“If you read, write, publish, think, listen, dance, sing or invent, the TPP has you in its crosshairs”


A sign saying "trading profits over people" during a rally to protest the proposed TPP trade agreement and NAFTA Agreement on January 31, 2014 in Toronto, Canada. (Photo: Shutterstock)

A sign saying “trading profits over people” during a rally to protest the proposed TPP trade agreement and NAFTA Agreement on January 31, 2014 in Toronto, Canada. (Photo: Shutterstock)

As President Barack Obama returns from Asia trade talks today, freedom of speech campaigners plan to deliver nearly three million signatures to the White House, gathered over recent weeks on the Stop The Secrecy website.

Freedom of expression campaigners have warned that the Transpacific Partnership trade agreement, which Obama has been negotiating with a dozen Asian governments, will have wide-reaching censorship implications.

With secret negotiations reportedly at a critical stage, campaigners have mounted a global plan to draw the attention to the role that internet providers would play in preventing the free flow of information.

The draft chapter of the Trans-Pacific Partnership Agreement on Intellectual Property— in its current leaked version mandates signatory governments to provide legal incentives for Internet Service Providers (ISPs) to privately enforce copyright protection rules.

The TPP wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving what the Electronic Frontier Foundation call “a copyright maximalist agenda”.

The agreement also proposes wide-reaching alterations to the controversial topic of copyright laws, including laws that require ISPs to terminate their users’ Internet access on repeat allegations of copyright infringement, requirements to filter all internet communications for potentially copyright-infringing material, ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement, efforts to force intermediaries to disclose the identities of their customers to IP rights holders on an allegation of copyright infringement.

While this might be good news for music, film and TV companies – who have seen profits fall off the back of websites such as the Pirate Bay, but a spokesperson for Electronic Frontier Foundation warned the result could be a “cautious and conservative” internet afraid to run into draconian enforcement policies laid out under the new TPP rules.

“Private ISP enforcement of copyright poses a serious threat to free speech on the internet, because it makes offering open platforms for user-generated content economically untenable,” argue EFF.

“For example, on an ad-supported site, the costs of reviewing each post will generally exceed the pennies of revenue one might get from ads. Even obvious fair uses could become too risky to host.”

EFF also warned that ISPs take-down “ask questions later” approach to copyright infringements could give corporations too much power to remove time-sensitive user-generated content, for example a supporting video for an election campaign.

“Expression is often time-sensitive: reacting to recent news or promoting a candidate for election. Online takedown requirements open the door to abuse, allowing the claim of copyright to trump the judicial system, and get immediate removal, before the merits are assessed.”

TPP, which is currently being negotiated between the United States and a dozen major markets in Asia, It is a key plank in Obama’s much feted “pivot to Asia” and could affect up to 60% of American exports and 40% of world trade.

The US-led treaty has proposed criminal sanctions on copyright infringement and – according to EFF – could force internet service providers to monitor and censor content more aggressively, and even block entire websites wholesale if requested by rights holders.

Backed by a number of groups including Avaaz, Reddit, Electronic Frontier Foundation and Open Media International, the anti-TPP coalition is also employing guerrila marketing techniques. These include projecting campaign slogans onto key government buildings in Washington, in an attempt to draw wider attention to the secretive talks, as well as a digital banner that can be easily installed on any website.

The trade negotiations have controversially gone on largely behind closed doors – and while talks are believed to have stalled between Japan and the United States in the latest round – many countries, including Vietnam and Australia, are vociferous advocates.

WikiLeaks’ Julian Assange, who master-minded the release of a rare leaked chapter of the agreement in November, is adamant the deal’s worst aspects lie in its approach to intellectual property.

Speaking when the documents were first published on the Wikileaks website, he observed: “If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons”

He added “If you read, write, publish, think, listen, dance, sing or invent, the TPP has you in its crosshairs.”

OpenMedia’s Executive Director Steve Anderson, told Index “If the TPP’s censorship plan goes through, it will force ISPs to act as “Internet Police” monitoring our internet use, censoring content, and removing whole websites.”

OpenMedia, although based in Canada, has led the charge in co-ordinating the campaign to shed light on censorship aspects of the deal.

“A deal this extreme would never pass with the whole world watching – that’s why U.S. lobbyists and bureaucrats are using these closed-door meetings to try to ram it through. Our projection will shine a light on this secretive and extreme agreement, sending decision-makers a clear message that we expect to take part in decisions that affect our daily lives.”

This article was originally published on April 30, 2014 at indexoncensorship.org

Australia: Authorities want ISPs to police the web

(Image: Shutterstock)

(Image: Shutterstock)

When will Australian governments leave the internet alone? Successive governments have shown an inability to allow Australians to go about the business of using the web and browsing at will. Under previous Labor governments, an obsession grew about the need for a mandatory internet filter system. The system would have screened out sites falling into the “Refused Classification” category. Internet activists and the political opposition guffawed at the suggestion. It was deemed excessive and unworkable.

Australia’s new attorney-general, the prickly George Brandis, claims to be interested in freedoms. He certainly spends time talking about it, having established the new office of “Freedom Commissioner” and claiming that the political left has lost sight of traditional civil rights in favour of select, marginal entitlements. His appointee to the position, Tim Wilson of the libertarian Institute of Public Affairs, is meant to signal a policy shift.

Such a move does little to suggest how actual “freedoms” are going to be protected, let alone promoted. Australia’s legislative regime on rights, in the absence of a constitutionally protected bill of rights, is a quilt work of regulations. These are, as ever, the subject of parliamentary change.

When it comes to internet freedoms, Brandis shows a slightly different suspicion of its workings than his predecessors. But in targeting a form of behaviour he cannot accept, he proves to be on familiar ground. The focus here is not morally righteous in the manner of the pornography filterers, but it is righteous in the sense of protecting financial and economic rights. “The illegal downloading of Australian films online is a form of theft.” Both views share a common strand: a desire to circumscribe the way the net, and information, is used.

Before an audience at the Australian Digital Alliance copyright forum last week, Brandis made mention of how he might go about this. The government will consider various legal means to provide a “legal incentive” for ISPs to collaborate with copyright owners to combat infringements. “This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”

A three-strikes system is being pushed, part of a global drive by developed countries to exert greater control over internet content. France, New Zealand, the United States and Britain are all in the stages of implementing such a program. Users of Australia’s broadband system who allegedly download pirated content will be warned before authorities intervene. This can involve threats of discontinuation from the use of the internet after three warnings. So far, owners of content in Australia have been pressing the government to use a warning system short of disconnection.

The effects of this have already been outlined in some detail. Internet service providers such as iiNet and Optus claim that such a policy move will shift the onus on them to police content. That is Brandis’ suggestion: to convert ISPs into cyber policing outfits that will remove websites hosting “illegitimate” material, thereby restraining downloads by customers.

A few points are worth mentioning. The first is how accountability for infringements can be attributed to an ISP. A ruling by the Australian High Court on the liability of an ISP for allowing the downloading of infringing content is instructive. In 2012, the court unanimously found in a case mounted by 34 studios and television companies against iiNet that the ISP was not liable for authorising copyright infringement.

Roadshow Films v iiNet proved to be a global test case on illegal downloads. It found that iiNet did not have direct power to prevent infringements given its lack of control over the BitTorrent protocol. The only way to prevent violations would have been excessive: eliminating a customer’s Internet access altogether, which would also prevent legitimate uses of it. Indifference to cases of infringement was not the same as authorisation of it. And expecting iiNet to do what the plaintiffs wanted would have resulted in heavy expense, inconvenience and liability for terminating customer accounts.

The other point to make is that such graduated systems are set to fail even as they unduly burden the industry. The experiences in France, New Zealand and the UK have shown them to be counterproductive. Steve Dalby, chief regulatory officer of iiNet, forcefully argues that content should be made available via a system of timely release using such streaming services as Netflix and Hulu. “It can’t be a coincidence that graduated response doesn’t work anywhere else in the world, and making content available in a timely fashion in the US market does work.”

Such suggestions by Brandis cast light on preliminary moves on the part of Australia to import American models of intellectual property law into the domestic system. Australia has been the least disagreeable of the countries involved in negotiating the Trans-Pacific Partnership Agreement with the United States, which contains a substantive chapter on intellectual property.

The intellectual property chapter of the secretly negotiated agreement, obtained by WikiLeaks, suggests the extent the TPP will control the way “protected” content, be it technology, medicine and publishing, will be controlled. Mandatory removals and targeting copyright infringements are fundamental to the changes. The main investors in such an arrangement are US companies who will seek, through the legal regulations in other countries, to control the release of protected material. Aspects of the contentious Digital Millennium Copyright Act have found their way into the agreement.

While the interests of copyright are important to consider, the tendency to control the global Internet via an internationalised copyright regime that coopts ISPs into the role of monitors serves no useful role in preventing infringements. This has the effect of turning a provider of such services into a security service for corporate rights. But it is a trend proving irresistible to all governments, especially those in industrial countries.

This article was posted on February 19, 2014 at indexoncensorship.org

Our last, best, hope?

Technology writer and broadcaster Bill Thompson spoke at the recent ISPA Awards dinner. ISPA, the Internet Service Providers Association, represents the companies that connect us all to the Net, and Thompson called on them to stand up for freedom, however hard that may be.  This is an edited version of his talk.


I first used the internet in 1984/5 when I was a student at Cambridge University sitting at a dumb terminal on an IBM mainframe and  discovered that we could email people both locally and at other universities.  I didn’t know we were using the Internet, of course, because it was just ‘the network’. I had access when I worked at Acorn Computers, and in the early 1990’s ended up at PIPEX, the UK’s first commercial ISP.

A lot of my work at that time revolved around promoting the idea that the Internet was the right way to build the ‘information superhighway’ beloved of Al Gore, Tony Blair and others, rather than closed, proprietary technologies like AOL, Compuserve and the Microsoft Network. These systems were touted as the alternative to the insecure, unmanageable internet, and for a brief period it looked like they might triumph simply because of the marketing effort that went into them, but in the end it was the open net and the open web that came to provide the infrastucture for our networked economies and society.

In the last three decades the internet has become the pipe that delivers the world to us in all the ways that radio and TV used to and all the ways that radio and TV, as one-way broadcast media, never could.  These days there are many countries where it makes far more sense to occupy the offices of the ISPs after a military coup than it does to take over the television stations.

This triumph comes at a cost. We have managed to avoid replacing the cacophony of the somewhat democratic open standards bazaar with a closed-minded architecture of control in which we would be expected to ask for permission to do anything, and would be reliant on Microsoft, AOL  and those who they approve to maintain, develop and deliver innovation, and to charge what they liked for the privilege, but in the process we have built an internet that is almost impossible to manage.

We see it in the chaos of spam, malware and phishing, as well as the impossibility of creating effective filters for material that we’d prefer our children didn’t see, whatever the government may want to believe (and whatever PR hype they may persuade the Daily Mail to print).  Many ISPs would probably prefer a safe, manageable network where they can control what their customers see and do and avoid takedown notices and copyright trolls and excessive legislation to manage illegal and ‘harmful’ content online.  We know what that world looks like – it’s the content industries dream of compulsory digital rights management, premium services and Ultraviolet, but it doesn’t look that attractive to those of us who value the Internet’s creative potential and see it as the foundation of an open society.

We inherited a network which was designed to be open and permissive and to be used by nice people doing nice things. Over the last three decades it has been unleashed onto the world, and the openness of the network has meant that bad people have used it to do bad things, selfish people have used it to do selfish things, and governments have looked for ways to monitor it using the same features that the authors of Tor used to make it hard to monitor.

As a result today’s internet  is more easily used for oppression than openness, and have seen how the US and UK, like China and others, have been reading as much net traffic as they can get their hands on, and how laws have been written to make such surveillance legal.  The latest announcements on filtering mark a move towards deeper monitoring of the material UK net users are downloading, using the argument that we must ‘think of the children’ to justify this.

It may mark the point at which many ordinary users start to worry that the network they increasingly rely on for many aspects of their daily life is in fact the space in which they are most exposed, where their freedom to live their lives without being observed or suspected is most easily removed, because it is just as impossible to enforce the positive freedoms online as the negative ones. We can’t keep people safe from malware or spam, and we can’t tell them they can speak privately or speak openly without fear of reprisal.

ISPs have a real problem here. It’s the one outlined by Tim Wu and Jack Goldsmith in their book ‘Who Controls the Internet?’, where they point out that whatever freedom we may seek online, the net is  delivered to us by companies that have offices and employees and servers, all of which are located in the physical world. For a company to operate  within a territory it has to obey the laws within that territory, and while it seems to be accepted that there’s some wriggle room over how ISPs manage their tax affairs, disobeying court orders – especially secret ones – is generally seen as being a bad idea. Their lawyers don’t like it. Their families wouldn’t like having to say goodbye as senior executives were whisked off to gaol.

Yet these ISPs have become the de facto guardians of our online freedoms. They are the people who built the networks on which the world now runs, and the choices they make about standards, systems, hardware, traffic shaping, pricing plans and who gets to put tapping equipment in their routing cabinets matter.

The only viable solution I can see  is to work with ISPs to re-engineer the network so that it cannot be so easily subverted by the forces of oppression and control that would close the networks, close society and close our imagination.  We created the internet, it is a product of our imagination and our engineering skill and there is very little about it that could not be re-engineered – if we cared enough to do it, and there are no laws that we cannot change to ensure that the regulation of that re-engineered network preserves our freedoms and does not remove them.

If we want the network to be a tool for freedom then we need to design it in the right way, not simply work with what we have inherited.

Our last, best, hope? Metafilter tells me the phrase was coined by Lincoln but used in Bablyon 5 :-)

Further reading
Larry Lessig on Rewriting the Internet
Marco Ament on Lockdown
Adactio on APIs
Anil Dash on the Web we Lost
Tim Wu & Jack Goldsmith: Who Controls the Internet?

UK: BT and TalkTalk challenge Digital Economy Act

Two of the United Kingdom’s largest internet service providers (ISPs) have requested a judicial review be launched into the Digital Economy Act. BT and TalkTalk claim that the act, designed to reduce internet piracy, contravenes European Union legislation. They say the act, which was rushed through parliament before the May general election, will force them to disconnect customer subscriptions on copyright grounds. BT and TalkTalk claim the regulations infringe basic rights and freedoms whilst financially disadvantaging larger ISPs because the legislation will not apply to ISPs with less than 400,000 subscribers.