ISDS: the crown jewel for global plutocracy

Wikileaks has publicly exposed another chapter of the Trans-Pacific Partnership agreement, and in effect, has delivered a massive blow against this secret, multinational trade deal. This time it was the text on Investment, which has, among many other things, language on what’s called “investor-state dispute settlement,” or ISDS for short. This investor-state process essentially enables corporations to file lawsuits against governments—federal or state/provincial—over policies that the company claims harms their investments or “expected future profits.”

There have been ISDS cases involving oil companies suing small countries, like Ecuador, which tried to enact rules to protect the forests and rivers. There have been cases where an energy company sued a country for deciding to shut down its nuclear power plants. And there have been cases where a court found that an over-broad medicine patent was invalid, leading the pharmaceutical company to challenge the ruling in an ISDS process.

I’ve briefly ranted about ISDS before. Now that we’ve seen the text, we can confirm it’s utterly as evil as we expected it to be. This is about corporations having sovereignty, and having the power to challenge government rules, even if the law was passed democratically and is seen as totally legitimate in the eyes of the people. Given all the other provisions in trade agreements, such as those on “Intellectual Property”, ISDS enables corporations to challenge the way government interprets those provisions as long as the corporation can claim that the law stifled their profit-making abilities.

Think about that.

These rules mean that private industries can unravel public-interest policies, through the singular, self-interested justification that their ability to make money has been made more difficult…Since when do companies have an unalienable right to profit, at the expense of everyone else’s concerns?

More importantly, why the hell are public officials selling us out to mega-corporations? Are they just getting lobbied so hard, and have become so intimate with myopic corporate representatives as to believe that this is remotely compatible with an actual functioning democracy?

 

stream of consciousness: march 2015

this is a stream of consciousness—i’m writing anything that comes to my mind.

On Friday I went to the dentist and they fixed a tooth that got chipped while I was eating a bowl of salad I made with Trader Joe’s fancy Red Quinoa. This particular tooth was already fucked up—a snaggler that jutted out taller than the others on the front bottom row of my mouth. In middle school, when my appearance became a sudden and painful new part of my every day consciousness, I was really embarrassed of it. I covered my mouth when I laughed to avoid people noticing it. But eventually I got over it and didn’t care anymore. Every time I changed dentists and they asked me if I wanted braces, I’d defend its right to stay. “It’s fine and it’s not gonna hurt me right?” But on Friday they changed it. They first added whatever gunk they put on it to account for the missing chip, then asked me if they should just file it down. “Uhhh…Yeah.” I nodded, while my mouth was held open. “Great! It’ll only take a second.” When they started, I realized that it’d lose it’s charm. My teeth would be boring now. I’d lose my ability to make weird bite marks on apples…! But it was too late. They had an electric filing device in my mouth filing that lil’ guy down…

~

Saxophones haven’t been cool for as long as I remember. It was at its pinnacle while John Coltrane and Charlie Parker ruled the jazz scene. But then who killed it? Kenny G might’ve been the first wave of uncooling, then was the sexy sax man the final nail in the coffin or was it just making fun of the complete utter deadness of its cool? Anyway, I think it’s creeping back into the mainstream. It’s in that Ariana Grande song, in Macklemore’s Thriftshop, and Big Gigantic does it electronica-styles.

One night a few weeks ago I was under-the-influence wandering around the Internet and I found this Tiny Desk Concert session with Moon Hooch. They sounded nothing like anything I’ve heard before, despite being just three white dudes who looked like they just got plucked out of Humboldt County. I was hypnotized by their performance, recorded in that awkward little NPR studio. So I immediately bought tickets to see them when I saw that they were coming to SF.

The show was on Friday and it was pretty amazing. As Andrew said they were a mix between being really talented musicians and being strangely comedic in their performance. I feel the same way, but I wonder if it’s just because I still can’t shake the thing about saxes being the butt-of-the-joke instrument. But that actually made me enjoy the show MORE. I feel like I mostly see the same instruments being played on stage, and while I appreciate talent with those, they’re just something extra eventful about seeing that kind of artfulness with instruments you don’t usually enjoy. So yeah, it was good.

~

In the bathroom I found this sticker on the stall door. This is how I feel about writing/painting/reading:

FullSizeRender

– fin –

I'm proud of this one.

I wrote a piece for my job this week about how the White House has started to intensify its propaganda campaign about Fast Track and the Trans-Pacific Partnership agreement, and I think it’s in the top 10 best blog posts I’ve written at EFF. It even got republished in TechDirt, which is a first for me!

Thought about writing somethin’ else for my weekly personal blog post, including some reflections I had about an interview I did with a libertarian trade policy analyst about trade policy, or how much I enjoy the annual Chinese New Year Treasure Hunt that I just did for the third time over the weekend. But I’m just going to re-post the piece I did for EFF cause I just don’t have much writing juice flowing through my brain and fingers atm. Here it is below!

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The White House Has Gone Full Doublespeak on Fast Track and the TPP

Sen. Ron Wyden and Sen. Orrin Hatch are now in a stand-off over a bill that would put secretive trade deals like the Trans-Pacific Partnership (TPP) agreement on the Fast Track to passage through Congress. The White House meanwhile, has intensified their propaganda campaign, going so far as to mislead the public about how trade deals—like the TPP and its counterpart, the Transatlantic Trade and Investment Partnership (TTIP)—will effect the Internet and users’ rights. They are creating videos, writing several blog posts, and then this week, even sent out a letter from an “online small business owner” to everyone on the White House’s massive email list, to further misinform the public about Fast Track.

In a blog post published this week, the White House flat out uses doublespeak to tout the benefits of the TPP, even going so far as to claim that without these new trade agreements, “there would be no rules protecting American invention, artistic creativity, and research”. That is pure bogus, much like the other lies the White House has been recently saying about its trade policies. Let’s look at the four main myths they have been saying to sell lawmakers and the public on Fast Track for the TPP.

Myth #1: TPP Is Good for the Internet

First, there are the claims that this agreement will create “stronger protections of a free and open Internet”. As we know from previous leaks of the TPP’s Intellectual Property chapter, the complete opposite is true. Most of all, the TPP’s ISP liability provisions could create greater incentives for Internet and content providers to block and filter content, or even monitor their users in the name of copyright enforcement. What they believe are efforts toward protecting the future of the Internet are provisions they’re advocating for in this and other secret agreements on the “free flow of information”. In short, these are policies aimed at subverting data localization laws.

Such an obligation could be a good or a bad thing, depending on what kind of impact it could have on national censorship, or consumer protections for personal data. It’s a complicated issue without an easy solution—which is exactly why this should not be decided through secretive trade negotiations. These “free flow of information” rules have likely been lobbied for by major tech companies, which do not want laws to restrict them on how they deal with users’ data. It is dishonest to say that what these tech companies can do with people’s data is good for all users and the Internet at large.

Myth #2: Fast Track Would Strengthen Congressional Oversight

The second, oft-repeated claim is that Fast Track would strengthen congressional oversight—which is again not true. The U.S. Trade Representative has made this claim throughout the past couple months, including at a Senate Finance Committee hearing in January when he said:

TPA puts Congress in the driver’s seat to define our negotiating objectives and strengthens Congressional oversight by requiring consultations and transparency throughout the negotiating process.

Maybe we could believe this if the White House had fought for Fast Track before delegates began negotiating the TPP and TTIP. Maybe it could also have been true if that bill had ensured that Congress members had easy access to the text and kept a close leash on the White House throughout the process to ensure that the negotiating objectives they outlined were in fact being met in the deal. However, we know from the past several years of TPP negotiations, that Congress has largely been shut out of the process. Many members of Congress have spoken out about the White House’s strict rules that have made it exceedingly difficult to influence or even see the terms of these trade deals.

The only way Fast Track could really put “Congress in the driver’s seat” over trade policy would be if it fully addressed the lack of congressional oversight over the TPP and TTIP thus far. Lawmakers should be able to hold unlimited debate over the policies being proposed in these deals, and if it comes to it, to amend their provisions. It would be meaningless if the new Fast Track bill enabled more congressional oversight, but if it did not apply to agreements that are ongoing or almost completed.

Myth #3: Small Online Businesses Would Benefit from Fast Track

Then the third misleading claim is that Fast Track would help small businesses. Their repetition of this has become louder amid increasing public awareness that the TPP has primarily been driven by major corporations. What may be good for established multinational companies could also benefit certain small online businesses as well. The White House says that tariffs are hindering small online businesses from selling their products abroad, but research has shown that the kinds of traditional trade barriers, like tariffs, that past trade agreements were negotiated to address are already close to non-existent. Therefore it is unclear what other kind of benefits online businesses would see from the TPP.

Even if there were some benefits, there are many more ways that the TPP could harm small Internet-based companies. The TPP’s copyright provisions could lead to policies where ISPs would be forced to implement costly systems to oversee all users’ activities and process each takedown notice they receive. They could also discourage investment in new innovative start-ups, even those that plan to “play by the rules”, due to the risk that companies would have to sink significant resources into legal defenses against copyright holders, or face heavy deterrent penalties for infringement established by the TPP.

Myth #4: TPP and Other Secret Trade Deals Are a National Security Issue

The last, and most confounding of the White House’s assertions is that the TPP and TTIP are an “integral part” of the United States’ national security strategy, because its “global strategic interests are intimately linked with [its] broader economic interests.” As we have seen with the U.S. government’s expansive surveillance regime, “national security” is often invoked for policies even if they directly undermine our civil liberties. It is hard to argue with the administration whether the TPP and TTIP are in fact in the United States’ economic or strategic interests, since only they are allowed to see the entire contents of these agreements. Either way, it seems like a huge stretch to say that we can trust the White House and major corporate representatives to determine, in secret, what is in fact good digital policy for the country and the world. We may be hearing this line more and more in the coming weeks as the White House becomes more desperate to legitimize the need for Fast Track to pass the TPP and TTIP.

Conclusion

The fact that the White House has resorted to distorting the truth about its trade policies is enough to demonstrate how little the administration values honesty and transparency in policy making, and how much the public stands to lose from these agreements negotiated in secret. The more they try and espouse the potential gains from Fast Track—while the trade agreements this legislation would advance remain secret—the more reason we ought to be skeptical. If the TPP is so great and if Fast Track would in fact enable more democratic oversight, why are the contents of either of them still not public?