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On the Commons
December 2, 2009
A sweeping international treaty to regulate how knowledge and creativity may flow on the Internet is now being negotiated. Haven’t heard of it? Funny thing, that’s exactly what the backers of the treaty want. The film, music, publishing and information industries don’t want a public debate about the issues or an open debate in Congress. So they have been working hand-in-glove with the U.S. Trade Representative to move U.S. policymaking offshore and throw a dark cloak of secrecy around everything. The next stop: draconian penalties for anyone who is accused of violating copyright law.
Details about the treaty are murky. But the latest draft, according to a leak summarized on the Boing Boing website, would require:
That Internet Service Providers (ISPs) have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.
That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet — and hence to civic participation, health information, education, communications, and their means of earning a living — if one member is accused of copyright infringement, without access to a trial or counsel.
That the whole world must adopt US-style “notice-and-takedown” rules that require ISPs to remove any material that is accused — again, without evidence or trial — of infringing copyright. This has proved a disaster in the U.S. and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.
Mandatory prohibitions on breaking DRM [Digital Rights Management systems], even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM).
Who would have guessed that such nasty stuff was embedded in a treaty called the “Anti-Counterfeiting Trade Agreement (ACTA)”? That title was presumably meant to reassure people that it’s a non-controversial measure. But fighting counterfeits seems to be just the cover story. The real goal is to win a backdoor expansion of copyright law, much stronger enforcement powers and greater corporate control of the Internet — all without having to go through that pesky process known as democracy.
If the first subterfuge was the misleading title, the second subterfuge was to call ACTA a “trade agreement” rather than a multilateral intellectual property treaty. A trade agreement can be implemented by the Executive Branch on its own, and does not require congressional approval. An intellectual property treaty would require a congressional vote.
This could turn out to be a fatal legal maneuver, Eddan Katz of the Electronic Frontier Foundation points out in a recent blog post, because an executive agreement like ACTA must “color within the lines of U.S. law.” Yet the U.S. Trade Representative has been quoted as saying that the treatment will “stick as closely to U.S. law as possible.”
Oh, that’s reassuring. As Katz asks: “How can the USTR negotiate an international agreement that sets new global IP enforcement norms requiring changes to U.S. law and policy as an Executive Agreement, without the knowledge or involvement of Congress?” (For more on this point, see Katz’s law review article in the Yale Journal of International Law .)
The bad faith only gets worse. Beyond the misleading title and backdoor legal maneuvers is Very Deep Secrecy. Or more accurately, selective Very Deep Secrecy. Key Washington insiders and corporate players have been granted full access to the draft treaty — but we the little people have been excluded. Wanna read the draft? You can’t. The official rationale is that such disclosures would jeopardize national security. Seriously.
When I blogged about the so-called ACTA treaty — Anti-Counterfeiting Trade Agreement — in March 2009, Public Knowledge and others were trying to open up the treaty process through Freedom of Information Act requests and public pressure. As criticism mounted, the U.S. Trade Representative in September came up with an ingenious “solution” — let a handful of public-interest advocates read the ACTA draft — but only after signing a a non-disclosure agreement (NDA) that prohibits them from publicly discussing it.
NDAs are a standard tool among Silicon Valley tech companies to prevent proprietary secrets from circulating. Notwithstanding President Obama’s other laudable initiatives in open government, this NDA approach to citizen participation is worthy of Dick Cheney or George W. Bush.
Wait, there’s more! Even this form of restricted access is selectively granted. The U.S. Trade Representative (USTR) decided to pick and choose who would be invited to sign an NDA and thus be allowed to read the document (but not talk about it publicly).
This Orwellian farce prompted James Love of Knowledge Ecology International — a long-time critic of ACTA and the USTR — to prepare a petition that has garnered thousands of signatories. The petition reads in part:
The opportunity to see the ACTA documents under the NDA was offered to a large number of business interests, but very few public interest or consumer groups, and there were no opportunities for academic experts or the general public to review the documents.
USTR officials have indicated that this policy of access by invitation and NDA fully addresses the legitimate demands for more transparency of the negotiation, and it is being considered as a model for the future.
We are opposed to this approach because it creates a small special class of citizens who have rights superior to the majority of the population, and because it gives the government too much discretion in deciding who can monitor and criticize its operations. We have no confidence in this new approach.
Some of the people who have signed such NDAs are grateful for the chance to have had special access to some information, but they also feel constrained by the inability to discuss the contents of the documents, and are confident that nothing they have seen constitutes information that in any way would prejudice the national security of the United States if it were in fact disclosed.
In our opinion, the ACTA negotiations would not exist without the support and engagement of the U.S. government, and they are too important to continue under such questionable practices.
The only rationale for keeping the proposed ACTA text from the public is to suppress criticism and critical thinking about the norms that are being proposed. It is Orwellian and an insult to our intelligence to claim that the secrecy of the ACTA text has anything to do with national security concerns, as the term is commonly understood.
A secret process of arbitrary access, conditioned upon signing non-disclosure agreements to block public debate, does not enhance openness and transparency, and does not inspire respect for the norms that will eventually emerge.
[The full petition can be read here. ]
Public Knowledge also prepared a petition as well, which has been signed by the American Association of Law Libraries, Electronic Frontier Foundation, Electronic Privacy Information Center, Future of Music Coalition, Internet Archive and Sunlight Foundation, among others.
Even some Senators are getting upset about the USTR’s high-handed approach to democracy. Senators Sherrod Brown and Bernie Sanders have sent a letter to the USTR asking that the ACTA text be made public:
ACTA involves dozens if not hundreds of substantive aspects of intellectual property law and its enforcement, including those that have nothing to do with counterfeiting. . . . There are concerns about the impact of ACTA on the privacy and civil rights of individuals, on the supply of products under the first sale doctrine, on the markets for legitimate generic medicines, and on consumers and innovation in general.
The Motion Picture Association of America has no qualms about the secrecy. In its own letter to the USTR, the MPAA dismissed such concerns with a wave of the hand: “Outcries on the lack of transparency in the ACTA negotiations are a distraction. They distract from the substance and the ambition of the ACTA…”
You heard right: democratic process is a “distraction.” At a time when the U.S. is trying to rehabilitate its international image and show others how democracy works, the ACTA treaty is not a very good advertisement for the “American way.”
At this point, it’s unclear how the whole misbegotten mess will play out, but there is no doubt that the key players, including the U.S. Government, are trying to use international law to neuter the Internet, subvert the innovation and participation that open platforms enable, and violate people’s privacy and due process rights — all of this without meaningful public dialogue.
I don’t think the USTR or President Obama really want to go there. It would ignite a political and cultural explosion. If they are too frightened to have an open, honest debate at the draft proposal stage — it they are too frightened of the citizenry — imagine the political blowback that will occur if the treaty actually becomes enforceable law. Let’s face it: A public reckoning will have to occur at some point, and the sooner the USTR backs away from the ledge and opens up its deliberations, the better it will be for it, President Obama and the rest of us.
August 9, 2009
An anonymous blogger on the Fearless Blogging site claims to have created the latest Obama Kenyan birth certificate. The allegedly forged document was recently used by attorney Orly Taitz in the U.S. District Court for the Central District of California in a case on behalf of Alan Keyes and others claiming Obama is not born in the United States and is not legally entitled to be president.
The blogger claims to have used cotton business paper, an inkjet printer, a 1940 Royal Model KMM manual typewriter and other items to create the document. “Punkin’ the Birthers,” the blogger writes, “Priceless.”
WorldNetDaily reports that the suspect document was deemed inadmissible in court. “According to the OCRegister, the online site for the Orange County newspaper, a federal magistrate [on Friday] … threw out a request made to the court regarding the document,” WND writes. “The report said Magistrate Arthur Nakazato concluded the document was improperly filed, leaving open the door for it to be refiled.”
Forging an official document is punishable crime and that is probably why the blogger who posted the allegedly fake document — to “punk” the “birthers” — has decided to remain anonymous.
The blogger’s anonymity may hide another possibility — the fake document was planted by Obama operatives or fellow traveler in an effort to further discredit the growing demand that Obama release his birth certificate and finally put the issue to rest.
August 9, 2009
Increasingly, Google and its properties — the vastly popular video site YouTube and equally popular Blogger — are tools for shutting down opposition to the government. On the weekend, Google removed an Alex Jones video critical of Obama’s policies. Google classified the video as “hate speech” because the corporation allegedly received complaints the content of the video was racist. In the video, Alex appears as “Obama the Joker,” as depicted in a now infamous street art poster.
Google shut down the blog of Sibel Edmonds last week.
Google also shut down the blog of Sibel Edmonds last week. Edmonds is a former FBI translator and founder of the National Security Whistleblowers Coalition. Edmonds is fighting efforts by the FBI and the Department of Justice to prevent her from testifying in a case of alleged election fraud. Edmonds is scheduled to testify before the Ohio Elections Commission and both the Department of Justice and the FBI are attempting to halt her from testifying.
On July 31, Edmonds told the Mike Malloy Show the U.S. government had “intimate relations” with Osama bin Laden right up to the day of the attacks in New York on September 11, 2001. “These ‘intimate relations’ included using Bin Laden for ‘operations’ in Central Asia, including Xinjiang, China. These ‘operations’ involved using al Qaeda and the Taliban in the same manner ‘as we did during the Afghan and Soviet conflict,’ that is, fighting ‘enemies’ via proxies,” reported the Brad Blog.
In an email sent today, Edmonds writes about Google blocking her Blogger account. “My Blog Site http://123realchange.blogspot.com is now blocked by Google’s Blogger. They will not let me post during this most sensitive period, when I am about to provide deposition on Foreign US government illegal operations in the United States!”
A few weeks ago I started receiving ‘Google & Blogger warnings’ from my technologically savvy friends and well-wishers, who encouraged me to have a mirror site as a back up and or cease using Google’s Blogger all together. I did take these warnings seriously and started looking at alternatives and other options.
Google told Edmonds her blog is considered “a potential spam blog” and it would be deleted in 20 days. Google admitted its “automatic spam detection” is “fuzzy” and occasionally blogs not involved in spam are “flagged incorrectly.”
123 Real Change, however, was not “flagged incorrectly,” the same as Alex Jones’ videos posted on YouTube were not erroneously singled out to be deleted. Google works directly with the government to remove content.
Google has worked closely with the governments of the U.S., the U.K., Germany, Japan, and most notoriously China to censor content on its websites. Google works directly with China to filter search results on the Google Chinese search engine concerning the Tiananmen Square protests of 1989, sites supporting the independence movements of Tibet and Taiwan or the Falun Gong movement, and other information considered embarrassing or harmful to China’s totalitarian slave masters.
Google has used similar tactics to shut down political opposition in the United States. Fortunately, for the time being Sibel Edmonds is free to post her content elsewhere and not fear the obtrusive hand of Google, so obviously in collusion with the government.
Earlier this year senators John Rockefeller (D-W. Va.) and Olympia Snowe (R-Maine) introduced a so-called “cyber security” bill in Congress. It would establish the Office of the National Cybersecurity Advisor, an arm of the executive branch that would have vast power to monitor and control internet traffic, including the ability to “declare a cybersecurity emergency” and shut down the internet “in the interest of national security” — or more likely, block certain IP addresses with information the government does not want disseminated.
Google’s collaboration with the government — characterizing political videos and blog posts as “hate speech” and “spam” and deleting content and closing down accounts under vague terms of agreement — may not be sufficient for the increasingly dictatorial Obama administration in the near future. Armed with Rockefeller’s internet censorship bill, the administration in the not too distant future may be able to selectively censor websites it deems a threat to “national security.”
One such threat, of course, is the fact Edmonds’ revelations about the phony al-Qaeda and the late CIA asset Osama bin Laden will undoubtedly blow the cover on government complicity in the events of September 11, 2001, and increase exponentially calls for a new investigation, including criminal investigations.
Obama, like Bush before him, is not about to let that happen.
As of Sunday, Sibel’s 123 Real Change blog is back online.
June 1, 2009
A real estate agent in Houston who blogged about Anna Nicole Smith was jailed for contempt last week in a defamation case brought by the late Playboy model’s mother.
Legal experts said bloggers are increasingly the targets of such litigation, which are testing the bounds of free speech.
Lyndal Harrington, who is accused of helping to spread falsehoods that Virgie Arthur married her stepbrother and abused Smith as a child, spent four nights in jail after she failed to comply with a court order to turn over her computer.
The 53-year-old grandmother claimed her computer was stolen during a burglary less than a week after it was subpoenaed.
A police officer testified that he believed the theft was staged and judge Tony Lindsay ordered Harrington to produce the computer by July 2 or she will again face incarceration.
Harrington says she is shocked that she is being sued for comments posted on someone else’s blog to pass the time.
“I just voiced my opinion,” said Lyndal Harrington of her posts about Smith and Arthur on the website “Rose Speaks.”
Like many bloggers, Harrington doesn’t consider herself a publisher and did not realize she could be held liable for her posts.
“I got into this because my business had fallen apart in this economy and it was something to do,” she told AFP. “I developed a lot of friendships with women who are retired or ill at home.”