Australia continues to be part of the so called ‘Coalition of the Willing’, aiming to circumvent international fora in order to cement a more rigid and expansive enforcement regime like the one imposed in the AUSFTA, across the globe.

Treaty making and accession is largely the job of government, there is no constitutional requirement for parliamentary oversight, although as the document explains, the 1996 reforms went a little way to providing at least some parliamentary scrutiny. This really doesn’t help, because at the most formative stages, where it is imperative that the concerns of the public are included, diplomatic secrecy is still very much the default. Whilst insisting that openness, transparency, inclusiveness are paramount, these are generally empty platitudes. There are perhaps sensitive moments where some confidentiality is necessary for diplomats to be candid (and even this is debatable in the dawning of the transparent society) the negotiation and development of a copyright treaty, is not one of those moments. ACTA may begin to raise awareness of the relationship between the people and their government more broadly, and how the two interact and the levels of secrecy and information withheld from them.

At the very least, ACTA is where we must draw the line and reject the circumvention of democracy. It was only due to successive leaks and pressure brought to bear on governments and diplomats by NGOs, academics and political parties that ACTA became a shadow of its monstrous first drafts.

DFAT, however, continues to say “ACTA doesn’t mean any change for Australia”, but it does. It cements bad laws that DFAT allowed the US to impose on Australia via the AUSFTA, and when a belligerent industry is desperately clinging to it, something must be up.

In Australia, ACTA is currently under review by the Joint Senate Committee. It has been signed, but binding action has not been taken. Although the date for submissions have passed, you may still be able sneak a submission if the Committee Secretariat allow it, but otherwise, target the members of the Committee. All Australian citizens that are willing to act can let them know. Write to them. Tweet them. Call their office. Engage with them. Let them know, that you as an Australian citizen, do not stand for policy laundering and the circumvention of democracy by corporate interests. Any opposition we generate, fuels the fight in the EU. Reclaim democracy.

Today we saw thousands take to the streets in Poland in what has become an ongoing protest, the European Parliament’s rapporteur of the Anti-Counterfeiting Trade Agreement resign in disgust at the ACTA charade, the exclusionary and opaque process. We also saw the passing of what is possibly the last opportunity for Australians to stop the ACTA agreement cementing the expansive changes to laws in Australia imposed via the Australian United States Free Trade Agreement (AUSFTA).

There is some debate as to whether there will be any substantive change for Australia, i.e. are we going to have to change our laws? It certainly cements the already draconian laws we have, providing an environment for stricter enforcement and for an expansion of an already bad system, but that is not the biggest issue with ACTA.

The biggest issue is the secrecy in which the agreement was forged. The exclusion of civil society, consumer and civil liberties groups in formative stages, where a belligerent industry intent on disingenuously conflating issues like file sharing with counterfeiting were given open and unfettered access.

ACTA is an example of legislative negligence and a total disregard for evidence in policy making in Australia. Despite the Productivity Commission proclaiming that Australia should be seeking to exclude IP from bilateral and regional trade negotiations because of the obviously damaging changes to Australian law imposed by the AUSFTA, here is DFAT negotiating an agreement that entrenches those bad laws, just as it continues to include those bad laws in the Trans Pacific Partnership Agreement (TPPA). When queried, there is no study or economic assessment that supports the expansion or stricter enforcement of copyright and patents in Australia, except of course for untrustworthy industry research, manufactured to elicit legislative change by deception.

These sentiments, and others, were expressed in the Pirate Party’s submission to the Joint Standing Committee on Treaties. Although the due date has passed, Committee Secretaries are usually more than willing to accept late submissions. Make noise.

Props should go to @OlbrychtPalmer, @piecritic and @akfru for their work in the submission.

Analysis will follow in time. Those that know, understand my current personal situation precludes me from committing time to commenting and analysing the issue. For all comments, I’d recommend contacting Pirate Party Australia as I am informed they will now analyse the documents.

UPDATE: Renai Le May at Delimiter  has quickly picked up on one of the central themes of the documents – consumers were and continue to be excluded from the process. This exclusionary approach is standard practice for the Attorney-General’s Department.

UPDATE 2: Mozart has come straight to the point — what does transparency and open government look like in modern Australia?

UPDATE 3: Michael Lee at ZDNet has a good summary of the issues and themes within the released documents.

Letter from the Attorney-General dated 5 October, and received today, in response to my letter raising the lack of transparency and inclusion in their policy development process.

Summarised by Rick, the Greens/EFA now hold as policy:

— It must be made absolutely clear that the copyright monopoly does not extend to what an ordinary person can do with ordinary equipment in their home and spare time; it regulates commercial, intent-to-profit activity only. Specifically, file sharing is always legal.

— There must be exceptions that make it legal to create mashups and remixes. Quotation rights, like those that exist for text, must be extended to sound and video.

— Digital Restrictions Management should preferably be outlawed, as it is a type of fraud nullifying consumer and citizen rights, but at least, it must always be legal to circumvent.

— The baseline commercial copyright monopoly is shortened to a reasonable five years from publication, extendable to twenty years through registration of the work.

— The public domain must be strengthened.

This is something we’ve always said was part of our goals. To make other parties think about our position, and as Rick says, this is delivery. This is something the Green movement around the world will now be forced to look at, and consider.

Will the Australian Greens consider? You betcha. They already are. As a movement in its infancy, that we are already forcing reactions from political organisations that have now been around for almost 30-40 years is amazing, and as individual parties develop, we are seeing what the possibilities are, and how we can differentiate the movement from any other.^[3]

On the August 24, The Australian revealed that the Attorney General’s Department was convening meetings with stakeholders — except that it had excluded one very important group. You.

The copyright lobby and its many faces and fronts are being given an audience with the Attorney General’s Department and platform on which to pressure ISPs into an industry code for ‘dealing’ with file sharers. Of course, we know what that means – the termination of access on their accusation.

What is very worrying, is that this is being conducted behind closed doors and that the government seems very willing to place the legislative gun to the head of service providers. If there is one thing that the government is transparent about, it is that it will pull that trigger, in attempting to enforce an antiquated monopoly mechanism, with no regard to clear issues with human rights and civil liberties.

We cannot rely on ISPs to protect consumers — when push comes to shove, they will capitulate, so it is important that civil society and political groups and parties all sing the same song — termination, suspension or limitation of access to the Internet for allegations of copyright infringement, or even breaches, are not acceptable or proportional.

Below is a letter sent to the Secretary of the Attorney General’s Department, Mr Wilkins.

Dear Mr. Wilkins,

I write to you seeking clarification of certain issues raised in an article authored by Andrew Colley, published in The Australian on August 24, 2011 entitled ‘A-G in call for talks on online piracy’.[1]

The article cites a spokesperson for the Attorney General’s Department indicating that a meeting had been convened in order to garner the differing positions, need and scope of any governmental intervention.

It is very concerning that there has been no public mention of the meeting convened between stakeholders and that amongst the published list of invited participants there appears to be no representation from consumer organisations or civil society – in fact, the meeting appears to be convened with the specific intention to exclude these stakeholders.

It is even more concerning that organisations like the Australian Content Industry Group, and the dubious studies they have commissioned, which have subsequently been used by the Attorney General as justification for the policy direction of the Australian Government[2] and only released by the organisation after Freedom of Information requests were made by myself to the department, are being given unfettered access, facilitated by the Attorney General’s department to lobby government and industry for the development of an industry code, or to effect legislative changes.

The willingness of government ministers and the Attorney General to so readily facilitate the development of disconnection mechanisms for alleged copyright infringement like those operating in New Zealand, the UK or France, is worrying.

The termination or limitation of access to the Internet on the grounds of violation of intellectual property laws, in this case, copyright, is completely disproportionate, ineffective and a violation of human rights.

That this is done without the oversight or inclusion of civil society in an open forum raises questions regarding the integrity of the democratic process and the willingness of the government to engage and listen to alternative perspectives, economic analysis and academic study.

It is imperative that the government acts in the interest of Australian citizens, recognising the importance of Internet access, protecting the rights of Australian citizens to seek and impart information, knowledge and culture, and works to safeguard due process and fundamental rights. It can do this by being transparent and open in its decision-making and policy development process.

Kind Regards,

Rodney Serkowski

---

[1] http://www.theaustralian.com.au/australian-it/a-g-in-call-for-talks-on-online-piracy/story-e6frgakx-1226120005661

[2] http://www.crikey.com.au/2011/03/16/mysterious-anti-piracy-report-to-be-released-this-week/; http://torrentfreak.com/secrecy-and-darkness-surround-mysterious-900m-piracy-report-110314/ ; http://torrentfreak.com/secret-australian-piracy-report-revealed-and-debunked-110316/

Jonathan McIntosh - CC-BY-SA - Flickr

From a privacy and data protection perspective, the Evaluation report also justifies the conclusion that the Data Retention Directive does not meet the requirements imposed by the rights to privacy and data protection. There are several deficiencies: the necessity of data retention as provided for in the Data Retention Directive has not been sufficiently demonstrated, data retention could, in any event, have been regulated in a less privacy-intrusive way, and the Data Retention Directive lacks ‘foreseeability’

It is without doubt that the justifications for dragnet data retention are reactionary, without proportion and without necessity.

The report stipulates, that whilst there are interesting situations presented where data retention may be used or is ‘indispensible’ to the investigation, these do not constitute a necessity for data retention.

It interestingly also mentions the Commissions justification of the directive by attaching significant importance to retained data which was used to exclude subjects from crime scenes and to verify alibis.

Although these are interesting examples of how the data is used by law enforcement authorities, they cannot be put forward as demonstrating the need for data retention. This argument should be used with caution as it might be misunderstood implying that retention of data is necessary for proving the innocence of citizens, which would be difficult to reconcile with the presumption of innocence.

The report puts forward the use of data preservation as an alternative method for use by investigations of criminal activity, which is basically the securing or ‘freezing’ of metadata (locational and traffic data) relating to the suspect via a preservation order, which could then potentially be made available to law enforcement through  judicial authorisation (i.e. a warrant). This something that would comply with the minimum requirements of the CoE Cybercrime Convention, however the Commission seems intent on persisting with wide-scale data retention because preservation…

…does not guarantee the ability to establish evidence trails prior to the preservation order, and does not allow investigations where a target is unknown, and does not allow for evidence to be gathered on movements of, for example, victims of or witnesses to a crime.

The report gives four principle reasons as to why the wide-scale retention of traffic data as regulated by the EU directive goes beyond what is necessary and is disproportionate.

1. The notion of ‘competent national authority’ is understood differently, and in some cases have led to widespread use of the retained data by too many authorities. The consistency of safeguards across different nations has also led varying degrees of judicial oversight and conditions for access.

2. Two years is far too long, and the majority of requests (86%) have been for data within six months. The majority of EU states have also elected to retain data for no longer than 1 year, suggesting that the maximum period of two years far exceeds what is required or necessary.

3. Security of data is a huge issue. One only has to look to the crippling breaches in the security of private data in the last month to see how vulnerable data can be. In the EU, there seems to have been a ‘patchwork’ of security measures implemented, and although there apparently have been no concrete examples of serious breaches, this does not eliminate the potential for serious breaches.

This issue cannot be taken lightly, as the security of the retained data is of crucial importance to a system of data retention as such, as it ensures respect for all other safeguards.

4. The Directive demands a wide array of telecommunications data is retained, however there is very little information on whether it is necessary to retain all this data, and for the same length of time, thus preventing any meaningful conclusion being arrived at.

In reality, the only thing that can be deduced is that the directive is eroding the fundamental right to privacy, this insidious directive is leading to a situation where the populace is under perpetual surveillance. This report is just one of many, that reiterates that the only way to move forward is to dispense with the directive — repeal. It is an unjustified interference into the privacy of all citizens.

The full 16 page document can be found on the EDPS website.

Dear Mr. Ambassador,

I write to you with regard to events that have transpired on Friday, the gravity of which have led me to question the democratic integrity of the Federal Republic of Germany.

On Friday morning, May 20, German law enforcement officers seized the information technology and communications infrastructure of the Piratenpartei, a legal and officially recognised political party. The seizures have transpired irrespective of the fact that the Party is not suspected of any illegal activity. Media reports suggest that the seizures have occurred as a result of investigations by the French law enforcement organisations into an alleged distributed denial of service attack, and event which itself occurred several months prior to the seizure. French investigators are of the opinion that one of the servers, which provides collaborative services and tools that may be used by the general public, may have been used by an individual or individuals in the planning of the alleged attack. Indeed, it should be noted, that we as a party also use services provided by the Piratenpartei which were affected by these seizures.

German law enforcement officials have not however, seized only the server in question, but instead all servers used by the Piratenpartei for communication and organisation.

The gravity of this situation in where a legal and officially recognised political organisation is paralysed in itself is deeply troubling. It is however compounded by the fact that this event has transpired two days prior to elections which are being held in the Free Hanseatic City of Bremen, in which the Piratenpartei is participating.

The seizure of essential campaign organisation and planning infrastructure is expected to severely hamper and paralyse the electoral campaign of the Party. Both the timing, in its proximity to the election in the State of Bremen in relation to the investigation of an event that transpired some months ago, and the sheer enormity of the seizure of the entire organisational and planning infrastructure, where only a small amount of data located on a single server is required, raise significant concerns about the political impartiality of German law enforcement officials and the sanctity of democratic institutions and processes.

I write to you to pose the following questions: will an inquiry be held regarding the actions of German law enforcement officials, with regards to their proportionality and whether they have interfered with the rights afforded under Article 21 on the Basic Law for the Federal Republic of Germany?

What undertakings will the government of Germany take to ensure that such interference in the political process does not occur again? I thank you for your time, and look forward to your response.

Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

Rick Falkvinge writes:

This means that Eircom can no longer be forced to eavesdrop on its customers to filter out certain parts, and it means that Danish ISPs can no longer be mandated to censor The Pirate Bay and AllOfMP3. Black Internet in Sweden can give the finger to the court order to block The Pirate Bay. Many, many aggressions from the copyright industry stand to just fall flat on their face.

Christian Engström relays a comment from Slashdot user CrystalFalcon which very succinctly relays what the opinion of the Advocate General actually means:

One, no court may impose an ISP with an order to filter, in particular not because of enforcement of copyright monopolies;

Two, such filtering is a reduction of fundamental rights, so

Three, if laws are written requiring an ISP filter or block the internet, such laws must conform to very strict criteria that are applied to laws limiting fundamental rights. They must be effective, they must be proportionate, and they must be defensible in a democratic society. While this sounds like political wishywashing, it has some very specific meanings. It is useful to compare to what laws have been written to prevent terrorism: these laws are held to that standard, which the copyright industry wants badly to supersede. The Attorney General also goes into detail how such laws must be transparent and predictable.

What this does not say is that:

Four, no censorship must ever take place.

Five, no ISP may choose to limit what they present as “The Internet”.

In conclusion:

Six, it has been the modus operandi of the copyright industry to threaten ISPs with “block to our wishes or we’ll take you to court”. This has been their standard operating procedure for the past couple of years, in order to establish enough precendents to get them written into law. Today’s verdict, or potential verdict, gives those ISPs the power to say “go play on the highway, parasites, we have an order from the highest possible court saying no court can force us to do that. We care more about our customers than about obsolete irrelevants”.

Seven, this is the highest court in Europe, referring to the (equivalent of) Constitution of Europe. Thus, there are no courts and no laws that can supersede this. No EU Directive can change this (potential) verdict. The way forward for the copyright industry appears permanently blocked; I hold it as absolutely improbable that they’ll get paragraphs in the referred European Charter of Human Rights that put the copyright monopoly before the sanctity of correspondence, of personal data, and freedom of information.

This on the day New Zealand’s Government have passed insidious disconnection laws that violate human rights.

— Whistle-blower protection
— Source protection
— Source-journalist communications protection
— Limiting prior restraint
— Protection of intermediaries (ISPs)
— Protection from “libel tourism” and other extrajudicial abuses
— Statute of limitations on publishing liabilities
— Process protections

This framework is something that almost all Pirate Parties, including ours, advocate at a national level.