European Privacy Lost - and How to Get it Back

At the beginning of this year, I discussed a report written for the European Parliament, which warned that the US legal framework allowed the authorities there to spy on EU data held by any US cloud computing service. I also noted as an interesting fact that the NSA was building a huge new data centre, and that encryption might not offer the protection we thought. 

On Open Enterprise blog.

Net Neutrality under Threat in Europe - Unnecessarily

As long-suffering readers of this column will know, I've been following for a while the winding road leading to the European Commission's proposals regarding net neutrality in Europe. Along the way, there have been many twists and turns, with hints of first one direction, then another. But today, the Commission has finally released its plans - not just for this area, but for the whole telecoms market in Europe:

On Open Enterprise blog.

TTIP Update II

As I noted in my first TTIP Update about the current negotiations between the EU and US over a massive trade agreement that is far from being only about trade, it is probably true that it will not include many of the more outrageous ideas found in ACTA last year. But that is not to say that TTIP does not threaten many key aspects of the Internet - just that the attack is much more subtle.

On Open Enterprise blog.

EU Kills Net Neutrality, Threatens Online Openness

I've been trying to fathom what exactly Neelie Kroes, Vice-President of the European Commission with responsibility for the Digital Agenda, intends to do about net neutrality in Europe for a while. Back in January of this year, I asked: "Will Neelie Kroes Defend or Destroy EU Net Neutrality?", and in June I was still wondering: "What's the Net Net on Neelie Kroes's EU Net Neutrality?"

On Open Enterprise blog.

EU Copyright: The Right to Read and the Right to Mine

A year ago the European Parliament rejected ACTA - a real milestone in the fight to bring some balance to copyright, since it was the first time that a major international treaty was thrown out in this way, largely because of its one-sided and disproportionate approach to that area.

On Open Enterprise blog.

EU Open Standards: We Want Actions, Not Words

Open standards has been a recurring theme here on Open Enterprise. It's also been the occasion of one of the most disgraceful U-turns by the European Commission. That took place in the wake of the European Interoperability Framework v1, which called for any claimed patents to be licensed irrevocably on a royalty-free basis. But when EIF v2 came out, we found the following:

On Open Enterprise blog.

Please Help Overturn EU Data Retention Directive

The last couple of weeks have been full of the revelations about NSA spying on a massive scale. What has been slightly disconcerting is that the agency and its defenders have essentially tried to argue that the spying doesn't matter because it's only aimed at "foreigners". But that's us: which means that we are the target of this spying, even if others get caught up in it too. 

On Open Enterprise blog.

What's the Net Net on Neelie Kroes's EU Net Neutrality?

It's been a while since I wrote about net neutrality, but of course it's never gone away as an important theme. Indeed, it was inevitable that it would start to rear its ugly head again, since so many powerful companies have vested interests in destroying it. For example, in Germany the telecom giant Deutsch Telekom (DT) has already made a move to kill net neutrality by giving preference to its own IPTV platform. This has led to a heated debate about net neutrality in that country (for those who read German, the site hilf-telekom.de offers some hilarious satire of DT on the subject.)

On Open Enterprise blog.

EU Mandate For TAFTA Leaked: Includes Investor-State Dispute Resolution For Intellectual Monopolies

One of the concerns about TAFTA/TTIP is that it would repeat the mistakes of ACTA and SOPA as far as intellectual monopolies were concerned. This led to a call by a group of public interest organizations for things like copyright and patents to be excluded from TAFTA (disclosure: I was involved in the drawing up of the text.) Needless to say, no notice was taken of that, and a couple of weeks ago the European Parliament duly passed a resolution on TAFTA that said: 

On Techdirt.

Innovators, Public Interest Groups & Open Access Supporters Pull Out Of Talks On EU Copyright In Protest

Back in February we reported on a worrying attempt by the European Commission to reframe the discussion about modernizing copyright in Europe purely in terms of licensing, reflected in the name of the initiative, "Licences for Europe". Although originally a series of discussions were promised to "explore the potential and limits of innovative licensing and technological solutions in making EU copyright law and practice fit for the digital age," in practice moderators shut down discussions of things like exceptions or even Creative Commons licensing. As far as the Commission was concerned, it seemed the answer to updating copyright for the modern age was just old-style licensing and nothing else. 

On Techdirt.

FRAND Is Broken: Time To Bin It [Updated]

I've written many times about why FRAND licensing is not an option for open source projects, and should therefore be replaced by Royalty/Restriction-Free (RF) terms when it comes to defining open standards to create a level playing field. That's simply a fact arising from the nature of free software licences. But it turns out that FRAND is fundamentally flawed anyway, for reasons the following press release from the European Commission, on its "Statement of Objections to Motorola Mobility on potential misuse of mobile phone standard-essential patents", makes clear:

On Open Enterprise blog.

EU Commission Sued For Refusing To Reveal Trade Agreement Documents They Shared With Lobbyists

A recurrent theme here on Techdirt is the lack of transparency when international agreements and treaties are being drawn up. That's increasingly recognized not just as problematic, but simply unacceptable in an age when the Internet makes it easy to provide both access to draft documents and a way for the public to offer comments on them. 

On Techdirt.

EU Consultations: A Modest Proposal

Last week I reported on the reply I received from Jean Bergevin of the European Commission on the subject of the IPRED consultation, and my own response to that. I wondered whether I would receive a reply, suspecting that I might not. I was wrong: not only did a reply turn up, it turned up almost by return of post. Here's what Mr Bergevin wrote:

On Open Enterprise blog.

Open Source (Seeds) Under Threat

Seeds might seem far from the world of high tech and free software, but they have much in common. Seeds contain DNA, which is a (quaternary) digital code much like a binary program. Just as there is free software that anyone may use and share, there are free seeds - those that are part of the ancient seeds commons, created over thousands of years, available for use by anyone. And just as free software is threatened by software patents, so seeds are equally endangered by seed patents.

On Open Enterprise blog.

Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies: 

On Techdirt.

New EU Regulation Threatens Rare Seed Varieties, Agricultural Independence And Food Supply Resilience In Europe

Unless we are farmers, we tend to take seeds for granted. But civilisation is built on seeds: it was the rise of large-scale agriculture, based in part on the skilful breeding of ever-better seeds, that eventually allowed towns and then cities to form; and with them, the trades, arts and sciences that were possible once enough food could be produced by just a fraction of the population. That makes national seed policies -- how governments regulate the production and sale of plant varieties -- a crucial if neglected aspect of our urban lives. 

On Techdirt.

TTIP's "Science-based" Assault on Democracy Begins

Last month I predicted that one of the main tropes that would be used in the TAFTA/TTIP negotiations would by that of "science-based" policy. As I pointed out then, this is a trick, since the "science" actually consists of work by scientists working for big companies that want to push their products with minimal health and safety oversight by independent laboratories.

A great article from Public Citizen shows that this line of attack has already been deployed in a series of submissions hammering home the idea to both the US and EU delegations:

Food Safety

• “Science-based risk assessment, as the foundation for regulatory decisions, must not be overruled by an incorrect (and politically driven) application of the precautionary principle, as currently applied by the EU” (Croplife America, a lobbying group of U.S. pesticide corporations that includes genetically-modified-organism (GMO) giant Monsanto)
• “Finally, the EU’s political approach in regulating crops enhanced with traits achieved through modern biotechnology procedures is a concern to U.S. wheat producers. The EU biotechnology approval process is slow and often influenced more by politics than science, creating uncertainty and deterring new investment in wheat research… Science and market preferences, not politics, should be the determinants.” (U.S. Wheat Associates)
• “The current 'asynchronous approval' situation is caused by many factors, including risk assessment guidelines that are not aligned and increasing politically-motivated delays in product approvals.” (National Grain & Feed Association and North American Export Grain Association, lobbying groups comprised of the largest U.S. agribusinesses, such as Cargill and Archer Daniels Midland)
• “International trade rules fully support trade in products of biotechnology for planting, processing and marketing, subject to science-based regulation… Politically motivated bans or moratoria by WTO member states are not consistent with members’ WTO obligations.” (National Corn Growers Association)
• “The implementation of production standards based on politics or popular thought instead of science will do nothing more than eliminate family operations and drive up costs to consumers.” (National Cattlemen's Beef Association, a factory-farm-supporting lobbying group for the beef industry)
• “What is deeply concerning about the EU’s overall approach to SPS [sanitary and phytosanitary] issues, however, is that its political body is frequently given the ability to override the EU’s own scientific authority’s findings to instead establish restrictions on products based typically on animal welfare or consumer preferences.” (National Milk Producers Federation & U.S. Dairy Export Council)

 Product Safety

• “Significant barriers to further alignment, namely politics and differences in regulatory approach, remain on both sides of the Atlantic. Our experience has also shown that politics and differences in regulatory philosophy are fundamentally the root causes for differences in toy safety standards… Frequently, standards that are stricter than their international counterparts are promulgated due to political influence or the (often unstated) desire to erect technical barriers to trade, and not predicated by science or risk factors.” (Toy Industry Association and Toy Industries of Europe)
• “We would like to highlight the fact that these regulatory differences are often politically motivated… We regret that the differences in regulations in the EU and US are often caused by the result of politics rather than a different approach to ensuring safety.” (Toy Industries of Europe)
• “Such discussions need to take place between technical, not political or administrative, entities and need to make business sense for the organizations involved.” (ASME, a lobbying group for engineers -- the first U.S. "non-profit" entity convicted for violating antitrust laws)

Some of the statements there are truly incredible - for example, the idea that animal  welfare or consumer preferences have no place in a country's trade policy, or that standards "stricter than their international counterparts" are somehow bad, and should be forbidden (isn't that what we should be striving for - doing better than the average?)  The latter also confirms what I've noted elsewhere: that the only way TTIP can "succeed" on its own terms is if all health and safety standards are levelled *downwards*, to the detriment of the public.

But the most significant point that emerges from the above is the false opposition between that "science-based" method and the "politically-motivated" approach.  As rightly pointed out by Public Citizen:

the "political" bodies the corporations fear are the democratically elected representatives of the people.  

Without realising it, the corporations are revealing their profound contempt for democracy, and for the right of citizens to choose the laws that govern them.  Instead, the huge multi-nationals are asserting the primacy of profit - and of their right to over-rule local laws.  I've warned about this previously, specifically in the case of Monsanto, but it's still frightening to see the naked expression by companies of their desire to see law trumped by lucre.

Why has Monsanto "Quit" Europe? The Answer is ISDS in TAFTA/TTIP

The battle to bring GM food to Europe has been fiercely fought for years.  Most assumed it would be continue to rage for many more. Which makes this recent announcement extremely surprising:

The world's largest producer of seeds, Monsanto, has apparently given up on attempts to spread its genetically modified plant varieties in Europe. A German media report said the firm would end all lobbying for approval.

The German newspaper "taz" reported Friday that US agriculture behemoth Monsanto had dropped any plans to have farmers grow its genetically modified (GM) plant varieties in Europe.

Monsanto Europe spokesman Brandon Mitchener was quoted as saying the company would no longer engage in any lobbying fur such plants on the continent, adding that at the moment the firm was unwilling to apply for approval of any GM plants.

This is very curious.  Monsanto may be many things, but it is not a company that  gives up.  However, there is a clue in the last sentence of the above quotation: "at the moment the firm was unwilling to apply for approval of any GM plants". That suggests this is only a temporary halt, and that it will be back.

So why might it do that? Is there anything happening that might have triggered this move?

Why, yes: TAFTA/TTIP.  In fact, the issue of GM crops is likely to be one of the biggest sticking points.  The US side is insisting that "Sanitary and Phytosanitary" (SPS) measures must address GM foodstuffs, with the European side adamant that it won't drop its precautionary principle.

So how might that apparent contradiction be resolved?  A recent meeting on SPS gives a clue:

WTO members celebrated the 50th anniversary of 186-member Codex Alimentarius, which sets international standards for food safety, by calling, on 27–28 June 2013, for continued support for the body, and for trade measures to be based on science.

The calls came in a two-day meeting of the WTO’s Sanitary and Phytosanitary Measures (SPS) Committee, which consists of all 159 WTO members and deals with food safety and animal and plant health — measures having an increasing impact on trade. 

 Specifically:

“The increase in the number of SPS measures that are not based on international standards, guidelines and recommendations, or that lack scientific justification, is a point of concern that has often been raised by many members in the SPS Committee and other contexts,” Brazil observed.

The discussion of the six new specific trade concerns and the 10 previously raised and discussed in this meeting reflected that theme.

They covered; processed meat, genetically modified organisms (GMOs), restrictions related to the Japanese nuclear plant accident, orchid tissue culture plantlets in flasks, citrus fruits (a complaint by South Africa against the EU about black spot, which is the first dispute settlement case in the International Plant Protection Convention), offal, salmon, pesticide residues, sheepmeat, phthalates (materials added to plastics in food and drink containers) in wines and spirits, shrimp, mad cow disease (BSE), GMO pollen in honey, Indonesia’s port closures, and pine trees and other products.

As can be seen there, GMOs are mentioned twice.

Well, "trade measures to be based on science" sounds reasonable enough, doesn't it?  Except, as I've discussed at some length recently, the "science" actually means "scientists employed by companies"; that is, it is far from being independent or disinterested.  By redefining such company testing as "scientific", it can then be used to push through products that have never been tested by national food safety bodies.

This approach seems certain to crop up during the TAFTA/TTIP negotiations, and would offer Monsanto a fresh opportunity to push its GM products in the EU.  What it will be aiming for is that US "testing" must be accepted in the EU too - that's precisely what TAFTA/TTIP is all about - which would mean automatic approval for its products there.  Hence the recent pull-out - it won't even need to make applications in the future.

But it gets even better for Monsanto.  Another key area for TAFTA/TTIP is investor-state dispute settlement (ISDS).  Again, I've written extensively about this elsewhere. Here I just want to explore how Monsanto might use it to blackmail European governments into accepting GM crops.

Essentially, ISDS allows companies to sue entire countries or even regions like the EU for alleged loss of future profits (see this terrifying example from Canada.)  So once TAFTA/TTIP is signed with ISDS provisions, Monsanto will be able to threaten to sue the EU and its member states if they don't allow its GM products to be sold there.  

The logic would be that it invested money in Europe in the "reasonable" expectation - based on "science", of course - that it could sell its products as a result.  Since the EU authorities and national governments have proved so hostile to GM, it was unable to do that.  It would therefore claim that it could sue the EU for hundreds of millions - possibly billions - of  Euros for its "lost" profits.

This is not some mad fantasy: it is already playing out around the world, as governments find that they cannot apply laws designed to protect public health and safety, since they would have the knock-on effect of reducing some multinational's profits, and therefore makes them subject to ISDS claims.

I believe this is the main reason for Monsanto's temporary pull-out from the European approvals process: it feels confident that ISDS provisions will be included in TAFTA/TTIP - indeed, both the EU and US sides have said they want them - and equally confident that it will be able to sue the socks off the EU and national states if they don't simply wave through GM products in their markets, no further approval required....

EU Free Trade Agreements With India And Canada Grind To A Halt

Techdirt has been covering the free trade agreement being negotiated between India and the EU for a while now -- that is, as well as anyone can report on something that is being conducted behind closed doors. Despite or maybe even because of that secrecy, one issue in particular has raised concerns: that India's crucial role as supplier of low-cost generics to the world's poor might be under threat. Against that background, this report on the Live Mint site comes as something of a surprise: 

On Techdirt.

Cambodian Activists Explain Why The EU-India FTA Is A Matter Of Life And Death

One of the many problems with the secretive nature of trade agreements is that it insulates negotiators from the real-world consequences of their actions. That's particularly true for the FTA talks between the EU and India, currently taking place behind closed doors. One of the key issues for the EU side is India's role as a supplier of generic medicines to the world, and India's tough stance on issues like the evergreening of pharma patents. From the various leaks that we have, it seems that the EU is demanding that India toe the line on drug patents, and cut back its supply of low-cost generics to emerging countries. 

On Techdirt.