Google Abandons User Rights to Support the TPP

The Trans-Pacific Partnership (TPP) has gained support from what might be considered by some as an unexpected source: Google. The search engine giant has announced in their policy blog that they have come out in support of the controversial agreement.

The Trans-Pacific Partnership has been a hugely controversial agreement ever since it was first revealed by Wikileaks. The agreement is wide-ranging and difficult to encapsulate in a few sentences, but the Intellectual Property chapter alone has raised alarm bells all over the world.

As we previously examined, the agreement would crack down on civil rights online, heavily restrict fair use, introduce criminal liability for otherwise civil matters, degrade personal privacy, greatly expand on censorship, and allow the seizure of your cell phone at the border for the purpose of enforcing copyright to name a few provisions. Little wonder why digital and civil rights organizations have widely condemned the agreement including the Electronic Frontier Foundation (EFF) and Human Rights Watch.

The agreement has faced significant push-back from citizens in every country the agreement, resulting in massive protests all throughout the Asian Pacific ring. In some cases, politicians who were all too gleeful to ratify the agreement have delayed those plans for fear of being voted out of office as was the case in Japan.

Up until now, the perception has always been that one sector that is pushing back against the TPP was the “tech sector”. Not a lot of companies like the idea of being forced to play copyright cop, let alone implement surveillance and censorship measures that would greatly add overhead costs and possibly reduce business. That’s why some were surprised to learn that Google has come out in support of the agreement. In their policy blog, Google announced that the company is supporting the agreement. From the post:

– The Internet has revolutionized how people can share and access information, and the TPP promotes the free flow of information in ways that are unprecedented for a binding international agreement. The TPP requires the 12 participating countries to allow cross-border transfers of information and prohibits them from requiring local storage of data. These provisions will support the Internet’s open architecture and make it more difficult for TPP countries to block Internet sites — so that users have access to a web that is global, not just local.

– The TPP provides strong copyright protections, while also requiring fair and reasonable copyright exceptions and limitations that protect the Internet. It balances the interests of copyright holders with the public’s interest in the wider distribution and use of creative works — enabling innovations like search engines, social networks, video recording, the iPod, cloud computing, and machine learning. The endorsement of balanced copyright is unprecedented for a trade agreement. The TPP similarly requires the kinds of copyright safe harbors that have been critical to the Internet’s success, with allowances for some variation to account for different legal systems.

These points were criticized by Techdirt as being “just wrong”. Little wonder why, but we can expand on that.

One remark was that the TPP provisions “will support the Internet’s open architecture and make it more difficult for TPP countries to block Internet sites”

The agreement itself is clear that censorship is to be the norm:

1. The Parties recognise the importance of facilitating the continued development of legitimate online services operating as intermediaries and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective action by right holders against copyright infringement covered under this Chapter that occurs in the online environment. Accordingly, each Party shall ensure that legal remedies are available for right holders to address such copyright infringement and shall establish or maintain appropriate safe harbours in respect of online services that are Internet Service Providers. This framework of legal remedies and safe harbours shall include:

(a) legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorised storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorised storage and transmission of copyrighted materials;

These provisions do a number of things, but deterring censorship is not one of them. If anything, it encourages censorship. Furthermore, the TPP takes a multi-pronged approach to censorship be demanding the unmasking of domain owners:

Article 18.28: Domain Names
1. In connection with each Party’s system for the management of its country-code top-level domain (ccTLD) domain names, the following shall be available:

[…]

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants

In other words, if someone is operating in a jurisdiction that respects the privacy of a Domain name registrant, their personal contact information must be made public anyway. This opens a very large door to abuse that extends far beyond harassment. If someone is operating a blog that discusses civil rights in another country, and the country’s government is no fan of that blog, then the government in question can find ways to retaliate with a simple database query. In other words, censorship is worsened, not combated.

The second point raised by Google is so far from the truth, it’s almost farcical. The entire analysis we’ve done rebuts this point by saying that it tilts the law completely in the favor of major corporate rights holders at the expense of user rights. There is nothing balanced about it.

Google wasn’t completely on side, though. They did state the following:

The TPP is not perfect, and the trade negotiation process could certainly benefit from greater transparency. We will continue to advocate for process reforms, including the opportunity for all stakeholders to have a meaningful opportunity for input into trade negotiations.

There are two things wrong with this. For one, the possibility for reform is long gone as each country has signed off on the agreement. The agreement is finalized. Even if you take the stance that reforms and flexibility can be undertaken by individual governments, the TPP makes it clear that this is not possible:

2. During the relevant periods set out below, a Party shall not amend an existing measure or adopt a new measure that is less consistent with its obligations under the articles referred to below for that Party than relevant measures that are in effect on the date of signature of this Agreement. This Section does not affect the rights and obligations of a Party under an international agreement to which it and another Party are party.

As we’ve noted countless times, the TPP is clear that these agreements are all or nothing. If you support some measures, but not all, your opinion is irrelevant so far as the TPP is concerned. Either you accept every provision in the agreement, or nothing at all. There is no middle ground that can be legally taken.

Furthermore, the TPP features ISDS provisions which allow corporations to sue governments that interfere with profits or future potential profits should they pass a law that corporation doesn’t like.

For the civil rights perspective, there are two ways in which this endorsement is dangerous for the future of the Internet and accompanying civil rights. The first is the fact that Google is the largest website in the entire Internet. Google offers a wide array of services that are used by many. Do you use Google search? Have you browsed through Google news or dug through scholarly articles with Google scholar? What about your GMail account? Have you used Google Streetview? Are you a user of Google docs? Have you visited a website that uses either Google Adsense or Google Analytics? Have you ever played a YouTube video? Have you toyed around with Google Earth? If you are like 90% of web users, a “yes” will pop up sooner or later. The bottom line is that Google has a lot of power over the web. If that company has endorsed censorship through the endorsement of the TPP, a lot of damage to the web can take place.

Another side of this is that some may view Google’s support of the TPP as a softening stance on the agreement from the “tech sector”. Very few would disagree with the comment that Google does not speak on behalf of everyone on the Internet or the “tech sector” in general, but the perception that the stance is softening plays into the TPP supporters (such as the MPAA, RIAA, BSA, etc.) hands.

Already, many view this move by Google as a betrayal. Since the publication of the policy update, numerous people have spoken out against the move in the comments section. One user writes, “So, the “don’t be evil” era at Google is officially over? I am extremely disappointed that Google would take this stance”. Another user writes, “Wow. Clearly, Google does NOT know their audience.” Another user writes, “Wow, so the TPP may have some questionable benefit for the Internet which makes the rest of it ok. Not! Don’t be evil.” One perplexed user wrote, “This… is….. I don’t even have words of how surprised I am by this. Is this really google endorsed or is this some drunken Friday joke?”

At this point in time, it’s quite apparent that Google’s position isn’t sitting well with a lot of people. The best case scenario for Google is to retract their support for the TPP. Even then, the self-inflicted political damage has already been done.

(via /.)

Drew Wilson on Twitter: @icecube85 and Google+.



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