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Posted on Techdirt - 22 May 2015 @ 3:16pm

Monsanto And Syngenta About To Receive Dozens Of Patents On Unpatentable Plants

from the literally-above-the-law dept

Last month we wrote about the strange case of unpatentable plants becoming patentable in Europe thanks to a decision from the European Patent Office's Enlarged Board of Appeal. That cleared the way for companies to obtain such patents, and according to this post on the "no patents on seeds" site -- I think you can probably work out where its biases lie -- that's about to happen:

the European Patent Office (EPO) is about to grant 30 patents on plants derived from conventional breeding to Monsanto and its affiliated companies. The Swiss company Syngenta can expect to receive around a dozen patents very soon. Many of the patents claim vegetables such as tomatoes, peppers, cauliflower, carrots and lettuce.
Leaving aside the important question of whether it should be possible to obtain patents on plants, there are some other issues. For example, Monsanto is currently trying to acquire Syngenta. Although its initial offer of $45 billion was turned down, the view seems to be that Monsanto will go higher because it needs Syngenta's broad portfolio of products to address the growing concerns over glyphosate, which lies at the heart of much of its range. According to a recent report, Monsanto is willing to divest itself of all of Syngenta's "seeds and genetic traits businesses as well as some overlapping chemistry assets to win regulatory approval", but it's not clear whether that would include patents on plants. If it didn't, all of the imminent plant patents mentioned above might end up with Monsanto, which would represent a dangerous concentration of power in this important new area.

The more serious problem concerns the EPO. The decision to extend patentability to plants was taken by the EPO's Enlarged Board of Appeal, which should raise conflict of interest concerns, since the EPO is funded by patent fees. That wouldn't be a serious problem if there were a higher court to which appeals could be made. But as the EPO told Intellectual Property Watch:

Decisions made by the Enlarged Board of Appeal cannot be challenged before another judiciary.
One body that does have the power to revise EPO decisions is the Administrative Council of the EPO, but it is made up largely of senior patent officials from the 40 or so member states of the EPO, and so it is naturally pro-patent and thus unlikely to interfere with extensions to patentability. In fact, there is no democratically-elected body at all that could force the EPO to change its policy on anything. Worse, the EPO is literally above national laws, since its offices enjoy diplomatic immunity of the kind given to embassies. As Wikipedia explains it:
The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office.
While that's the case -- and there's very little prospect of it changing in the short-term -- extensions of patentability to non-patentable matter are not just likely to happen, but will be well-nigh impossible to reverse.

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Posted on Techdirt - 22 May 2015 @ 11:44am

Russia Threatens To Block Access To Facebook, Google And Twitter Unless They Obey New Bloggers Law

from the getting-serious dept

Last year, Techdirt wrote about yet another of Russia's new laws aimed at taming the troublesome internet world. Its most striking feature was that bloggers with more than 3,000 visitors a day were required to register on a special list, and to abide by general mass media restrictions. We noted then that blogs located overseas were not covered by the new law. But according to this report in The Guardian, based on a story in Izvestia, it seems that the law is now being applied to foreign service providers too: Facebook, Google and Twitter are all being threatened with fines or even bans for non-compliance:

The [Russian communications agency's] deputy director, Maksim Ksenzov, had issued a warning to the three companies on 6 May, telling them they were in violation of the bloggers law because they had not provided requested data on the number of daily visitors to several users' pages, as well as information allowing the authorities to identify the owners of accounts with more than 3,000 daily visitors.
The companies are threatened with fines, but these are relatively modest: up to 300,000 roubles ($6,000) for the first offense. Subsequent infringements lead to bigger fines or a ban on the website for up to 30 days. As The Guardian points out:
If the companies did not take steps to delete from their sites "information containing calls to participate in mass rioting, extremist activities" or unsanctioned public events, the watchdog would "limit access to the information resource where that information is posted", Ksenzov warned.
The problem is that regional Internet service providers might not be able to provide much granularity when limiting access to these pages, leading to services from the companies concerned being blocked completely in those areas. As the Izvestia article explains, although the Russian authorities are very keen for the US companies to obey Russian law, and point out that they are simply following in the footsteps of the the European Commission, it's not clear how they could force compliance or collect any fines they imposed.

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Posted on Techdirt - 21 May 2015 @ 1:00am

Certification: How The US Demands Even More Concessions After Trade Agreements Have Been Signed And Ratified

from the enough-is-never-enough dept

The battle raging over the fast track bill is essentially one about control: who gets the final say over so-called trade agreements like TPP and TAFTA/TTIP. If the US President is not given trade promotion authority, it is possible that Congress will demand changes to the negotiated text; with fast track, it will be a simple up or down vote. That's also the situation in other countries participating in the negotiations: once the text is agreed upon, they can essentially accept it or reject it. However, a group of senior politicians in five of the TPP nations point out that after those votes, the US can still demand further concessions from its partners thanks to a process known as certification:

Senior parliamentarians from five countries negotiating the Trans-Pacific Partnership (TPP) agreement have signed an open letter urging their political leaders to protect their nations’ sovereignty from the United States' process of certification.
Here's how that works:
The US withholds the final steps that are necessary to bring a trade and investment treaty into force until the other party has changed its relevant domestic laws and regulations to meet US expectations of its obligations under the agreement. In the past, US 'expectations' have gone beyond what is in the actual text, and even included matters that were rejected in negotiations.

US officials can define another country's obligations; become directly involved in drafting that country's relevant law and regulations; demand to review and approve proposed laws before they are presented to the other country's legislature; and delay certification until the US is satisfied the new laws meet its requirements.
In other words, even though other nations might think that after their agreement and ratification of the text, everything is fixed, the US reserves the right to come back and demand changes to domestic laws and regulations so as to ensure that the implementation is as it wishes. That's no mere theoretical option: it has been used against both Peru and Australia recently. In the latter case, the US was unhappy with the legislation enacting the Australia-US free trade agreement (AUSFTA), and demanded that Australia bring in a supplementary law that actually went beyond the terms of AUSFTA. Even then, the US reserved its right to take legal action if it felt that Australia had still not gone far enough.

The publication of the open letter (pdf) to the political leaders of the TPP nations is a timely reminder that however much sovereignty they might be willing to give up during the negotiations for the sake of supposed gains, the US may want even more concessions -- without, of course, granting other countries the same prerogative.

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Posted on Techdirt - 20 May 2015 @ 1:49pm

New Whistleblower Claims UK's Nuclear Submarine Fleet A 'Disaster Waiting To Happen'

from the inspiring-others dept

There were, of course, many whistleblowers before Edward Snowden. But it is undeniable that his sudden appearance across the world's news outlets two years ago has ignited a debate about the role, rights and responsibilities of whistleblowers. One manifestation of this new interest is the creation of the Courage Foundation, dedicated to helping them:

The Courage Foundation is an international organisation that supports those who risk life or liberty to make significant contributions to the historical record. We fundraise for the legal and public defence of specific individuals who fit these criteria and are subject to serious prosecution or persecution. We also campaign for the protection of truthtellers and the public's right to know generally.
Currently the Courage Foundation is supporting two whistleblowers: Edward Snowden and Jeremy Hammond. So news that it has set up an emergency fund to help a new, and hitherto unknown, whistleblower, is significant. Here's the background:
Able Seaman William McNeilly is a 25-year-old British Engineering Technician Weapons Engineer Submariner who has blown the whistle on major safety risks and cover-ups within the British Royal Navy's Trident nuclear weapons programme, stating, "We are so close to a nuclear disaster it is shocking, and yet everybody is accepting the risk to the public."
Here are some of his claims:
Among the most startling of McNeilly’s revelations include the fact that three missile launch tests failed, missile safety alarms were ignored, torpedo compartments were flooded and bags were not properly checked for security risks. He also claims that [UK nuclear submarine] HMS Vanguard crashed into a French submarine in February 2009. McNeilly says there was a "massive cover up of the incident. For the first time the no personal electronic devices with a camera rule was enforced." At the time, the Guardian reported that "the Ministry of Defence initially refused to confirm the incident" and that Vanguard suffered mere "scrapes", but McNeilly says one officer told him, "We thought, this is it -- we’re all going to die."
You can read the long and detailed document written by McNeilly on a dedicated Wikileaks page. It includes a comment attributed to him that may sound familiar:
"Please make sure this information is released. I don't want to be in prison without anyone knowing the truth."
That's pretty much what Snowden said when he went public. Although there's no evidence that McNeilly was inspired by Snowden, it would have been hard for him to avoid the huge publicity around the leaks over the last two years. It would be interesting to know whether that played any part in his decision to publish his statement. Unfortunately, unlike Snowden still ensconced in his Russian exile, it looks almost certain that McNeilly will indeed be going to prison:
A Royal Navy spokeswoman said: “We can confirm that AB McNeilly was apprehended last night and is now in the custody of the Royal Navy police at a military establishment in Scotland where he is being afforded the duty of care that we give to all of our people.
The spokesperson went on to say:
“The Royal Navy disagrees with McNeilly’s subjective and unsubstantiated personal views but we take the operation of our submarines and the safety of our personnel extremely seriously and so continue to fully investigate the circumstances of this issue.”
As that makes clear, the UK authorities are trying to play down McNeilly's serious allegations as "subjective and unsubstantiated personal views" in the hope that public interest in the story will wane. But his decision to publish the claims and accept the consequences -- like Snowden -- looks as if it will bring about some scrutiny, not least because UK politicians have taken up his cause alongside the Courage Foundation, which is helping him with his defense costs. That's key, since it may encourage yet more whistleblowers to come forward hoping to achieve the same result.

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Posted on Techdirt - 18 May 2015 @ 11:36am

Tired Of Losing Legal Challenges To Its Surveillance, UK Government Secretly Changes Law So It Can Win

from the that's-cheating dept

Against all the odds, legal challenges to UK surveillance are succeeding, as Techdirt has reported. At the forefront of bringing cases against GCHQ is the rights group Privacy International. In May 2014 it asserted that GCHQ's activities were illegal under the UK's Computer Misuse Act (CMA), which criminalizes breaking into digital systems. A year later, and just hours before the Investigatory Powers Tribunal hearing of Privacy International's complaint against GCHQ, the UK government revealed the following:

only a few weeks after the claim was filed, the [UK] Government quietly introduced legislation on 6 June 2014 that would amend the CMA to provide a new exception for law enforcement and GCHQ to hack without criminal liability. The change not only affects Privacy International's claim, but also grants UK law enforcement new leeway to potentially conduct cyber attacks within the UK.
That is, the UK government was implicitly admitting that GCHQ's activities were, once again, illegal, but fixed that problem with the simple expedient of changing the law to make them legal. That on its own is questionable, although some might say that spies and the police need to have immunity when carrying out certain authorized acts. But the real issue here is another: the fact that this change was pushed through with none of the usual scrutiny or debate accorded to laws with important effects. As Privacy International explains, although the UK government published an explanatory note about the proposed amendment, it neglected to mention its true impact. Moreover:
It appears no regulators, commissioners responsible for overseeing the intelligence agencies, the Information Commissioner's Office, industry, NGOs or the public were notified or consulted about the proposed legislative changes. There was no published Privacy Impact Assessment. Only the Ministry of Justice, Crown Prosecution Service, Scotland Office, Northern Ireland Office, GCHQ, Police and National Crime Agency were consulted as stakeholders. There was no public debate.
This is essentially secret law-making, where the only people consulted are the ones who will benefit. That's troubling at the best of times, but especially so in the context of a government abusing its powers to avoid yet another embarrassing defeat in the courts.

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Posted on Techdirt - 15 May 2015 @ 7:39pm

Over 1000 Japanese Citizens Band Together To Sue Their Government Over Participation In TPP

from the a-bit-late-now? dept

Back in March, we reported on a campaign in Japan seeking to raise awareness about the extreme copyright provisions in TPP. Of course, making copyright even more unbalanced is just one of many problems with TPP, and arguably not even the worst. Now activists in the country have launched a much broader attack on the whole agreement by filing a lawsuit against the Japanese government in an attempt to halt its involvement in the talks. As Mainichi reports:

A total of 1,063 plaintiffs, including eight lawmakers, claimed in the case brought to the Tokyo District Court that the Trans-Pacific Partnership pact would undermine their basic human rights such as the right to live and know that are guaranteed under the Constitution.

The envisaged pact would not only benefit big corporations but jeopardize the country's food safety and medical systems and destroy the domestic farm sector, according to their written complaint.
As well as oft-voiced concerns that Japan's key agricultural sector would be harmed, the plaintiffs are also worried that TPP will push up drug prices -- something that is a big issue for other nations participating in the negotiations. The new group rightly points out that corporate sovereignty jeopardizes the independence of Japan's judicial system, and said that the secrecy surrounding the talks:
violates the people's right to know as the document is confidential and the negotiating process will be kept undisclosed for four years after the agreement takes effect.
Although it is hard to judge how much of a threat this move represents to Japan's continuing participation in TPP, the legal firepower behind it is certainly impressive: according to the Mainichi story, there are 157 people on the legal team. At the very least, it shows that resistance to TPP and its one-sided proposals is growing -- and not just in the US. But you can't help thinking it would have been a good idea for concerned Japanese citizens to have made this move earlier, rather than leaving it to the eleventh hour, with TPP close to the finishing line.

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Posted on Techdirt - 15 May 2015 @ 1:05am

UK Government Review Says Use Prizes, Not Patents, To Produce Much-Needed New Antibiotics

from the or-it-will-cost-us-$100-trillion dept

A couple of years ago we wrote about how the patent system creates perverse incentives for companies that make antibiotics to exploit them as fully as possible while they are still under patent. That, in its turn, drives antibiotic resistance, which is becoming an extremely serious problem. At the end of our previous post, we noted that this situation would be a perfect opportunity to try something different, such as offering some form of prize to pharmaceutical companies that come up with new antibiotics. Remarkably, the UK government's Review on Antimicrobial Resistance (pdf) has just suggested exactly that:

we want to make antibiotics R&D commercially sustainable so that the field can attract the best minds from research organisations, small biotech companies, large firms or not-for-profit entities. To do that we propose a system by which a global organisation has the authority and resources to commit lump-sum payments to successful drug developers. Payment would have to be set against selective criteria agreed in advance. Such an approach would 'de-link' the profitability of a drug from its volume of sales, supporting conservation goals by eliminating the commercial imperative for a drug company to sell new antibiotics in large quantities -- a key factor in contributing to the development and spread of resistance.
As that notes, the key to this approach is to "de-link" profitability from sales volume so there is no business pressure to over-use new antibiotics. One way to do that is to offer not a patent, but a hefty lump sum to any company that comes up with a new antibiotic. Another benefit is that the scale of the money on offer -- around $2 billion per new antibiotic -- is likely to encourage participation from companies all around the world, especially startups, since the scheme would be open to all. The UK review suggests supporting innovative approaches directly:
A global AMR [antimicrobial resistance] Innovation Fund of around 2 billion USD over 5 years would help boost funding for blue-sky research into drugs and diagnostics, and get more good ideas off the ground. Big pharma should have a role in paying for this innovation fund: it needs to look beyond short-term assessments of profit and loss, and act with ‘enlightened self-interest’ in tackling AMR, recognising that it has a long term commercial imperative to having effective antibiotics, as well as a moral one.
The 44-page document goes into more detail about the thinking behind the proposed scheme, how it might be implemented in practice, and the problems it would face. It's a bold approach, but given the continuing failure of the current patent-based system to come up with new antibiotics, it's one that governments around the world need to consider seriously. After all, as the review warns:
if we fail to act on AMR, then an additional 10 million lives would be lost each year to drug-resistant strains of malaria, HIV, TB, and certain bacterial infections by 2050, at a cost to the world economy of 100 trillion USD.
Compared to that figure, the few tens of billions of dollars needed to implement the new approach has to be a bargain.

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Posted on Techdirt - 14 May 2015 @ 9:42am

Wyoming Makes Reporting Environmental Disasters Illegal

from the ag-gag-embiggened dept

Techdirt has written several times about so-called "ag-gag" laws, which have the strange effect of making it illegal for members of the public to expose animal abuse on farms. Slate has a fascinating report about how Wyoming is bringing in its own kind of ag-gag law that is so wide in its reach that it could make taking photos in Yellowstone illegal:

photos are a type of data, and the new law makes it a crime to gather data about the condition of the environment across most of the state if you plan to share that data with the state or federal government.
The specificity of that restriction sounds absurd. Why on earth would anyone want to prevent environmental data being gathered? Here's why:
The state wants to conceal the fact that many of its streams are contaminated by E. coli bacteria, strains of which can cause serious health problems, even death.
The reason the state is trying to do that is because the E. coli in question comes from cows, and cows have clout in Wyoming:
Acknowledging that fact could result in rules requiring ranchers who graze their cows on public lands to better manage their herds. The ranching community in Wyoming wields considerable political power and has no interest in such obligations, so the state is trying to stop the flow of information rather than forthrightly address the problem.
The law is framed broadly: it makes it a crime to "preserve information in any form" about "open land" if there is any intention to submit it to a federal or state agency. That means that if you discovered a major environmental disaster in Wyoming, no matter how life-threatening, you had better keep information about it to yourself. As the Slate post points out:
By enacting this law, the Wyoming legislature has expressed its disdain for the freedoms protected by the First Amendment and the environmental protections enshrined in federal statutes. Today, environmentally conscious citizens face a stark choice: They can abandon efforts to protect the lands they love or face potential criminal charges.
Now that's what I call an ag-gag law.

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Posted on Techdirt - 14 May 2015 @ 1:04am

Here's A Serious Alternative To Big Pharma: Cuba

from the doing-more-with-less dept

Techdirt often points out that the current system of funding the creation of life-saving drugs is broken. But the obvious question is: what can you put in its place? The answer includes things like prizes, but also, it seems, Cuba:

Cuba has for several years had a promising therapeutic vaccine against lung cancer. The 55-year trade embargo led by the US made sure that Cuba was mostly where it stayed.
Leaving aside the fact that politics probably got in the way of saving lives (again), the more interesting issue is how Cuba managed to come up with a lung cancer vaccine. Here's the explanation from the Wired article quoted above:
Though the country is justly famous for cigars, rum, and baseball, it also has some of the best and most inventive biotech and medical research in the world. That's especially notable for a country where the average worker earns $20 a month. Cuba spends a fraction of the money the US does on healthcare per individual; yet the average Cuban has a life expectancy on par with the average American. "They’ve had to do more with less," says [Roswell Park Cancer Institute's CEO] Johnson, "so they’ve had to be even more innovative with how they approach things. For over 40 years, they have had a preeminent immunology community."
The cancer vaccine is not the only important drug Cuba has managed to develop with its limited resources. According to Wired, Cuban scientists have come up with their own vaccines for meningitis B and hepatitis B, and monoclonal antibodies for kidney transplants. That suggests the success of the "do more with less" approach isn't just a one-off, but can be applied consistently to deliver results.

That's important, and not just for people who desperately need new drugs. Big pharma is one of the main industries pushing pseudo-trade agreements like TPP and TTIP. Some of the worst elements in those are driven by that industry's desire to obtain longer patent protection and delay the entry of generics, with the justification that Big Pharma "needs" these extended monopolies to pay for costly research into novel drugs. Alternative approaches like Cuba's, which require far lower investments, offer the hope not just of doing "more with less", but also of calling the pharmaceutical giants' bluff that only they can come up with life-saving new treatments.

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Posted on Techdirt - 13 May 2015 @ 3:57am

Wikileaks Releases Transcript Of German Inquiry Into Growing NSA Spy Scandal

from the not-dead-yet dept

Compared to its early days, when releases of material like Collateral Murder dominated public discourse for weeks, Wikileaks is now only a shadow of its former self, eclipsed largely by Snowden's leaks. That's understandable, perhaps: Julian Assange has been holed up in the Ecuadorian Embassy in London for nearly three years, and it has been hard for the organization to raise funds to pay Wikileaks' running costs. However, that reduced visibility and activity doesn't mean it's not still releasing valuable material, particularly in the area of trade agreements. Today, it has published another interesting set of documents, this time from the field of surveillance:

WikiLeaks releases ten months of transcripts from the ongoing German Parliamentary inquiry into NSA activities in Germany. Despite many sessions being technically public, in practice public understanding has been compromised as transcripts have been withheld, recording devices banned and reporters intrusively watched by police.

WikiLeaks is releasing 1,380 pages of transcripts from the unclassified sessions, covering 34 witnesses – including 13 concealed witnesses from Germany's foreign intelligence agency, the Bundesnachrichtendienst (BND). The transcripts cover from the start of the inquiry in May 2014 through to February 2015.

WikiLeaks has also written summaries of each session in German and English as the inquiry, due to its subject matter, is of international significance.
This underlines an important aspect of Wikileaks' work: the fact that it seeks to make the documents it releases useful by providing commentary, summaries and indexes. Those valuable additions are often overlooked, but can play a crucial role in helping people understand the raw material provided.

The German parliamentary inquiry has been rumbling on for a year now, but has gained renewed importance with the recent revelations that the German spy service, the BND, has been searching through its databases using "selectors" (keywords) provided by the NSA, with apparently no oversight. Not only were many of the targets for those selectors EU citizens, but they included senior politicians and industry figures, too. Here's Wikileaks' summary:

One of the biggest scandals to emerge from the inquiry so far is the recent "selector" spy target list scandal where a BND official revealed that the agency was expected to spy on thousands of targets at the instruction of the NSA. These targets included members of the French government and European industry. This put into question Germany's suitability in taking a leadership role in the European Union. It also showed that international co-operation on mass surveillance, which has been marketed in public as a counter-terrorism measure, is in practice also used by the United States for the purposes of industrial espionage and geopolitical advantage vis-a-vis members of the European Union. The committee requested the full "selector" list of targets provided to the BND by the NSA. The committee was told that the US would first need to be asked permission for the list to be revealed to the committee (even in confidence). Last Wednesday, 6 May 2015, when the answer was meant to be delivered, stalling tactics were used, leaving the German public, and the Parliamentary inquiry, without any ability to understand what their own secret services are up to.
The "selector" scandal has now reached the highest political echelons in Germany, with Angela Merkel's earlier outrage over NSA spying -- not least against herself -- looking hypocritical at best, or dangerously naive at worst. Wikileaks' latest release therefore comes at just the right moment for those seeking to understand what has been going on in Germany. It's also a timely reminder that Wikileaks is still able to perform an important service in this respect, despite its straitened circumstances.

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Posted on Techdirt - 13 May 2015 @ 1:00am

US Says 'No' To Corporate Sovereignty Reform; Hungary Says 'No' To Corporate Sovereignty

from the clash-of-civilizations dept

Last week we wrote about an attempt by the EU's Trade Commissioner, Cecilia Malmström, to "save" the corporate sovereignty chapter in TAFTA/TTIP as more people wake up to its dangers, and resist its inclusion. Along with tinkering at the edges, her proposal for reform did have one more substantive idea: to create "a permanent multilateral investment court."

The intention was presumably to address the key objections to investment-state dispute settlement (ISDS) tribunals -- that they are secret, unpredictable and have no conflict of interest rules or appeals process -- by importing some of the key strengths of traditional courts, which are open and impartial, follow precedent and allow appeals. Of course, that approach begs the question why new courts are needed at all, when national courts already exist. But it seems that we won't be having a debate on that particular issue, since the US has lost no time pouring cold water on the whole idea, as AFP reports:

A senior US official rejected Monday an EU proposal to create an international investment court that was aimed at resolving one of the disputes holding up their free trade deal.
The comments by US Undersecretary for International Trade at the Commerce Department, Stefan Selig, include the following claim:
"The criticisms that they undermine governments' right to regulate, I think are just misguided," Selig said during a visit to Paris when asked about Malmstroem's proposals.
As I wrote last year, far from being "misguided," the past experience with corporate sovereignty shows that those criticisms are entirely justified. Selig then goes on to say:
The United States believes the ISDS mechanism "increases the security of companies willing to make investments and arguably makes that country, whether it's the United States or any country in Europe, a more attractive investment destination."
But again, that assertion is belied by the facts. According to the European Commission's recently-updated figures, in 2013, the total US investment in the EU was €1.65 trillion; the EU investment in the US was even higher -- €1.69 trillion. The size of these numbers is the best indication that companies are more than happy to send money across the Atlantic, even without ISDS.

The US refusal even to consider a major reform of corporate sovereignty poses big problems for the EU negotiators. It's clear that the strategy was to try to win over critics of ISDS by promising that its flaws -- admitted even by the European Commission -- would be fixed through the creation of a new court. With that option no longer on the table, it looks increasingly like TTIP's ISDS will simply involve some minor tweaks.

However, last week another country was making its position on corporate sovereignty clear, reported here by the Budapest Business Journal:

Hungary is against the inclusion of the investor-state dispute settlement (ISDS) clause in the Transatlantic Trade and Investment Partnership (TTIP) free trade agreement between the United States and the European Union, [Hungary's] Foreign Ministry state secretary István Mikola said yesterday following a convention of foreign trade ministers in Brussels.
Since TAFTA/TTIP is what is known as a "mixed agreement," both the EU and all the member states must ratify it before it comes into force. If Hungary refuses to do that on the grounds that it contains ISDS, it's possible the whole deal would simply collapse (it's not clear what would happen in practice, because this is largely uncharted territory). Moreover, Hungary is not the only country that is likely to vote down TTIP if it includes ISDS:
Mikola said that Hungary's views on the ISDS clause are shared by 6-7 other EU member states, but he did not name those states.
That's further evidence that the central stumbling block for TTIP is corporate sovereignty. Indeed, it seems that ISDS is fast becoming as toxic as ACTA three years ago, when politicians rushed to dissociate themselves from the idea before rejecting it completely.

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Posted on Techdirt - 12 May 2015 @ 1:15am

EU's New 'Scrutiny Board' To Implement Key US Demands For TAFTA/TTIP Even Before It's Completed

from the amazing-coincidences dept

Earlier this year, we discussed an interesting leak from December 2013 revealing discussions about the creation of a new transatlantic Regulatory Council as part of the TAFTA/TTIP agreement currently being negotiated. The central idea was to give a new body powers to vet proposed laws and regulations on both sides of the Atlantic, with a view to promoting trade and regulatory convergence -- two of TTIP's stated aims. Further leaks this year confirmed that negotiators are still working on implementing this idea in the agreement.

Now Corporate Europe Observatory (CEO) has obtained yet another leak, but not one from the TTIP talks. Instead, this is an internal document from the European Commission, which proposes setting up a similar regulatory body for the EU, independently of TTIP:

A new bureaucratic body is to have considerable power to stop the Commission from tabling proposals that don't adhere to a set of business-friendly principles. Furthermore, the Commission wants to be able to pull an "emergency brake" if its proposals are significantly changed in the "wrong" direction by either the Council or the European Parliament -- could be laws improving working conditions, could be environmental regulation. The leaked document is entitled "Better regulation for better results -- An EU agenda", ostensibly to be released later in May.
One aspect of the proposed system is that all new regulations would require impact assessments. Although that's sensible enough, there's a catch: if modifications are made to proposed regulations later on -- for example by the European Parliament, which frequently amends texts in this way -- that fact could be used to put a brake on the legislative process pending further examination:
Imagine if the European Parliament agreed with the Council on a compromise that would introduce more ambitious social or environmental goals to a law proposed by the Commission, for instance if a proposal that would ban a few "endocrine disruptors" due to a damaging effect to children would be extended to cover more substances. Such a scenario would then allow the Commission to pull the brake and call for an independent investigation. This would enable any business lobby coalition to regroup and focus on a particular outcome of the assessment, it could slower the procedure substantially, and possibly change the upcoming law to its original, less ambitious form.
This would clearly act as a disincentive for MEPs to try to improve legislation, since doing so would lead to delays and more lobbying that might make it even worse. In this way, the proposed system would have a chilling effect on the more democratic parts of the European Union's legislative process, and enhance the powers of the (unelected) European Commission.

Another important element of the proposal that is not quite what it seems concerns transparency:

It is striking how much the leaked document goes on about public consultation and transparency. “Lighten the Load – Have Your Say” reads the appealing slogan, depicting an ostensibly new style of open governance from the Commission, where business and citizens are to be able to comment again and again on a proposal at almost every stage of the decision process, starting from the very first inception of an idea.
That's misleading because of parallel moves by the European Commission to strengthen and broaden the protection of "trade secrets," as another report by CEO reveals. In practice, then, what greater "transparency" would really mean would be greater opportunities for businesses to lobby during all phases of drawing up new laws and regulations. The public, by contrast, would not have access to the full range of materials, some of which would be deemed "trade secrets." What's striking is that this one-sided kind of transparency is exactly what the US is asking for in TAFTA/TTIP:
This deregulatory push is also clearly related to TTIP, where both businesses and the US government have asked for more "transparency" and "stakeholder participation" in the EU at the very early stages of the legislative process, in fact well before a proposal is even presented to decision-making bodies.
Another key TAFTA/TTIP demand from the US side is the increased use of impact assessments -- just as the new Scrutiny Board would require:
TTIP will boost the use of impact assessments, and will introduce an emphasis on the effect new legislative proposals might have on US companies, on whether it is in sync with US rules, and whether it supersedes international standards.
This "coincidence" suggests that the European Commission is already working on proposals that will meet US demands in TTIP, so that by conceding them -- in theory -- EU negotiators can obtain some of their key goals in return. That may already have happened elsewhere: there is speculation that one reason why the European Commission watered down its key Fuel Quality Directive (FQD) was to accommodate US demands in TTIP's energy chapter. As the TAFTA/TTIP negotiations proceed, we can probably expect to see more proposals from the European Commission that pre-implement US demands in this way.

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Posted on Techdirt - 7 May 2015 @ 1:04am

EU Tries To Put Lipstick On The Corporate Sovereignty Pig

from the not-forgetting-the-elephant-in-the-room dept

As Techdirt readers know, corporate sovereignty provisions in both TAFTA/TTIP and, increasingly, TPP, are emerging as one of the biggest stumbling blocks to public acceptance of these deals. The revolt against "investor-state dispute settlement" (ISDS), as corporate sovereignty is more officially known, began earlier for TTIP. Indeed, it was already so strong at the beginning of 2014 that the European Commission had to pull out corporate sovereignty completely from the negotiations, while it held a public consultation on the subject.

The hope was evidently that only lobbyists would bother answering the rather opaque and biased questions that were posed, but that's not how things worked out. An unprecedented 150,000 responses were received, the vast majority of which called for ISDS to be dropped. Despite that clear rejection, the European Commission signalled it would carry on anyway, but promising a "new and improved" version of ISDS.

The difficulty of addressing its flaws is evident from the fact that it is only this week that the EU's Trade Commissioner, Cecilia Malmström, was finally able to unveil a proposal that may prove the last chance for corporate sovereignty in TTIP. Even she is forced to admit that she has "concerns" about ISDS:

I have heard many concerns about dispute settlement between investors and states (ISDS) and the rules included in many of the existing agreements. To a large extent, I share these concerns, especially when it comes to the sometimes unclear definitions that leave too much room for interpretation and possible abuse, and the lack of transparency. I therefore made it one of my priorities to thoroughly modernise the traditional form of ISDS.
The full paper -- which is "without prejudice to the final position of the European Commission on the matters described within" -- runs to 12 pages, and has five basic elements (pdf). These are: a right for governments to regulate; improving the establishment and functioning of arbitral tribunals in order to increase legitimacy of the ISDS system; an appellate mechanism; addressing the relationship between ISDS and domestic courts; and moving towards a multilateral system. Malmström's own summary of the proposal is as follows:
I want to ensure fair treatment for EU investors abroad, but not at the expense of governments' right to regulate. Our new approach ensures that a state can never be forced to change legislation, only to pay fair compensation in cases where the investor is deemed to have been treated unfairly (suffered discrimination or expropriation, for example).

Our new approach also makes arbitral tribunals operate more like traditional courts, with a clear code of conduct for arbitrators. It furthermore guarantees access to an appeal system. And, as a medium term goal, it sets out to work towards the establishment of a permanent multilateral investment court.
Already, there are several analyses of why these don't address the many and deep problems of corporate sovereignty chapters. For example, there's a detailed consideration by Gus Van Harten, entitled "A parade of reforms: the European Commission’s latest proposal for ISDS", where he concludes:
the most recent proposal (a) reflects a move away from essentially fake reforms to something potentially more meaningful but (b) is insufficient to satisfy the minimum criteria of independence, fairness, openness, subsidiarity, and balance, and (c) is not reliable until it is backed by clear language and a negotiating red line for any agreement providing for ISDS.
The analysis by the Seattle to Brussels Network, a large group of development, environment, human rights, women and farmers organisations, trade unions, social movements and research institutes, is, as you might expect, rather more scathing:
The Seattle to Brussels Network is of the opinion that the Commission's proposals do not contribute to any meaningful reform of the ISDS system. They 1) ignore the outcome of the Commission’s own public consultation on the issue; 2) do very little to address the fundamental problems of the ISDS system; 3) would dramatically expand the reach of ISDS, increasing the likelihood of claims against European governments; 4) are misleading in suggesting that the ISDS system was already meaningfully reformed in the recently concluded EU-Canada trade agreement (Comprehensive Economic and Trade Agreement, CETA) and would be significantly further improved in TTIP; and 5) ignore the elephant in the room: that there is no need for ISDS.
That last point is really crucial. According to the European Commission's own figures, even without corporate sovereignty rights, the total US investment in the EU in 2013 was €1.65 trillion; from the EU into the US it was €1.69 trillion. ISDS is an irremediably flawed solution to a problem that doesn't exist.

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Posted on Techdirt - 6 May 2015 @ 1:05am

Study: Mismarketing Of Patented Drugs Has Cost Society At Least $380 Billion

from the time-for-a-change dept

Here on Techdirt we've written many times about the problematic nature of drug patents. They are harmful both directly, in terms of the price distortions they cause and seek to spread to new markets, and indirectly, through the lobbying that the pharma industry deploys to strengthen and extend them, notably in trade agreements such as TPP and TAFTA/TTIP.

The standard justification for these patents is that they are needed to provide incentives for costly research and development of new drugs, something that Techdirt has been questioning for many years. A fascinating new paper entitled "Patent Monopolies and the Costs of Mismarketing Drugs" (pdf), by Ravi Katari and Dean Baker at the Center for Economic and Policy Research, explores yet another problem with pharma patents:

in the case of prescription drugs, there are also major costs associated with the enormous asymmetry between the knowledge available to drug companies and the knowledge available to patients and their doctors. As a result of this asymmetry of knowledge, drug companies will often be in a situation to earn large patent rents by concealing information that show their drugs are less effective than they claimed or possibly even harmful.

One way in which drug companies take advantage of this asymmetry is with "off-label" promotion of their drugs. An off-label use of a drug is one which has not been approved by the FDA. While doctors are free to prescribe drugs for off-label uses, drug companies are prohibited from promoting their drugs for off-label uses. If they want to get a drug approved for additional uses then they have to clear a path by seeking FDA approval. However, they routinely avoid this independent assessment by finding ways to promote their drugs for unapproved uses. Promotion of drugs for off-label uses is harmful to the public because it diminishes drug safety regulation, discourages companies from conducting or revealing internal safety studies, and incentivizes them to seek FDA approval for narrow "label use" that is easier to push through the approval process.
The bulk of the paper is concerned with quantifying those costs by looking at five high-profile cases of mismarketing. Here's the final result:
The cumulative costs associated with the increased morbidity and mortality associated with these drugs was $382.4 billion over the 14-year period from 1994–2008. This comes to just over $27 billion a year, an amount that is comparable to what the pharmaceutical industry claims to have been spending on research at the time.
As the paper's authors emphasize, this is only a rough figure, and is likely to underestimate the total negative consequences of this kind of rent-seeking behavior, since it is based on only a small subset of drugs, and uses conservative estimates for key quantities. More important than the specific figure are the policy implications. For example, the deliberate mismarketing is only possible because data is kept secret:
If, for example, this research was all in the public domain and carried through by researchers who had no direct financial interest in the sales of a drug, it is unlikely that they would go to elaborate lengths to misrepresent or conceal research findings, or that they would be successful if they tried. In other words, the costs documented here are the result of the incentives provided by patent monopolies in the same way that the research itself is motivated by patent monopolies.
At the very least, that's an argument for requiring that all research data and clinical trial information should be made freely available for others to analyze. The paper also points out that there are implications for TPP and TAFTA/TTIP:
One of the major goals of the United States in these and other trade pacts currently being negotiated is to strengthen patent and related protections for prescription drugs. The justification is that increased patent rents will provide a greater incentive to the pharmaceutical industry, leading to more innovation.
But as the present study shows, strengthening those protections is likely to encourage more rent-seeking behavior, increased mismarketing, and thus unnecessary deaths and greater costs to society -- hardly something to promote through trade agreements. Finally, the new research adds further weight to the argument that we need to find better ways of funding research into new drugs:
The fact that incentives from patent rents lead firms to promote drugs in ways that impose large costs on patients and society should raise additional questions about the desirability of patent protection as a mechanism for financing research. Other mechanisms for financing research have been proposed, such as a prize system or direct public funding. Of course the U.S. government already spends $30.9 billion annually funding biomedical research through grants administered by the National Institutes of Health, so direct public funding is already an integral part of the drug development process. The proposal is to expand this funding and have NIH’s mission extend to the development and testing of drugs. By having all research in the public domain and taking away the patent rents associated with marketed drugs, direct funding would both remove the incentive and hugely lessen the ability to misrepresent research in order to promote drugs for uses that may not be appropriate.
When so many lives and so much money are at stake, it's surely time to look at this idea more closely.

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Posted on Techdirt - 5 May 2015 @ 1:04am

1000-Year-Old Village Told To Stop Using Name Because Of Trademark Claim From Hotel Chain Founded There

from the base-ingratitude dept

Techdirt has covered its fair share of idiotic legal threats over trademarks, but the following example is spectacular even for a field that has many superb examples of corporate bullying. It concerns the village of Copthorne (population 5,000), in the English county of West Sussex. It's rather well established: it's been around for a thousand years, and is mentioned in the Domesday Book, which was compiled in 1086. Recently, though, its village association was threatened with legal action for using the name 'Copthorne' on its Web site, as the Plymouth Herald newspaper reports:

A residents' association in the village of Copthorne was threatened with legal action by a multinational hotel chain founded there -- for using the name Copthorne.

Brand protection officers acting on behalf of Copthorne Hotels, which has a large hotel in Plymouth, wrote to the small local group -- saying it was infringing its trademark.
As that notes, the hotel chain took its name from the village where it was founded. But there's no sign of gratitude for that in the threatening letter the residents' association received from Millennium & Copthorne International Limited (MCIL), which owns 33 hotels around the world:
It has come to our attention that you have registered, without MCIL's permission or authorization, the domain name [], which includes a protected trademark of MCIL. This unauthorized use of MCIL's intellectual property falsely suggests MCIL's association with or endorsement of your website and is likely to cause confusion in the minds of the public that the website is associated with or connected to MCIL and the products and services offered by Millennium Hotels & Resorts. As a result, substantial damage is likely to occur to the goodwill and reputation of these trademarks.

We require that you immediately disable all content hosted at and allow the domain name to expire. Please confirm by return that you have done so within five (5) working days of the date of this letter.
After the village group sent off a "strongly-worded letter" mentioning its millennial history, that threat was rescinded. Millennium and Copthorne communications advisor Peter Krijgsman is quoted by the Plymouth Herald as saying:
"I can now confirm the 'cease and desist' letter sent to the Copthorne Village Association was sent in error in the course of an exercise carried out by Mark Monitor, a brand monitoring/protection agency.

"Mark Monitor will be contacting the administrator of the Copthorne Village Association website to explain this and to apologise for any inconvenience."
The "sent in error in the course of an exercise" excuse sounds rather unlikely; this is surely yet another example of legal threats being fired off without even looking at the facts of the case, something that happens all-too-often in the world of trademarks. At least the company concerned admitted the error and apologized -- something that by contrast happens all-too-rarely.

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Posted on Techdirt - 4 May 2015 @ 3:59am

And Another One Bites The Dust: Mass Surveillance Ruled Unconstitutional In Slovak Republic

from the time-to-take-the-hint dept

As we noted a few weeks ago, data retention laws continue to fall in Europe. Then it was Bulgaria, following in the wake of Netherlands. Now we learn that the Constitutional Court of the Slovak Republic has similarly struck down the country's data retention provisions, as reported by the European Information Society Institute:

An act, which ordered large-scale mass surveillance of citizens (so called data retention) is now history. Today the Constitutional Court of the Slovak Republic proclaimed the mass surveillance of citizens as unconstitutional. The decision was rendered within proceedings initiated by 30 members of the Parliament on behalf of the European Information Society Institute (EISi), a Slovakia based think-tank.
Those judgments are all in line with the ruling by the Court of Justice of the European Union (CJEU) that the over-arching EU Data Retention Directive was "invalid." Even the European Commission seems resigned to the fact that there will be no new data retention laws at the EU level.

However, that still leaves the possibility of national laws, provided they do not fall foul of the CJEU judgment, which implicitly offered guidelines how that might be achieved. Germany still seems determined to try, while legal action in the UK will determine whether the recent Data Retention and Investigatory Powers Act (DRIPA) has managed the trick.

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Posted on Techdirt - 1 May 2015 @ 1:10am

The Great Database of China: Rating Moral Behavior, Blacklisting Citizens

from the really-bad-credit-score dept

The Great Firewall of China is well known; a report in the Dutch newspaper de Volkskrant discusses a translation by Rogier Creemers of China's new Social Credit System plan -- a national store of citizens' ratings that promises to become the Great Database of China:

The intentions of the new system are not only economical, fighting fraudulent practices, but also moral. 'This is a deliberate effort by the Chinese government to promote among its citizens "socialist core values" such as patriotism, respecting the elderly, working hard and avoiding extravagant consumption', says Creemers. A bad 'credit code' can result in being not eligible for certain jobs, housing or credit to start a company. 'On the labour market you might need a certain score to get a specific job.'
Here are some details about how this would apply to online activities:
Forcefully move forward the construction of online sincerity, foster ideas of running the Internet according to the law and using the Internet in a sincere manner, progressively implement the online real-name system, perfect legal guarantees for the construction of online credit, forcefully move forward the construction of online credit supervision and management mechanisms.
The "online real-name system" is something we've written about before. A small consolation here is that China has been trying to bring this in for over a decade; its continuing failure to do so offers hope that the Great Database of China might be even harder to construct.
Establish online credit evaluation systems, evaluate the credit of the operational behaviour of Internet enterprises and the online behaviour of netizens, and record their credit rank. Establish network credit files covering Internet enterprises and individual netizens, vigorously move forward with the establishment of exchange and sharing mechanisms for online credit information and corresponding credit information in other areas, forcefully promote the broad application of online credit information in various areas of society.
The following section of the planned Social Credit System is particularly chilling:
Establish online credit black list systems, list enterprises and individuals engaging in online swindles, rumourmongering, infringement of other persons’ lawful rights and interests and other grave acts of breaking trust online onto black lists, adopt measures against subjects listed on black lists including limitation of online conduct and barring sectoral access, and report them to corresponding departments for publication and exposure.
As well as the sheer ambition of this database, which would cover the entire population of China, another novel aspect is where some of the ratings will come from, as de Volkskrant explains:
Innovative will be the active contribution of citizens rating other citizens. 'Imagine a Chinese person being able to rate his doctor or his professor, as is already happening in the US. And he or she might also give a bad score to polluting companies, as the system will be applied to companies and institutions as well', says Creemers.
Of course, online rating systems are already commonplace in other fields. There, they have led to fierce arguments and costly legal battles. The proposed system in China probably won't suffer from those problems, since the Social Credit System will presumably be secret. However, it will be far more insidious since the resulting "credit score" will have a major impact on people's lives and the opportunities open to them, notably for anyone that finds themselves -- unbeknownst -- on one of those blacklists.

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Posted on Techdirt - 30 April 2015 @ 4:12am

UK Tribunal Rules GCHQ Conducted Illegal Surveillance And Must Destroy Legally Privileged Documents

from the unlawful,-unnecessary-and-disproportionate dept

A couple of months ago, we reported on a surprising admission by the UK government that GCHQ has been carrying out illegal surveillance by monitoring privileged conversations between lawyers and their clients. As we noted at the time, the reason for this sudden access of conscience was simply that it knew it was going to lose an imminent case before the Investigatory Powers Tribunal (IPT), the body that considers complaints about UK government surveillance. And that, indeed, is what has just happened. As the human rights organization Reprieve, which helped bring the legal action, explains, not only has GCHQ been found guilty of illegal spying, it has also been ordered to destroy the materials it collected as a result:

Today's decision marks the first time in the IPT's fifteen-year history that it has upheld a complaint against the security services. It is also thought to be the first time the secretive tribunal has ordered an intelligence agency to give up surveillance material.
The Reprieve post has more details about the case, which involves Sami al-Saadi, a former opponent of Libya's Muammar Gaddafi. al-Saadi and his family were kidnapped in a joint MI6-CIA operation and 'rendered' to Libya in 2004, as was his colleague, the Libyan politician Abdul-Hakim Belhaj and his pregnant wife:
Both families have brought civil claims against the then-Foreign Secretary Jack Straw, former MI6 counter-terror head Sir Mark Allen, and the UK Government for their kidnap. The al-Saadi family settled their civil claim in December 2012 for 2.2 million pounds; the Belhaj claim comes before the [UK] Supreme Court this year. A Metropolitan Police investigation into both kidnappings, Operation Lydd, is thought to be near conclusion
Whatever happens with those cases, the latest IPT judgment is another important step in forcing the UK government to acknowledge that its mass surveillance programs broke the law in numerous ways. Moreover, as Richard Stein, the lawyer who represented the families before the Tribunal, pointed out:
Today marks the end of GCHQ's standard boilerplate response that its activities are lawful, necessary and proportionate. GCHQ unlawfully spied on privileged legal communications for years, and the secret oversight mechanisms failed to stop it.
That alone would be reason enough to celebrate this decision. But the IPT's ruling is unsatisfactory in other respects:
The IPT made 'no determination' in favor of Mr Belhaj and his wife. The IPT can make 'no determination' either if there was no spying, or if the IPT finds that spying did take place but was lawful. But the couple may never know the precise reasons for the decision.
That's an indication that still more must be done to bring greater transparency and accountability to the UK's surveillance programs. Fortunately, as the UK government continues to lose the fight against legal challenges to its activities, it is being forced to move in that direction, albeit very slowly.

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Posted on Techdirt - 30 April 2015 @ 1:09am

Crowdfunding Weaponized Drones In Ukraine

from the not-a-toy dept

Although it rarely makes it into the Western media these days, the bloody conflict between Russia and Ukraine continues to smoulder along a vague and shifting front. The lack of direct support from the West means that the Ukrainians have had to come up with other approaches to counter Russia's massive superiority in both technology and resources. According to a fascinating article in the Guardian, one way they are doing this is by using lost-cost drones, paid for by crowdfunding. One of Ukraine’s top IT outsourcing companies, Eleks, has been helping with the technical side:

Eleks, which is a private company based in both Ukraine and Nevada, pays healthy salaries. It allows staff to work on software and drone hardware projects that receive no government support or funding during work hours. They are doing this because, as their project manager, Ivan Dmytrasevych, told us, "We know we have to invest in the defence of our country. If our research works, and we can show the people that it works, then we will turn to crowdfunding to realise it."
Eleks is working on a number of drone projects. One is to help Ukrainian drones return to base automatically if signals are jammed by the Russians:
Ivan says that the Russian forces have highly advanced systems to jam and intercept Ukrainian drones, which can easily send them off course and into enemy hands. "They have $7m systems to jam drones that cost thousands of dollars,” he explains. "We just can’t match their resources." However, if they can slow down these types of losses, they can build up a useful force.
Another is to use drones to map Russian forces on the ground to provide coordinates for shelling:
"Just imagine that you take a map of some territory from Google Maps, and then your drone flies over the territory to take a picture. Artillery teams need exact coordinates from enemy positions shown on those images. Our software will help them get it instantly."
That's an indication that these crowdfunded drones are not just digital toys for the combatants, but designed to cause serious casualties in the real world. Indeed, they already have -- on the Ukrainian side, during attempts to construct drones that could drop bombs on the Russians. According to the Guardian report, some of the engineers were killed as they worked on this project:
Firstly, these were essentially homemade and potentially faulty bombs. Secondly, the fact that they were launching drones multiple times from the same position quickly exposed their location. From what I'd been told, a mortar or sniper attack was guaranteed at this point.
Those risks are unlikely to dissuade engineers from using these up-to-the-minute means to counter the huge disparity between the opposing forces, since the Ukrainians don't really have many other options.

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Posted on Techdirt - 29 April 2015 @ 12:59am

UN Expert: Secret Trade Negotiations Are A 'Threat To Human Rights'

from the null-and-void dept

Here on Techdirt, we've had plenty of posts looking at the major trade agreements currently being negotiated. As we've noted, criticism of TPP and TAFTA/TTIP has come from many quarters, particularly for the corporate sovereignty provisions, which are seen as problematic both on the left and right wings of the political spectrum. Intellectual Property Watch carries a fascinating statement criticizing key aspects of trade negotiations, which looks at things from quite a different angle. It's written by Alfred de Zayas, who is the "Independent Expert on the promotion of a democratic and equitable international order" -- apparently an honorary and unpaid position. In his statement, he expresses:

his deep concern over the general lack of awareness on the adverse effects that existing, or under negotiations, bilateral and multilateral free trade and investment agreements have on the enjoyment of human rights in many countries, particularly in the developing world.
Specifically, he is concerned about the secrecy of trade talks, and the fact that key stakeholders like trade unions, environmental protection grups and health professionals are excluded -- something that we've commented on many times here on Techdirt. He also thinks that fast-tracking the adoption of treaties -- as is currently being attempted in the US -- has a "detrimental impact on the promotion of a democratic and equitable world order." That's because, as de Zayas puts it:
It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs.
No surprise, then, that de Zayas has particular concerns about an area that is very familiar to Techdirt readers: corporate sovereignty.
I am especially worried about the impact that investor-state-arbitrations (ISDS) have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits.


The establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society ("contra bonos mores").
One intriguing point de Zayas makes is that since all nations are bound by the UN Charter, any treaties they negotiate must also conform to its provisions. Article 103 of that Charter states that if there is any conflict between a treaty and the UN Charter, it is the Charter that prevails. That has interesting implications for corporate sovereignty cases before ISDS tribunals:
Provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.
That's a great point, although it's a little hard to see it having much practical impact on the current negotiations. Unfortunately, the same might be said about the whole of de Zayas's statement, but it's certainly good to have his analysis here.

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