UK Consultation on Draft Investigatory Bill Closes Monday: Please Write

The Joint Committee on the Draft Investigatory Powers Bill invites any "interested individuals and organisations" to submit evidence to this inquiry.  Written evidence should arrive no later than 21 December 2015.   Here are the four main questions:

Are the powers sought necessary?

Has the case been made, both for the new powers and for the restated and clarified existing powers?

Are the powers sought legal?

Are the powers compatible with the Human Rights Act and the ECHR? Is the requirement that they be exercised only when necessary and proportionate fully addressed? Are they sufficiently clear and accessible on the face of the draft Bill? Is the legal framework such that CSPs (especially those based abroad) will be persuaded to comply? Are concerns around accessing journalists’, legally privileged and MPs' communications sufficiently addressed?

Are the powers sought workable and carefully defined?

Are the technological definitions accurate and meaningful (e.g. content vs communications data, internet connection records etc.)? Does the draft Bill adequately explain the types of activity that could be undertaken under these powers? Is the wording of the powers sustainable in the light of rapidly evolving technologies and user behaviours? Overall is the Bill future-proofed as it stands?

Are the powers sought sufficiently supervised?

Is the authorisation process appropriate? Will the oversight bodies be able adequately to scrutinise their operation? What ability will Parliament and the public have to check and raise concerns about the use of these powers?

Weirdly, you are not allowed to publish your submission until you are given permission:

Evidence which is accepted by the Committee may be published online at any stage; when it is so published it becomes subject to parliamentary copyright and is protected by parliamentary privilege. Submissions which have been previously published will not be accepted as evidence. Once you have received acknowledgement that the evidence has been accepted you will receive a further email, and at this point you may publicise or publish your evidence yourself. In doing so you must indicate that it was prepared for the Committee, and you should be aware that your publication or re-publication of your evidence may not be protected by parliamentary privilege.

So, let me give a summary of my answers to the questions:

No, the powers are not necessary, because they are based on the idea that mass surveillance works.  It doesn't.

No, the powers are not legal: both the Court of Justice of the European Union and the European Court of Human Rights have said mass surveillance is illegal. 

No, they are not workable, because the idea of an Internet Connection Record makes no sense. UK's biggest telecoms confirmed the plan is unworkable.

No, the powers are not supervised because the "double-lock" authorisation is a sham: the judge does not check whether the authorisation was justified, only whether the procedure was correctly followed.

Also worth noting that the distinction between "content" and "communications data" is meaningless: metadata is actually more revealing than content, because it is already parsed in a computer-readable form that allows it to be combined with billions of other pieces of metadata.

Creating huge databases of metadata will create huge honeypots that will be irresistible to criminals and foreign governments.  Stealing the metadata will give them valuable information that can be used for identity theft or blackmail.

Finally, it is worth pointing out that the whole idea of "equipment interference" is really stupid.  If agencies are given permission to break into people's systems, they can plant anything there, and make changes to things like browser histories.  As a result, any computer evidence in a trial is suspect, since it could easily have been planted using "equipment interference" without anyone noticing.  As computer-based evidence becomes more important, "equipment interference" would seriously undermine the UK's legal system.  It should be the very rare exception, not part of a standard toolset.

This is a really important consultation: please respond by Monday.

UK TTIP Debate Tomorrow: Please Contact MPs Today

It seems that there will be a rare UK debate about TTIP tomorrow.  This is a great opportunity to contact your MPs and let them know what you think.  Here's what I've just sent - you can use WritetoThem to make things easier.

I believe that the House of Commons will be debating TTIP on Thursday. I hope you are planning to be there, and might be able to convey some of my concerns about the proposed agreement.

TTIP is generally presented as being something that will boost the EU and UK economies, and provide benefits for all. In fact, the European Commission's own study shows that even under the most optimistic assumptions, the GDP gain will only be 119 billion euros. That may sound a lot, but in fact is only about 0.5% of EU GDP. Moreover, that would be after ten years of TTIP, so the extra annual GDP in this optimistic scenario is around 0.05%, which is effectively zero given the uncertainties of all econometric modelling.

Even that 0.05% annual GDP boost will probaby be very hard to achieve. According to the European Commission's own study, it is based on the assumption that only 20% of the boost will come from removing tariff barriers, which are already low between the EU and US, while 80% will come from removing non-tariff barriers (NTBs). But NTBs are essentially regulations, and are not "trade irritants" as some like to describe them, but hard-won protections for health, safety, the environment etc. Removing them would cause huge negative effects on society – none of which are included in the econometric model. In fact, *no* costs are included in the CEPR projections, which is extraordinary.

The European Commission says that regulations will be harmonised, not lowered. But that will rarely be possible. For example, for chemicals in cosmetics, the EU bans 1300 of them, while the US only bans 12. If it is infeasible to harmonise regulations, and standards will not be lowered, achieving the 80% of gains will be hard, if not impossible.

Finally, there is the issue of ISDS. No convincing argument has been offered for why this is necessary. Both the EU and US have extremely well-developed legal systems. The European Commission has been unable to cite any example where an EU company has been discriminated against in the US. Moreover, the size of the investments across the Atlantic prove that there is absolutely no problem that needs solving here: the US has invested 1.5 trillion euros in Europe, while the EU has invested 1.6 trillion euros. Businesses would not be making these massive investments if there were a problem. And for those that are chary, there is always investment insurance.

On the other hand, including ISDS in TTIP will give 19,900 US-based corporations that own more than 51,400 subsidiaries in the EU the ability to sue the EU and members states over regulations that they claim will harm their profits. And while it is true that ISDS cases cannot force governments to repeal laws, many do since the cost in terms of ISDS awards are so high: recently, an award of $50 billlion was made against Russia by an ISDS tribunal. It is clear from past experience that ISDS has a chilling effect on bringing in new laws that protect the public.

I hope these quick thoughts make clear why I am concerned about TTIP, and believe that it in its current form it will bring few, if any benefits, to the UK public, while exposing them and the EU to huge risks.  If you have time, which I fear is unlikely, I have written at greater length about TTIP in this extensive feature for Ars Technica UK.

As ever, thank you for your help.

"Open " Consultation: Setting the mandate to NHS England for 2016 to 2017

Although you wouldn't know it, the UK's Department of Health has been running a consultation on NHS England.  It has kept this quiet in the hope that no one would reply, and it could just do what it wanted.  

You can read its consultation document pretty quickly, but it probably won't do much good: it's written in the finest officialese that manages to sound impressive, but say very little.  You can respond online, and here's what I've sent them:

Do you agree with our aims for the mandate to NHS England?

Although the mandate is largely fine, it suffers from an excess of generalities. What it lacks is any concrete statement of about how things should be done. I think it is vital that the NHS should be committed to providing a world-class health service using public resources, not private ones. The reasons are simple.

First, the US health system shows us that private healthcare is incredibly expensive, incredibly inefficient, and fails to deliver good healthcare. Moving in that direction would be foolish at best, and downright negligent at worst, since people will die as a direct consequence of doing so.

Moreover, privatising healthcare is foolish for economic reasons: private providers by definition must make a profit, and so by definition are more expensive than publicly-provided resources. Invoking "competition" as a reason why private health provision is better makes no sense, since that competition leads to cost-cutting, which again leads to patients suffering, as recent experiences have shown here in the UK.

Finally, privatisation makes no sense because there is no ownership of skills and knowledge. This would make the NHS a hollow, precarious structure.

Is there anything else we should be considering in producing the mandate to NHE England?

Yes: it should specify as a matter of principle that services will provided publicly, not through private provision. The use of private contractors by public bodies is fine, but the control of every key aspect must remain in public, not private hands, otherwise the profit principle takes over, and people will suffer.

What views do you have on our overarching objective of improving outcomes and reducing health inequalities, including by using new measures of comparative quality for local CCG populations to complement the national outcomes fin the NHS Outcomes Framework?

Fine words again, but without adequate resources, essentially worthless. Unless the NHS is funded adequately, as a matter of priority, it will be impossible to achieve those fine objectives. This will lead to the NHS being dubbed a "failure", which a cynic might suspect is the intention so that privatisation can be offered as the "solution." It is not.

What views do you have on our priorities for the health and care system?

The key priority should be providing world-class healthcare to everyone in the UK free of charge. That is the sign of a civilised country, and failing to do so is to fail that test too. Of course, that requires more resources, in which case it becomes a matter of priorities. But far more lives will be lost as a result of underfunding the NHS than will be lost through terrorism, however much the government likes to exaggerate the threat of the latter. Indeed, the greatest threat to this country is not ISIS/Daesh but things like the end of antibiotics, which could see all major surgery becoming impossible in just a few years. The government should be spending its billions on researching new ways of killing bacteria, not beefing up its surveillance apparatus.

What views do you have on how we set objectives for NHS England to reflect their contribution to achieving our priorities?

Despite all the claims of openness, this consultation has been conducted in near-secrecy. If the government really cared about what the public thinks on this matter (and I do realise that it does not), it would have made far greater efforts to publicise the existence of this consultation. Given the government is now trying to emasculate FOI requests, this is hardly a surprise, but I find the emphasis on openness here a little galling, to say the least.

Do you have any other comments?

I think I have probably said enough...

Urgent: Net Neutrality in EU under Threat; Please Write to your MEPs Now

The long saga of net neutrality in the EU is approaching its end, and things aren't looking good.  The compromise text contains some huge loopholes, which I've written about elsewhere. The key vote is on Tuesday, so there's still time for EU citizens to write to their MEPs. 

You can find contact details for all MEPs on the SaveTheInternet.eu site; those in the UK can also use WriteToThem.com.  Here's what I've just sent - please feel free to use its idea, but don't just copy and paste: MEPs will rightly disregard it.

The Internet has risen more rapidly and had more influence on society than any preceding technology. At the heart of its success lies an obscure technical feature: net neutrality. Simply put, it means that all traffic is treated equally. That level playing field has allowed innovation to flourish, and startups to create new industries in a way never seen before.

As you know, on Tuesday the European Parliament votes on new rules that supposedly enshrine net neutrality in Europe. In fact, those proposals contain such serious shortcomings that they are likely to have the opposite effect, and will undermine net neutrality.

I would therefore like to urge you to vote in favour of amendments that would return the text to a form nearer the earlier one approved by the European Parliament, which was far superior. In particular I would like to ask you to support the amendments specified here:

https://www.laquadrature.net/files/20151019-Amendments_TSM.pdf

In a surprising turn of events, the US has passed strong net neutrality laws (https://www.whitehouse.gov/net-neutrality). If the EU does not follow suit, it will threaten digital innovation in Europe, and hamstring its entrepreneurs, thus ensuring that the digital gulf between the EU and US widens, rather than narrows. For this and other reasons, it is vital that the amendments indicated above are included in the final text.

Thank you for your help.

Urgent TTIP Vote: Please Write (Again) to Your MEPs before Wednesday

There is (another) very important plenary vote in the European Parliament on TTIP this Wednesday, when the European Parliament will vote on a resolution concerning TTIP. The first time around, the vote was pulled for tactical reasons by the pro-ISDS camp, rightly afraid that the European Parliament would reject the inclusion of this anti-democratic idea in TTIP. Now they have cobbled together a "compromise" on ISDS which simply calls it something else, without solving the fundamental problem, which is that it gives corporations unique rights to sue entire nations, with us, the public, footing the bill.  Here's the proposed amendment:

to ensure that foreign investors are treated in a non-discriminatory fashion while benefitting from no greater rights than domestic investors, and to replace the ISDS-system with a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny where potential cases are treated in a transparent manner by publicly appointed, independent professional judges in public hearings and which includes an appellate mechanism, where consistency of judicial decisions is ensured, the jurisdiction of courts of the EU and of the Member States is respected and where private interests cannot undermine public policy objectives;

The good news is that MEPs are often responsive to their constituents contacting them, especially if large numbers do so on a particular theme. So I would like to urge you to write to your MEPs, using WriteToThem, or directly, to ask them to reject ISDS in all its forms.

If you want to find out more about TTIP in general, I have written a 6000-word explanation; you can also browse through the 51 columns I have written on the topic over the last two years. Finally, there is a documentary about TTIP, which provides a superb introduction to the issues – I'm in it, but please don't let that put you off.

I've included below the letter that I have sent to my MEPs: please feel free to draw on its arguments, but I urge you to put them in your words: MEPs hate and will dismiss letters that are carbon copies of others. Individually-written communications, by contrast, are very powerful.

I hope you will excuse me writing to you again on the topic of TTIP ahead of Wednesday's plenary vote. I would like to urge you to vote against the proposed "compromise amendment" on the topic of ISDS, which supposedly addresses the problems of this system. It does nothing of the sort: it still provides corporations with unique rights against entire nations; it creates a similarly unfair system where companies can win huge awards, to be paid by the public, but the best the public can achieve is not to lose. This is the very definition of a tilted playing-field.

The avowed intent of this "compromise", and of ISDS itself, is to ensure that foreign investors are treated fairly. That is only right, but ISDS and the compromise are exactly the wrong way to go about this. If either is in place, there is no pressure to address the real problem, which is that local laws may not treat foreign investors in the same way as domestic ones. Far better to change laws to make them truly fair, than to introduce another unfair system that undermines the rule of law by creating special structures outside it.

I would therefore ask you to reject ISDS completely, as well as any attempts to introduce it in other ways, for example through the "compromise amendment".

Help Reform EU Copyright: Please Write to your MEPs Now

Although it's rather dropped off the radar, an extremely important revision of the EU Copyright Directive has been underway for years. The biggest development recently has been the excellent work by the German Pirate Party MEP Julia Reda, who put together a draft report on the existing Copyright Directive and some bold but sensible proposals for what the next iteration should contain. Naturally, that report has come under fierce attack from the copyright maximalists, who believe that copyright should only ever get stronger and longer for their benefit, and that it should never be changed for the benefit of the public, who are regarded simply as consumers that must pay for every use of everything.

Reda's report has received over 500 amendments, many of which not only weaken it, but completely reverse its intent. Next Tuesday, the main European Parliament committee responsible for this dossier, JURI, votes on which amendments to incorporate into the report. It is therefore important for people to contact their MEPs, asking them to pass on messages about which amendments must be rejected. Communia has put together a good guide to both good and bad amendments, which you might want to draw upon.

I have included below what I am sending to my MEPs; please feel free to draw on it, but do not copy it verbatim, since that lessens the impact of sending a personal message. To find out who you MEP is, you can use WriteToThem.

I am writing to you in connection with the JURI vote on Julia Reda's draft report on revising the Copyright Directive. As you know, this is an extemely important opportunity to make copyright fit for the digital age. If it is not taken, it is likely to impact adversely the EU's competitiveness and also lead to an increasing disregard for copyright law, especially among young people. I would therefore like to urge you to pass on to your JURI colleagues the following comments about some of the key proposed amendments, and why they should be rejected.

Reject amendments 252 to 257

These all attack the public domain. Copyright is an exceptional monopoly granted for a limited time; after that time expires, works enter the public domain, which therefore forms the foundation of all copyright laws. The public domain represents the great store of knowledge that all can draw upon to create anew. It must be defended.

Reject amendment 409

This is an extraordinary attack on the hyperlink, which lies at the heart of the Web. It would impose an impossible responsibility on everyone creating Web pages: to know the exact legal status of the Web page to which they link. That is a job for judges, not people sitting at home sharing interesting links with their friends and family.

Reject amendment 279

Copyright has been getting stronger, longer and wider for the last 300 years. It is now so unbalanced that the vast majority of Europeans ignore it every day as they use the Internet. In order to salvage at least some respect for the law, copyright needs to be rowed back, not pushed forward even more.

Reject amendment 421

It is absurd that people cannot take pictures of public scenes without worrying about copyright issues. What is public must remain public, for anyone to use, otherwise we are effectively destroying the public sphere.

Reject amendments 236 to 244

The public pays for public sector information, and has a right to use it. But there is another powerful reason for placing public sector information in the public domain: it allows the creation of huge new markets. Perhaps the best example is the information from the Human Genome Project, which was placed in the public domain, and has added $1 trillion to the US economy as a result (http://www.nature.com/news/economic-return-from-human-genome-project-grows-1.13187).

Reject amendment 446

Text and data mining are hugely important new tools that could lead to major scientific discoveries. Attempts to require researchers to pay for the legal right to carry out these techniques on material they have already paid to access is double-dipping, and completely unreasonable.  It is likely to put European researchers at a serious disadvantage compared with their peers elsewhere.

Reject amendment 531

DRM overrides basic rights; it is another example of where copyright is completely unbalanced. It has the ironic effect of making unauthorised copies of works without DRM more attractive than legal ones hobbled by it, and giving power to US companies like Apple and Amazon that control the DRM used for European works.

It is vitally important to get copyright law right, since it is now completely out of step with how people use the Internet, and how they create and share works. If the copyright directive is not updated appropriately now, there may not be another opportunity because copyright will have become completely irrelevant in the digital world.  Thank you for your help.

Urgent: TTIP Vote - Please Write to Your MEPs before Wednesday

There is a very important plenary vote in the European Parliament on TTIP this Wednesday:

Parliament’s recommendations to the European Commission for its Transatlantic Trade and Investment Partnership (TTIP) talks with the USA will be debated by MEPs on Wednesday morning and voted at noon. Investor protection (ISDS) is set to top the debate, with opinions split on whether Parliament should ask that the use of private arbitration to resolve disputes between investors and public authorities be excluded from the deal.

Specifically:

Parliament will vote on a resolution, drafted by its International Trade Committee with contributions from 13 other committees, which assesses the progress made after one and a half years and sets out Parliament’s views on what needs to be achieved and safeguarded in the Commission’s talks with the USA in areas such as agriculture, public procurement, data protection, energy, and labour rights.

However, that draft resolution has a huge problem: it does not unequivocally reject investor-state dispute settlement (ISDS), the supra-national tribunals that allow corporations to sue nations, which means you and me, since we end up footing the bill.

The good news is that MEPs are often responsive to their constituents contacting them, especially if large numbers do so on a particular theme. So I would like to urge you to write to your MEPs, using WriteToThem, or directly, to ask them to support amendment 27 calling for ISDS to be rejected:

to ensure that foreign investors are treated in a non-discriminatory fashion and have a fair opportunity to seek and achieve redress of grievances, while benefiting from no greater rights thandomestic investors; to oppose the inclusion of investor-state dispute settlement (ISDS) in TTIP, as other options to enforce investment protection are available, such as domestic remedies;

If you want to find out more about TTIP in general, I have written a 6000-word explanation; you can also browse through the 51 columns I have written on the topic over the last two years. Finally, there is a new documentary about TTIP, which provides a superb introduction to the issues – I'm in it, but please don't let that put you off.

I've included below the letter that I have sent to my MEPs: please feel free to draw on its arguments, but I urge you to put them in your words: MEPs hate and will dismiss letters that are carbon copies of others. Individually-written communications, by contrast, are very powerful.

I am writing to you ahead of Wednesday's plenary vote on TTIP. The proposed agreement raises many important issues that the European Parliaments needs to consider, but here I would like to concentrate on perhaps the most contentious, that of investor-state dispute settlement (ISDS), and to urge you to vote for Amendment 27.

Proponents like to point out that the EU currently has around 1400 agreements with ISDS, and that its inclusion has not been a problem so far. What this overlooks is the fact that the vast majority of those agreements are with developing economies; few if any of those countries' companies have investments in the EU, and therefore they are unable to use its measures.

The situation is entirely different with the US. There are 19,900 US-based corporations that own more than 51,400 subsidiaries in the EU, any one of which could invoke ISDS if it is included in TTIP, since the European Commission's TTIP mandate specifies that ISDS must be retroactive, and cover existing investments as well as new ones. A 2013 study commissioned by the UK government from the London School of Economics confirms the risks of ISDS in TTIP: "an EU-US investment chapter is likely to provide the UK with few or no benefits. On the other hand, with more than a quarter of a trillion dollars in US [foreign direct investment] stock, the UK exposes itself to a significant measure of costs" (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260380/bis-13-1284-costs-and-benefits-of-an-eu-usa-investment-protection-treaty.pdf).

Even before TTIP, ISDS lawsuits have cost EU governments – and thus the EU public – billions of euros. According to research carried out by Friends of the Earth Europe: "The total amount awarded to foreign investors from EU member states – inclusive of interest, arbitration fees, other expenses and fees, as well as the only known settlement payment paid out by an EU member state – was publicly available for 14 out of the 127 cases (11%) and amounts to €3.5 billion." Since figures are not available for all the other 113 cases, it is likely that the total amount paid out by EU countries is much higher. The sums involved are big, and getting even bigger: in a case last year, an ISDS tribunal made an award of $50 billion against the Russian government, the highest so far.

Just as worrying as the financial implications of ISDS are the chilling effects it has. ISDS awards can be so large that losing a case brought before these secretive tribunals is a serious matter for any country. Governments are therefore naturally keen to avoid bringing ISDS lawsuits down upon themselves. Companies are well aware of this, and have used the mere threat of this kind of action to prevent new laws and regulations being introduced.

For example, in Canada, a precursor of TTIP, NAFTA, was regularly used to kill off proposed legislation. As a Canadian government official said (http://www.thenation.com/article/right-and-us-trade-law-invalidating-20th-century?page=0,5): "I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law.Virtually all of the new initiatives were targeted and most of them never saw the light of day." The European Commission says that the versions of ISDS used in its most recent agreements, with Canada and Singapore, have been drafted to avoid these kinds of cases, but independent research by two groups shows that these claims don't stand up to scrutiny (available at http://www.iisd.org/pdf/2014/reponse_eu_ceta.pdf and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2613544.)

Given those very real dangers, the question has to be: why is ISDS even being considered?

Proponents claim that it is necessary to include ISDS in order to encourage and protect investment across the Atlantic. That seems unlikely given the well-developed nature of the legal systems in both the US and EU. The actions of the investors themselves proves that in fact the protection is not just sufficient in theory, but in practice too: in 2013, the US invested 1.65 trillion euros in Europe; Europeans invested even more in the US – nearly 1.7 trillion euros (European Commission figures – http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/.) Clearly, there is no problem that needs solving with ISDS.

Some ISDS supporters admit that ISDS is not needed for TTIP, but say that it must be included for future agreements, by which they mean one with China. This is based on the assumption that it would be EU companies using ISDS to protect their investments in China; it overlooks the fact that China is already the world's second-largest economy, and will soon by the biggest. It is investing massively in Europe, which means that it would be able to use any ISDS clauses in future trade agreements against European governments, just as the US would. In other words, putting ISDS in TTIP purely in order to set a precedent for a future deal with China actually gets the worst of both worlds.

Finally, it is worth noting that if investors are really worried about the risks of putting their money into the US or China they can always take out investment insurance specifically designed for that purpose, which is readily available. Since it is the companies that reap the benefits of their investments, it is only fair that they they should pay for any insurance to cover it. ISDS is in fact a subsidy from the European public to those who invest abroad, rather than at home: it discriminates against EU companies that prefer to put their money into local economies and to boost local employment, which is surely not what the European Parliament would wish to achieve.

For all these reasons, I urge you to support amendment 27 that would take ISDS out of TTIP. Thank you for your help.

TTIP explained: The secretive US-EU treaty that undermines democracy

The Transatlantic Trade and Investment Partnership (TTIP), sometimes known as the Transatlantic Free Trade Agreement (TAFTA), is currently being negotiated behind closed doors by the European Union and the US. If it is successfully completed, it will be the biggest trade agreement in history. But TTIP is not just something of interest to export businesses: it will affect most areas of everyday life, including the online world.

Opponents fear it could undermine many of Europe's hard-won laws protecting online privacy, health, safety and the environment, even democracy itself. For example, it could effectively place US investors in the EU above the law by allowing companies to claim compensation from an EU country when it brings in a regulation that allegedly harms their investments—and for EU companies to attack US laws in the same way.

Those far-reaching effects flow from the fact that TTIP is not a traditional trade agreement, which generally seeks to lower tariffs between nations so as to increase trade between them. The tariffs between the US and EU are already very low—under 3%—so there is little scope to boost transatlantic trade significantly by removing the remaining tariffs completely.

Instead, TTIP aims to go beyond tariffs, and to remove what it calls "non-tariff barriers." These refer to the different ways of doing things which make it hard for a company to sell exactly the same product on both sides of the Atlantic. Typically, different national regulations require different kinds of tests and product information, which leads to a duplication of effort that adds costs and delays to making products available in the other market.

TTIP's stated aim to smooth away those NTBs is good news for the companies, but not so much for pesky humans. What are classed as "barriers" include things like regulations that protect the environment or the online privacy of Europeans. The threat to diminish or remove them in the name of transatlantic "harmonisation", has turned the traditionally rather dull area of trade agreements into the most important focus for civil action in years, galvanizing a broad spectrum of groups on both sides of the Atlantic that see TTIP not as a potential boon, but a bane.

Read the rest of this 6,376-word article on Ars Technica UK.

Urgent: Please Help Stop Underhand Attempt to Sneak in the Snooper's Charter

In an act of extraordinary contempt for both the public and democracy, four lords are attempting to insert the bulk of the Snooper's Charter in the Counter Terrorism and Security Bill in a way that means there will be almost no opportunity to debate it.  We have only two days to stop this disgraceful move by writing to members of the House of Lords, and asking them to object to this disturbing attempt to circumvent the proper procedures "because terrorism".

WriteToThem will provide you with a random person to contact, and an easy way to do so - you just have to provide the message.  Here's what I've sent to a few people there:

I hope you will forgive me for contacting you out of the blue like this, but I feel that the circumstances surrounding the attempt to introduce what amounts to an entire additional bill into the Counter Terrorism and Security Bill without scrutiny is a gross abuse of Parliamentary procedure - indeed an assault on democracy.

As the Open Rights Group notes:

"The draft Communications Data Bill, which is inserted by the amendment in nearly identitical form, was scrutinised by a joint committee of the Lords and Commons for a year.

The Committee agreed unanimously that the draft was inappropriate. None of their concerns are addressed in the clauses presented. 

The report is extremely critical of the Home Office, labelling their figures “fanciful and misleading.” It adds that they “expect the overall cost to the taxpayer over the next decade to exceed £1.8 billion [the Home Office's estimated cost] by a considerable margin"

The Committee said that “the draft Bill pays insufficient attention to the duty to respect the right to privacy, and goes much further than it need or should for the purpose of providing necessary and justifiable official access to communications data.”

Their concerns over wholesale collection and analysis of data were substantial and from any perspective would need considerable changes to be made to the draft bill, now presented as amendment to the Counter Terrorism and Security Bill."

Given those issues, as well as the more fundamental one of the entire legislative process being abused in this way, I would like to urge you to attend the debate on Monday and to express your concerns about this attempt to insert legislation into an existing Bill at the last minute.

Thank you for your help in this important matter.

Incoming: Spare Slots for Regular Freelance Work

I will soon have some spare slots in my freelance writing schedule for regular weekly or monthly work. Below are the main topics that I've been covering, some for two decades. Any commissioning editors interested in talking about them or related areas, please contact me at glyn.moody@gmail.com (PGP available).

Free Software/Open Source

I started covering this in 1995, wrote the first mainstream article on Linux, for Wired in 1997, and the first (and still only) detailed history of the subject, Rebel Code, in 2001. For my book, I interviewed the world's top 50 hackers at length, and remain in contact with many of them, as well as with open source coders and companies that have risen to prominence in the last decade and a half, writing about them principally in my Open Enterprise column for Computerworld UK.

Open Access, Open Data, Open Science, Open Government, Open Everything

As the ideas underlying openness, sharing and online collaboration have spread, so has my coverage of related areas such as open access, open data and open science grown. Much of it can be found in the earlier posts on this blog, among the 1400 articles I've written for Open Enterprise, and on Techdirt, where I have published over a thousand posts.

Copyright, Patents, Trade Secrets

The greatest threats to openness comes from its converse: intellectual monopolies. This fact has led me to write many articles about copyright, patents and trade secrets, mainly for Techdirt.

Trade Agreements - TTIP, TPP, TISA

Because intellectual monopolies represent such a threat to free software and open projects, I began writing about the Anti-Counterfeiting Trade Agreement (ACTA) which dealt with them. In fact, I wrote a whole series of articles charting ACTA's rise - and fall.

That, in its turn, led me to write about the even more problematic Transatlantic Trade and Investment Partnership (TTIP) on an even larger scale: to date, I've written some 48 posts about it for Computerworld UK, and many more for Techdirt. Parallel to this, I've written extensively about other trade agreements: the Trans-Pacific Partnership agreement (TPP) and the Trade in Services Agreement (TISA).

Surveillance, Encryption, Privacy, Freedom of Speech

Partly in response to recent revelations by Edward Snowden, and the growing threat to digital rights that they reveal, I have written extensively on surveillance, encryption, privacy and freedom of speech, both for Techdirt and Computerworld UK.

Twitter, identi.ca, Google+

Although the number of people who follow me on Twitter, identi.ca and Google+ is not particularly large - around 25,000 altogether - natural selection over the years has ensured that they are highly interested in the topics mentioned above (otherwise they wouldn't still be following me.)  They include some very active users that re-tweet widely links to my freelance work.

Europe

As a glance at my posts to Twitter, identi.ca and Google+ will indicate, I read news sources in a number of languages (Italian, German, French, Spanish, Portuguese, Dutch, Russian, Greek, Swedish in descending order of capability.)  This means I can offer a fully European perspective on any of the topics above - something that may be of interest to publications wishing to provide global coverage that goes beyond purely anglophone reporting.

Please Write to Your MP to Ask for Parliamentary Scrutiny of TTIP

One of the many big problems with TTIP is the lack of democracy: it is being negotiated behind closed doors, with virtually no input from the public. The texts will be made available once the negotiations are complete, at which point it will not be possible to make changes. Even the national parliaments will be limited to a simple yes or no vote.

The MP Geraint Davies has put forward a motion on TTIP calling for more scrutiny:

"That this House resolves that the Transatlantic Trade and Investment Partnership and any associated Investor State Dispute Settlement provisions should be subject to Parliamentary scrutiny in the European Parliament and the UK Parliament."

It's not much, but it's better than what we currently have, so I would like to urge you to write to your local MP, asking them to support this motion. You can do that either using WriteToThem, or more simply using the 38 Degrees site. Here's what I've written:

As you know, the Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated between the EU and the US is highly contentious. One of its biggest problems is the lack of scrutiny. In order to inject a little more democracy into the process - and to bolster your own key role as representative of the public here - I would like to urge you to support the motion being put forward by Geraint Davies that calls for more scrutiny for TTIP.

Please Write to Your MP about Plain Packaging for Cigarettes

I was disturbed to read in the Guardian that the UK government may be wavering on introducing plain packs for cigarettes.  Failing to do so before the General Election would be seen as a huge victory for the tobacco companies, and have knock-on effects around the world. 

I have therefore written to my local MP, and I'd like to urge you to do the same, asking them to press for the relevant legislation to be laid before Parliament as soon as possible.  You can do that very easily using the excellent WriteToThem service.  Here's what I've sent:

I am writing to you about the introduction of plain cigarette packaging regulations: I was disturbed to read the relevant legislation might not be introduced before the General Election. 

As a journalist who writes about international trade among other things, I have been following closely plans to introduce plain packs around the world.  In particular, I have written about legal action by Philip Morris against both Uruguay and Australia as a result of health measures they have taken to reduce deaths and illnesses caused by smoking (https://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml) 

As you know, what is particularly interesting about these cases is that they use the highly controversial Investor-State Dispute Settlement (ISDS) process in order to claim an indirect expropriation of property.  Since the company is doing this through subsidiaries - one in Switzerland, the other in Hong Kong - it is not even clear whether those cases can proceed. However, it is evident that one of the main reasons Philip Morris is taking this route is to intimidate other countries thinking about bringing in plain packs measures.  Indeed, New Zealand has put its own plans on hold pending the result of the Australian case, which shows that strategy is having its effect.

I would therefore like to urge the UK government to place the regulations governing plain packets before Parliament as soon as possible.  This is vitally important not just for the health of British people, but for millions of people around the world.

If the UK government holds off on its plans to introduce plain packaging, this will be taken as a sign that such a move is likely to be contested by the tobacco companies.  Smaller nations that are unwilling to take the risk of losing what can be punitively expensive cases - Philip Morris is demanding $2 billion "compensation" from Uruguay, a huge chunk of its entire health budget - will be discouraged from joining the global movement to making cigarette packets less attractive to young people.

If, on the other hand, the Government is bold and moves forward with the UK legislation, this will send a very strong signal to nations around the world that it is both morally the right thing to do and feasible in practical terms.  More governments will follow the UK's lead, and it will be impossible for tobacco manufacturers to use crude legal threats to intimidate them as they find safety in numbers.

In other words, the decision on this issue could literally change the course of history in this area. This is not just about helping many thousands of people in the UK to avoid taking up smoking, with its concomitant costs, both in terms of health and money, but about saving millions of lives around the world.  I therefore urge the UK government to bring this legislation before Parliament as soon as possible: every day's delay means more unnecessary suffering and deaths.

Thank you for your help in this important matter.

Response to EU Ombudsman's Consultation on TTIP Transparency

The EU Ombudsman is running a consultation on how to improve the transparency of the TTIP negotiations.  This shouldn't be hard, since there is currently vanishingly small openness about these secret talks.  However, to keep things simple, I have just one very easy suggestion, as my response to the consultation below explains:

My name is Glyn Moody, and I am a journalist who has written over 40 columns on TTIP (available at http://www.computerworlduk.com/blogs/open-enterprise/ttip-updates--the-glyn-moody-blogs-3569438/.) My comments are based on following trade negotiations closely for many years, including those for TPP, TISA and ACTA. Please find below my responses to the consultation's questions.

1. Please give us your views on what concrete measures the Commission could take to make the TTIP negotiations more transparent. Where, specifically, do you see room for improvement?

There is one one very simple measure that would make the TTIP negotiations highly transparent without limiting the European Commission's ability to keep its negotiating strategy secret - something it claims is necessary.

This would be to make all EU documents and proposals public as soon as they are tabled.

There can be no objection that this will reveal the Commission's strategy to the US side, since the latter can, by definition, see all documents once they are on the table. Releasing them to the public would therefore reveal nothing that the US negotiators did not already know. The US cannot object, since it only concerns the EU proposals, and reveals nothing of the US position (not that this should be secret.) In short, no one could possibly object, unless, of course, the real purpose of negotiations being held behind closed doors is precisely to keep the public ignorant of what is nominally being carried out in their name.

2. Please provide examples of best practice that you have encountered in this area.

Negotiations at WIPO go far beyond simply making tabled documents available, as this article explains in detail (http://infojustice.org/archives/30027). Here are the main points:

"The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process."

"WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. "

"WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike."

"Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement."

This clearly shows how complete transparency is possible, and that negotiations can not only proceed under these conditions, but reach successful conclusions.

3. Please explain how, in your view, greater transparency might affect the outcome of the negotiations.

Real transparency - for example, by publishing all tabled documents - would have a profoundly important impact, since it would offer hope that any final agreement would enjoy public support. Without transparency, TTIP will simply be a secret deal among insiders, imposed from above, rather than any legitimate instrument of democracy.

The European Commission's Great TTIP Betrayal

When the European Commission was laying the foundations for the Transatlantic Trade and Investment Partnership - TTIP, also known as TAFTA by analogy with NAFTA - it was doubtless hoping that the public would ignore it, just as it had ignored countless other boring trade agreements. But of course TTIP is not principally a trade agreement: it aims to go far beyond "merely" liberalising trade by attacking "behind the border" barriers.

These "non-tariff barriers" - NTBs - are what you and I call health and safety regulations, environmental protection, labour laws etc. They are all things that make life a more pleasant place - especially in Europe, where they are particularly strong; but they are also things that decrease the profits of companies that must obey them. TTIP is about removing as many of these as possible, so as to boost corporate profits.

Of course, that's not how the European Commission can frame things. Indeed, after the public began to wake up to what TTIP really meant, the commissioner responsible for leading the TTIP negotiations, Karel De Gucht, was forced to make high-profile statements denying that the agreement would lower standards:

Let me be clear on this very important point: we are not lowering standards in TTIP. Our standards on consumer protection, on the environment, on data protection and on food are not up for negotiation. There is no “give and take” on standards in TTIP.

Simple logic tells us that this can't possibly be true. If two completely different regulatory systems are to be brought together - the avowed aim of TTIP - there are only three possibilities. Either the side with the higher standards levels down; the side with the lower standards levels up; or there is mutual recognition of each other's standards. The US has clearly stated that it is not prepared to level up - it won't accept EU bans on chlorine-washed chickens, hormone beef or GMOs.


Mutual recognition, although apparently different, is in fact identical to levelling down: if both regulations are acceptable, manufacturers working to the higher set will be at a disadvantage commercially. They will therefore either relocate their factories to the country with the lower standards, which are cheaper to implement, or lobby for the higher standards to be levelled down, threatening either to leave the country, or shut down. Politicians always give in to this kind of blackmail, so EU standards would inevitably be lowered to those of the US as a result of mutual recognition.


But it has become increasingly clear that there is another way for the European Commission to circumvent its own promises that TTIP will not lower standards. The trick here is that the European Commission will lower standards *before* TTIP; so technically speaking it is not TTIP that brings about that dilution - it occurred "independently". Thus the Commission will be able to put its hand on its heart and swear blind that it kept its word not to sell out EU standards in TTIP, while at the same time changing the regulatory context in such a way that the US will be able to export things that are currently banned by strict EU legislations.


We're seeing more and more examples of this. Here, for example, is how new GMO regulations will allow US companies to bring in GM food:

Genetically modified crops could be grown in the UK from next year after the EU ministers relaxed laws on the controversial farming method.

Maize that has been engineered to resist weedkiller is the first to be approved but all commercial GM crops will not be given the green light for another 10 years.

Owen Patterson, the Environment Secretary, has long supported the introduction of GM crops in the UK and voted in favour of the changes on Thursday.

He said: “This is a real step forward in unblocking the dysfunctional EU process for approving GM crops, which is currently letting down our farmers and stopping scientific development.

Here's how the EU's Fuel Quality Directive, designed to discourage the use of highly-polluting carbon fuels, is being drastically weakened [.pdf]:

Since its inception in 2009, the Fuel Quality Directive (FQD), a European Union regulation aimed at reducing the climate impact of transport fuels, has been attacked by powerful lobby interests that do not want the EU to take action to curtail the use of particularly greenhouse gas intensive fossil fuels.

...

these attempts to weaken this landmark climate policy seem to have been successful. If recent media reports are correct, the European Commission has decided to significantly weaken the FQD and align its regulatory standards with the wishes of the oil industry, the US trade negotiators [for TTIP] and the Canadian government. Compared to a previous proposal from 2011, it would be considerably less effective in cleaning up Europe’s transport fuels and preventing the most climate polluting fuels, including tar sands, from entering Europe.

Most recently, we have learned that the European Commission is preparing to allow endocrine disruptors in pesticides - another key demand from the US side in TTIP. Unfortunately, the source for this information, Inside US Trade, is behind a paywall, so I can't give a link, but will just quote a couple of key passages:

One of the options proposed by the commission in a June 17 "roadmap" is to shift from the current EU approach of banning the use of all endocrine disruptors in pesticides toward a model that could allow them to be used as long as certain steps are taken to mitigate the risk. 

This risk assessment-based model is favored by the U.S. and EU pesticide industries and is the approach employed under the U.S. Environmental Protection Agency's "Endocrine Disruptor Screening Program." Such a model seeks to evaluate both whether a hazard exists and if it can be mitigated by limiting exposure, in order to allow the marketing of an otherwise dangerous product.

As you can see, this amounts to abandoning the EU's Precautionary Principle, and adopting the completely different risk-based approach of the US. Aside from the fact that this shows that the European Commission's promises that standards would not fall, that the EU would not be forced to adopt US approaches, and that public health in Europe would always be safeguarded, were worthless, this also disregards the EU's Treaty of Lisbon, which explicitly states:

Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

What's particularly interesting about the latest move by the European Commission is that the industry sources in the article quoted above point out that it represents a move to a "science-based" approach, something they have been demanding (note, too, that Owen Paterson also spoke of "scientific development" in the passage quoted above.) 

This is part of consistent campaign to paint the Precautionary Principle as "unscientific". In fact, this reframing is precisely what I predicted would happen a year ago. The key point is that "science" in the abstract does not exist: there is a continuum of good science and bad science - where the latter often includes experiments carried out by corporate scientists who miraculously produce results that match their paymaster's desires.

It's not just me saying this. Yesterday the following article appeared in the Guardian on the subject of pesticide research - the area that the European Commission wants to overhaul radically, moving towards a "science-based" approach:

Criticial future research on the plight of bees risks being tainted by corporate funding, according to a report from MPs published on Monday. Pollinators play a vital role in fertilising three-quarters of all food crops but have declined due to loss of habitat, disease and pesticide use. New scientific research forms a key part of the government’s plan to boost pollinators but will be funded by pesticide manufacturers.

That is, as I pointed out, when companies pay for research, they tend to get the answers they want.

“When it comes to research on pesticides, the Department of Environment, Food and Rural Affairs (Defra) is content to let the manufacturers fund the work,” said EAC chair Joan Walley. “This testifies to a loss of environmental protection capacity in the department responsible for it. If the research is to command public confidence, independent controls need to be maintained at every step. Unlike other research funded by pesticide companies, these studies also need to be peer-reviewed and published in full”.

This again is something that I advocated last year. If companies want us to take their results seriously - and in principle I don't have problem with that, provide the science is sound and independent - then they must publish their findings in peer-reviewed journals and, crucially, publish *all* of their results as open data, for anyone to check and explore further. If they won't do that, we will know that they have something to hide.

In the meanwhile, expect the European Commission to start invoking "science-based" approaches to policy more and more, and that these strangely always mean that the European Union should lower its standards to those of the US, which already uses this "tainted" approach.

But however the Commission wants to package this massive shift, and whatever lipstick it puts on this particular pig (sorry, pigs, nothing personal), this is a fundamental betrayal at the very deepest level. It is truly disgraceful - not to mention ungrateful - that at every turn the European Commission seems to prefer to serve US corporations rather than the European public that pays the Commissioners' not-inconsiderable salaries. It's another reason why the whole of TTIP - not just the already terminal ISDS - must be rejected.

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

European Court Of Human Rights Fast-tracks Case Against GCHQ; More Organizations Launch Legal Challenges To UK Spying

Back in December, we wrote about a legal action that a group of digital rights activists had brought against GCHQ, alleging that the UK's mass online surveillance programs have breached the privacy of tens of millions of people across the UK and Europe. In an unexpected turn of events, the court involved -- the European Court of Human Rights -- has put the case in the fast lane: 

On Techdirt.

British Judge Rules Google Can Be Sued In UK Over Privacy Case

The battle over online privacy, and how personal data should be treated as it moves over the Internet, is being fought between the US and EU points of view in multiple ways. There is the EU's Data Protection Regulation, currently grinding its way through the legislative process; there are the discussions about the NSA's spying program, and how it impacts Europeans; and finally, there are various court cases involving US companies and the personal data of EU citizens. One of these is in the UK, where The Telegraph reports that an important decision has been handed down: 

On Techdirt.

A Rare Invitation To Help Shape European Copyright Law

Back in May last year, we wrote about how the European Commission's "Licences for Europe" initiative had turned into a fiasco, with public interest groups and open access supporters pulling out in protest at the way it was being conducted. The central problem was the Commission's attempt to force everything into the straitjacket of copyright licensing, refusing to allow alternative approaches to be discussed. Fortunately, its public consultation on copyright, launched back in December, and closing soon, does not make this mistake, and is broad in scope: 

On Techdirt.

Europe's Highest Court Says DRM Circumvention May Be Lawful In Certain Circumstances

One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well -- something that the copyright industry seems quite untroubled by. Here's an example from Europe involving Nintendo (pdf): 

On Techdirt.

Has The Copyright War Been Won -- And If So, Are We About To Lose It Again?

Reading Techdirt, it's all-too-easy to get the impression that copyright is an utter disaster for the public -- with current laws abused by governments, companies and trolls alike, and international agreements like TPP aiming to make the situation worse. But as Andres Guadamuz points out on his Technollama blog, things aren't quite as bleak as they sometimes seem: 

On Techdirt.

Microsoft Goes Open Access; When Will It Go Open Source?

Even though Microsoft is no longer the dominant player or pacesetter in the computer industry -- those roles are shared by Google and Apple these days -- it still does interesting work through its Microsoft Research arm. Here's some welcome news from the latter: it's moving to open access for its researchers' publications. 

On Techdirt.

In Response To Growing Protests, EU Pulls Corporate Sovereignty Chapter From TAFTA/TTIP To Allow For Public Consultation

Here on Techdirt, we've been writing about the dangers of corporate sovereignty for a while. In recent months, more and more people and organizations have pointed out that the plan to include an investor-state dispute settlement (ISDS) in the TAFTA/TTIP agreement currently being negotiated is fraught with dangers -- and also completely unnecessary given the fair and efficient legal systems that exist on both sides of the Atlantic. It seems that this chorus of disapproval has finally been noticed, in Brussels at least: 

On Techdirt.

Big Pharma Accused Of Patent Plot Of 'Satanic Magnitude' By South African Health Minister

Here on Techdirt we've written a number of times about India's efforts to provide key drugs to its population at prices that they can afford, and how its approach is beginning to spread to other countries. That's a big worry for Western pharma companies, which see their business model of selling medicines at high prices threatened by newly-assertive nations. The latest to join that club is South Africa. 

On Techdirt.

Now That The NSA Has Made It The Norm, Total Surveillance During The Sochi Olympic Games Is No Longer Noteworthy

In addition to being an opportunity to stretch copyright and trademark rules way beyond the law, over the years, the Olympics has also become an occasion when the feeble "because terrorism" excuse is deployed to justify all kinds of additional restrictions on personal freedoms. It will come as no surprise to learn that the Winter Olympics in Sochi, Vladimir Putin's pet project, will continue the tradition: 

On Techdirt.

Will Monsanto Become The NSA Of Agriculture?

Monsanto is best-known for its controversial use of genetically-modified organisms, and less well-known for being involved in the story of the defoliant Agent Orange (the company's long and involved story is well told in the book and film "The World According to Monsanto", by Marie-Monique Robin.) Its shadow also looms large over the current TPP talks: the USTR's Chief Agricultural Negotiator is Islam A. Siddiqui, a former lobbyist for Monsanto. But it would seem that the company is starting to explore new fields, so to speak; as Salon reports in a fascinating and important post, Monsanto is going digital: 

On Techdirt.