it seems at first sight. As Powles rightly notes:
The complex challenges involved in global enforcement of laws demand us to ask what kind of society we want to live in. Are trademark and copyright law really that black and white? Is it appropriate for global brands to block sites on the other side of the world, which are neither ambiguous in their origin or misleading to consumers, and may engender creativity and meaning in their own right? Can we balance, with equal force, human rights as much as economic rights?
As you may have heard, a company called Microsoft has just launched version 10 of one of its products. Here on Techdirt, we don't do software reviews -- you might be able to find one or two online if you search a little -- but we do like to analyze privacy policies. In this respect, it seems that Microsoft is breaking new ground, as EDRi.org found when it looked at updated terms and conditions that came into effect on August 1, just in time for Windows 10:
We copied and pasted the Microsoft Privacy Statement and the Services Agreement into a document editor and found that these "straightforward" terms are 22 and 23 pages long respectively. Summing up these 45 pages, one can say that Microsoft basically grants itself very broad rights to collect everything you do, say and write with and on your devices in order to sell more targeted advertising or to sell your data to third parties. The company appears to be granting itself the right to share your data either with your consent "or as necessary".
If you want more details, the French site Numerama has picked out the key elements (original in French), summarized in English by EDRi:
When signing into Windows with a Microsoft account, Windows syncs some of your settings and data with Microsoft servers, for example "web browser history, favorites, and websites you have open" as well as "saved app, website, mobile hotspot, and Wi-Fi network names and passwords". Users can however deactivate this transfer to the Microsoft servers by changing their settings.
More problematic from a data protection perspective is however the fact that Windows generates a unique advertising ID for each user on a device. This advertising ID can be used by third parties, such as app developers and advertising networks for profiling purposes.
Other features include generating a recovery key when encrypting the drive that Windows is installed upon, which is automatically backed up online in the Microsoft OneDrive account.
Microsoft's updated terms also state that it collects things about you, your devices, and app data, as well as information about the networks you connect to. Then there is Microsoft's personal assistant software "Cortana." If you use it, here's what it will gather:
Your device location, data from your calendar, the apps you use, data from your emails and text messages, who you call, your contacts and how often you interact with them on your device. Cortana also learns about you by collecting data about how you use your device and other Microsoft services, such as your music, alarm settings, whether the lock screen is on, what you view and purchase, your browse and Bing search history, and more.
And in case you thought that was everything, it also collects:
Your voice input, as well your name and nickname, your recent calendar events and the names of the people in your appointments, and information about your contacts including names and nickname.
Any one of these would be enough to raise serious privacy concerns, even if some can be turned off; put together, they look as if an executive order has gone out to harvest the maximum amount of personal information, and to disregard privacy issues completely. Back in 1999, when Sun's CEO Scott McNealy famously declared "You have zero privacy anyway, get over it," he could be forgiven for living in an innocent era when the harm that might flow from that situation seemed circumscribed. Today, in the post-Snowden world, putting "zero privacy" at the heart of your latest product in the way that Microsoft seems to have done with Windows 10, is not just foolish and anachronistic, but downright contemptuous of users and their safety.
[President of the New Zealand Open Source Society Dave] Lane said leaks of the negotiating position show that at one point only Mexico was holding the line on software patents and New Zealand appeared to have already conceded.
The implication is New Zealand's new software patent law, passed just two years ago, will need to be reversed if the TPPA is inked.
Lane went on to echo a point Techdirt made about TPP a couple of years ago:
if New Zealand hobbles the domestic software market by adopting US strong IP, strong patent and copyright terms, then we are effectively "killing in the cradle" an industry that is projected to soon surpass dairy.
Strong IP, he said, was used by incumbents to block innovation and competition from would-be competitors and disruptors.
A strong software industry offers a weightless export that allows New Zealand to rise above the commodity fray of dairy, meat production and timber.
In other words, desperate to sign up to the TPP agreement, however bad, the New Zealand government seems willing to sacrifice 21st-century growth for the sake of shoring up 19th-century industries -- and to ride roughshod over democracy along the way. So much for the common but bogus claim that trade agreements like TPP or TAFTA/TTIP will not require laws to be changed.
from the I've-a-feeling-we're-not-in-Beijing-anymore dept
The smartphone sector is undergoing an upheaval at the moment, as Chinese manufacturers move up the global market share rankings. Already, the third, fourth and fifth places are occupied by Chinese companies: Huawei, Lenovo and Xiaomi. But it's the last of these that has emerged as the real star. Although Xiaomi was only founded in 2010, in 2014, the company sold 61 million phones, and hopes to sell 100 million in 2015. Much of that growth will come from outside China: Xiaomi has already started selling its products across Southeast Asia, especially in India, as well as in Mexico, Turkey, Russia and Brazil.
Now it is aiming to enter perhaps the toughest market of all: the US. But it knows that offering hugely-popular products at extremely competitive prices is not enough. If it wants to survive in the US -- never mind thrive -- there is one more thing that it must have, as this report in re/code explains:
Xiaomi international head Hugo Barra said on Thursday that the Chinese electronics company is looking to file more patents and strike more deals ahead of a launch into the U.S. market.
The move is essential if Xiaomi really wants to play in the U.S. and Europe, where intellectual property issues are taken seriously.
Xiaomi has already filed for 2,000 patents, Barra said in an interview with Bloomberg TV.
“Think of it as, like, a war chest of sorts,” Barra said, adding that the company is also systematically taking patent licenses, especially for standards-essential patents.
Well, "taking intellectual property issues" seriously is one way of putting it. You could also say that the US smartphone market has extremely high entry costs because of patent thickets, and that the only way to play there is to have your own patents that you can use as a bargaining chip with the other patent-holders. But it doesn't have to be this way. China's "gongkai" culture shows how rapid innovation can flourish in an environment where patents and copyright are largely ignored, and where every company builds on the work of others, and is built on in turn. And for those who think that the US approach is safer and easier to manage, it's worth considering the following comment in the re/code article:
Even if Xiaomi takes licenses for standards-essential patents from Ericsson and others, it still could face the type of legal action that Samsung faced from Apple.
In other words, companies that try to play strictly by US rules find out that the rules are not as clear-cut as they might seem. It will be interesting to see how Xiaomi fares in this strange new world, and whether the "war chest" it is busily acquiring is enough to protect it from the worst excesses of patent monopolies.
from the who-cares-if-it-was-beneficial,-it-passed,-didn't-it? dept
As Techdirt has noted many times, one of the things that makes it hard to engage sensibly with so-called "trade negotiations" like TPP and TAFTA/TTIP is the secrecy surrounding them. Aside from the odd leak and any crumbs of information that drop from the negotiating table, one of the few things that are made public is the predicted benefit of participating in these agreements. To hear the politicians tell it, the models employed for this purpose prove that a country would be crazy not to sign up to whatever deal they are currently pushing. Given the central role played by these econometric models, you'd think more would be done to refine them and check whether they get it right. Here's what has happened on this front in Australia, as reported by the Sydney Morning Herald:
On the eve of negotiations expected to finalise a giant trans-Pacific free trade agreement with 11 of Australia's neighbours, the Department of Foreign Affairs has revealed that none of Australia's existing agreements has been subjected to an independent analysis to work out whether the claims made for it have stacked up.
That's rather strange, since Australia signed its Closer Economic Relations agreement with New Zealand 32 years ago and its free trade agreement with the US 11 years ago, so it's not as if the government there hasn't had time to collect and analyze the numbers. For the second of those agreements, we do have an independent investigation into how predictions compared with reality:
Ahead of the US Australia Free Trade Agreement the department published modelling conducted by the Centre for International Economics that said it would boost Australia's gross domestic product by $5.7 billion. A study conducted a decade later by the Australian National University found it had boosted trade not at all.
Given that sobering fact, and research that indicates trade agreements with Mexico and South Korea turned out to be equally disastrous for the US, you have to admire the shamelessness of governments that continue to commission these obviously-flawed models and trumpet their results, only to forget about them completely once they've done the job and the relevant agreement is signed and ratified.
Techdirt has been covering discussions to establish a harmonized pan-African legal framework for the protection of plant breeders' rights for a couple of years now, in particular the fears that this will benefit Western seed companies the most, at the expense of Africa's plant diversity and seed independence. As the African Regional Intellectual Property Organization (ARIPO) website reports, what is now known as the "Arusha Protocol for the Protection of New Varieties of Plants" has been agreed:
The ARIPO Protocol for the Protection of New Varieties of Plants has been adopted by the Diplomatic Conference that was held in Arusha, the United Republic of Tanzania on July 6, 2015.
The Protocol seeks to provide Member States with a regional plant variety protection system that recognizes the need to provide growers and farmers with improved varieties of plants in order to ensure sustainable Agricultural production.
Eighteen Member States of the Organization were represented at the Diplomatic Conference namely; Botswana, The Gambia, Ghana, Kenya, Liberia, Lesotho, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda Zambia and Zimbabwe.
As well as those African nations, a number of international organizations took part in the discussions: the World Intellectual Property Organization, the EU's Community Plant Variety Office, France's National Seeds and Seedlings Association, the United States Patent and Trademark Office and the International Union for the Protection of New Varieties of Plants. The inclusion of representatives from the US, EU and French plant organizations is indicative of some of the key driving forces behind the Arusha Protocol. That stands in stark contrast to a rather significant absence from the talks: the Alliance for Food Sovereignty in Africa (AFSA), an association that champions "Small African Family Farming/Production Systems based on agro-ecological and indigenous approaches." AFSA writes on its site:
Despite AFSA's well-established track record of constructive engagement with ARIPO on the Draft ARIPO PVP Protocol, and despite it being a Pan African network of African regional farmers and NGOs, working with millions of African farmers and consumers, AFSA was purposely excluded from the Arusha deliberations.
This is not the first time that AFSA has been unwelcome at ARIPO meetings, as we reported last year. That's presumably because AFSA has long-standing concerns about the whole move towards giving plant breeders greater rights in Africa. Here's its view on the new Protection of New Varieties of Plants (PVP) protocol:
The Arusha PVP Protocol is part of the broader thrust in Africa to ensure regionally seamless and expedited trade in commercially bred seed varieties for the benefit, mainly, of the foreign seed industry. Multinational seed companies intend to lay claim to seed varieties as their private possessions and to prevent others from using these varieties without the payment of royalties.
Germplasm developed by farming households over centuries is increasingly under threat of privatisation; and ecologically embedded farming practices risk being destabilised and dislodged. The broader modernisation thrust of which the Arusha PVP Protocol is an intrinsic part, is designed to facilitate the transformation of African agriculture from peasant-based production to inherently inequitable, inappropriate and ecologically damaging Green Revolution/industrial agriculture. Such a transformation will lead to many farming households being threatened with marginalisation or extinction, without alternative options for survival.
While AFSA is worried that the new Protocol will harm traditional cultivation practices, supporters claim that it will lead to more and better plant varieties being created, to the benefit of farmers. That would obviously be welcome, assuming it isn't simply a cover for multinational companies to privatize and industrialize Africa's food production. Unfortunately, the refusal to allow the participation of representatives of traditional African farming in drawing up the new Arusha Protocol has to raise fears that this is precisely what is planned.
Techdirt has written a couple of times about European sensitivities regarding data protection, in particular when it comes to privacy rules requiring local storage of personal data. It turns out that Europe is not alone in its concern that agreements like TAFTA/TTIP and TISA could jeopardize this approach. An article in The Tyee points out that two of Canada's provinces -- British Columbia and Nova Scotia -- have requirements that sensitive personal data must be stored locally, and that they are likely to fall victim to TPP because the US insists the laws are "non-tariff barriers":
U.S. negotiators are pushing hard to eliminate national laws in TPP countries that require sensitive personal data to be stored on secure local servers, or within national borders. This goal collides with the B.C. Freedom of Information and Privacy Act and similar regulations in Nova Scotia, which are listed as "foreign trade barriers" in a 2015 United States Trade Representative (USTR) report.
According to that report, the B.C. privacy laws "prevent public bodies such as primary and secondary schools, universities, hospitals, government-owned utilities, and public agencies from using U.S. services when personal information could be accessed from or stored in the United States."
Irrespective of your views on whether such local storage requirements are reasonable or not, what's significant here is that TPP, ostensibly a trade agreement, may force Canada to repeal local privacy laws. That fact underlines why the secret nature of the negotiations is profoundly anti-democratic: matters are being decided behind closed doors that should rightly be debated openly.
Data flows are just one example: TPP and other "trade" agreements like TAFTA/TTIP and TISA will have profound implications for many aspects of everyday life in signatory countries. And yet the public in those nations will be able to provide almost no input into the negotiating process, largely on the grounds that the discussions are "just" technical adjustments to trade rules. Indeed, most people aren't even aware of what is being done in their name: a recent poll suggests that three in four Canadians have never heard of TPP, so the chances that a massive wave of public outrage might yet save those local data privacy laws are pretty close to nil.