The Trans-Pacific Partnership agreement, initialed by the delegations of the 12 participating countries in early October, is one of the most talked-about mysteries of our time. The moment the treaty was announced, there was a tidal wave of commentary and criticism: most of it based on previous versions, speculation and a few leaks. Because it won’t be published for months (even years perhaps), nobody really knew what the document actually said.
Then Wikileaks, the on-line bible of revealed secrets, published several leaked sections of what its editors believe is the final edition and the collective groan morphed into an outcry. It was, as the Electronic Frontier Foundation puts it, “all that we feared.” The TPP internationalizes some of the worst inequities and abuses specific signing governments are currently committing and nowhere is that more true than with surveillance and communications repression.
Its measures deepen the illegality of whistle-blowing and broaden who can be held responsible for it. They use copyright law to make online dissent and online scholarship and research much more difficult. And they chop away at the rights to online privacy.
The deal would fundamentally repress the Internet and, while proponents insist that the agreement would not over-ride the specific laws of each country, it allows and even encourages countries to pass more repressive laws.
It is, in short, a nightmare.
The document itself is written to appear balanced and protective of the rights of both the powerful (companies and governments) and the powerless (users). It reads like a speech a parent gives when the kids are fighting over something: “You take this one, she takes that one”. But that seeming attempt at balance is deceptive.
“If you dig deeper, you’ll notice that all of the provisions that recognize the rights of the public are non-binding,” a report from the Electronic Frontier Foundation indicates, “whereas almost everything that benefits rights holders is binding.”
The most egregious measure deals with copyright and trade secrets.
A work is protected during the entire life of the copyright and then another 70 years. Essentially, this means that big companies are going to be able to milk copyright protected material for profit for another several generations. Bad enough for the real creators of that “content”, who typically are forced to surrender the right to their work by the corporate publisher simply to get their work out there, and to get paid for it, but the implications for Internet users and activists is even worse.
The water is made murkier because many progressive people, including artists, seek protection in copyright laws and their insistence on copyright protection has become more intense as the Internet makes copyrighting something of a virtual joke. But, that debate aside, the issue isn’t the existence of copyright but the way governments and companies use it for purposes it was never intended, which was to encourage creativity by protecting it and any financial gain that accrued from it for benefit of the creator.
Copyright now has become one of the tools companies use to defend themselves against online criticism and ridicule. The experience of online spoofers like the Yesmen, whose mocking of newspapers and other establishment information vehicles has rankled powerful forces for years now, is that the first defense against such spoofs has become a copyright violation charge.
In the United States, that development has huge teeth because of the Digital Millennium Copyright Act. Under this law, if someone accuses you of violating a copyright, you must remove the material immediately. You can challenge that in court later but, in the meantime, it has to be gone.
If it isn’t removed, the DMCA allows the accuser to go to the website’s service provider and demand that the provider remove it. If the provider doesn’t, and the copyright violation is upheld, the provider faces fines and penalties that would put a mid-size provider out of business. It’s like punishing a landlord for not throwing a tenant out of their home because they owe someone else money.
Online providers, like May First/People Link (the ISP of this website), have a long history of being hit with and trying to fight off DMCA actions. But while progressive providers like May First do try to resist, most big corporate providers simply take the cheap way out and pull the offending website offline. The material is quashed before any proof of copyright violation is presented to a court, which leaves the actual creators out in the cold with little recourse.
Clearly, such a measure is draconian and it’s become frighteningly popular among countries world-wide. One country, Canada, refuses to apply it. In Canada, all the ISP must do is put a notice on the website that it is being accused of copyright infringement with no other measure required until legal proceedings determine the outcome. The problem under TPP is that, while Canada will be allowed to continue that, every other country in the world is forbidden from adopting it because they hadn’t adopted it when the agreement was signed. In short, everyone is going to use a form of the DMCA to repress criticism and satire.
What’s more, the expansion of the copyright in this fashion is an arrow aimed at the heart of analysis and research since it would make much of what is freely available on the Internet today copyright protected. This plays into the hands of a rapidly growing industry of companies which purchase massive amounts of material so as to profit on its copyright protection. That industry, which will now have 70 years more than the copyright to make money of of people’s work, has become a thorn in the side (and the budget) of universities all over the world.
Say the EFF: “The extension will make life more difficult for libraries and archives, for journalists, and for ordinary users seeking to make use of works from long-dead authors that rightfully belong in the public domain.”
A trade agreement is supposed to be about trade but this one goes on to re-define “trade secrets” in a way that includes a significant percentage of the material whistle-blowers and other information activists publish. For example, while the revelations of Edward Snowden focus on government spying, they also involve corporate activities. This is because government spying agencies do most of their work through contractors or in collaboration with corporations. So this material, which includes almost all the personal data and communications of all Internet users, becomes a corporate “trade secret”.
The treaty potentially turns all on-line human communication into corporate “trade secrets”. While the governments of the U.S. and parts of Europe have been working over-time punishing people who reveal their nefarious spying, this is the first time these governments will be able to use “trade rights” to repress revelations of data theft and surveillance.
What may be most revealing about this part of the agreement is that it focuses primarily on Internet activity. There’s no explanation for this concentration being offered, but it’s clear that a treaty among so many countries makes surveillance and data-theft much easier and more protected internationally.
It boggles the mind that even in writing a trade agreement, these guys find a way to violate privacy. It comes in the section on Domain Registration — the system that regulates the use of domains like “thiscantbehappening.net”. To make the Internet work, Domain Name Service (DNS) has to be regulated and stored accurately in special servers all over the world. That’s so your browser can be sent to the server this website is on (and finally to the site) when you type in its web address (called a Uniform Resource Locator or url). So we at This Can’t Be Happening (like everyone who has as website) have to register the site’s name and server location with a DNS authority — a company specializing in handling and storing that kind of information.
Up to now, you can register your domain and keep your own name (and other information) private. Only the DNS company knows it and doesn’t publicize it. This way, a snooping party (like a government) can’t track you down if they don’t like what’s on your website — a very real problem in many countries of the world.
That privacy is now destroyed. All countries must maintain “online public access to a reliable and accurate database of contact information concerning domain-name registrants.” It’s a recipe for repression because all I have to do to get the name and address of a website owner is to search it on this massive database.
That’s enough to bring a shudder to critical websites world-wide.
It’s stunning that a treaty that is supposed to be about trade can do so much harm to communications but it shouldn’t surprise anyone. The TPP is part of a repressive trend world-wide: the construction of a police-state apparatus that not only controls the Internet but uses it to squash communications.
(Disclaimer: The author is a leader of May First/People Link, an organization mentioned in this article.)