colombia – Techdirt (original) (raw)

My Testimony To The Colombian Constitutional Court Regarding Online Account Terminations And Content Removals

from the content-moderation-is-necessary dept

This week, I testified remotely before the Colombian Constitutional Court in the case of Esperanza Gómez Silva c. Meta Platforms, Inc. y Facebook Colombia S.A.S. Expediente T-8.764.298. In a procedure I don’t understand, the court organized a public hearing to discuss the issues raised by the case. (The case involves Instagram’s termination of an adult film star’s account despite her account content allegedly never violating the TOS). My 15 minutes of testimony was based on this paper.

* * *

My name is Eric Goldman. I’m a professor at Santa Clara University School of Law, located in California’s Silicon Valley, where I hold the titles of Associate Dean for Research, Co-Director of the High Tech Law Institute, and Supervisor of the Privacy Law Certificate. I started practicing Internet Law in 1994 and first started teaching Internet Law in 1996. I thank the court for this opportunity to testify.

My testimony makes two points. First, I will explain the status of lawsuits regarding online account terminations and content removals in the United States. Second, I will explain why imposing legal restrictions on the ability of Internet services that gather, organize, and disseminate user-generated content (which I’ll call “UGC publishers”) to terminate accounts or remove content leads to unwanted outcomes.

Online Account Terminations and Content Removals in the US

In 2021, Jess Miers and I published an article in the Journal of Free Speech Law (run by the UCLA Law School) entitled “Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules.” The article analyzed all of the U.S. legal decisions we could find that addressed UGC publishers’ liability for terminating users’ accounts or removing users’ contents. When we finalized our dataset in early 2021, we found 62 opinions. There have been at least 15 more rulings since then.

What’s remarkable is how consistently plaintiffs have lost. No plaintiff has won a final ruling in court imposing liability on UGC publishers for terminating users’ accounts or removing users’ content. Though some recent regulatory developments in the U.S. seek to change this legal rule, those developments are currently being challenged in court and, in my opinion, will not survive the challenges.

It’s also remarkable why the plaintiffs have lost. Plaintiffs have attempted a wide range of common law, statutory, contract, and Constitutional claims, and courts have rejected those claims based on one or more of the following four grounds:

Prima Facie Elements. First, the claims may fail because the plaintiff cannot establish the prima facie elements of the claim. In other words, the law simply wasn’t designed to redress the plaintiffs’ concerns.

Contract. Second, the claims may fail because of the UGC publishers’ terms of service (called the “TOS”). TOSes often contain several provisions reinforcing the UGC publishers’ editorial freedom, including provisions expressly saying that (1) the UGC publisher can terminate accounts or remove content in its sole discretion, (2) it may freely change its editorial policies at any time, and (3) it doesn’t promise to apply its editorial policies perfectly. In the US, courts routinely honor such contract provisions, even if the TOS terms are non-negotiable and may seem one-sided.

Section 230. Third, the claims may fail because of a federal statute called “Section 230,” which says that websites aren’t liable for third-party content. Courts have treated the user-plaintiff content as “third-party” content to the UGC publisher, in which case Section 230 applies.

Constitution. Fourth, the claims may fail on Constitutional grounds. In the US, the Constitution only restricts the action of government actors, not private entities. Therefore, users do not have any Constitutional protections from the editorial decisions of UGC publishers. Instead, the Constitution protects the UGC publishers’ freedoms of speech and press, and any government intrusion into their speech or press decisions must comport with the Constitution. Accordingly, in the US, UGC publishers do not “censor” users. Instead, any government effort to curtail UGC publishers’ account termination or content removal constitutes censorship. This means the court cannot Constitutionally rule in favor of the plaintiffs.

This point bears emphasis. Any effort to force UGC publishers to publish accounts or content against their wishes would override the UGC publishers’ Constitutional protections. Unless the Supreme Court changes the law, this compelled publication is not permitted.

The Merits of UGC Publishers’ Editorial Discretion

I now turn to my second point. Giving unrestricted editorial discretion to UGC publishers may sometimes seem unfair. There is often a significant power imbalance between the “Tech Giants” and individual users, and this imbalance can leave aggrieved users without any apparent recourse for what may feel like capricious or arbitrary decisions by the UGC publisher.

I’m sympathetic to those concerns, and I hope UGC publishers continue to voluntarily adopt additional user-friendly features to reduce users’ feeling of powerlessness. However, government intrusion into the editorial process is not the solution.

When UGC publishers are no longer free to exercise editorial discretion, it means that the government hinders the UGC publisher’s ability to cater to the needs of its audience. In other words, the audience expects a certain experience from the UGC publisher, and government regulation prevents the UGC publisher from meeting those expectations.

This becomes an existential threat to UGC publishers if spammers, trolls, and other malefactors are provided mandatory legal authorization to reach the publisher’s audience despite the publisher’s wishes. That creates a poor reader experience that jeopardizes the publisher’s relationship with its audience.

If the publisher cannot sufficiently curb bad actors from overrunning the service, then advertisers will flee, users will not pay to access low-quality content, and UGC publishers will lack a tenable business model that puts the entire enterprise at risk. When UGC publishers are compelled to publish unwanted content, many UGC publishers will have to leave the industry.

Other UGC publishers will continue to publish content—just not user content because they can’t sufficiently ensure it meets their audience’s needs. In its place, the publishers will substitute to professionally-produced content, which the publishers still can fully control.

This switch from UGC to professionally-produced content will fundamentally change the Internet as we know it. Today, we take for granted that we can talk with each other online; in a future where publication access is mandated, we will talk to each other less, and more frequently publishers will be talking at us.

To have enough money to pay for the professionally-produced content, publishers will increasingly adopt subscription models to access the content (sometimes called “paywalls”), which means we will enjoy less free content online. This also exacerbates the digital divide, where wealthier users will get access to more and better content than poorer users can afford, perpetuating the divisions between these groups. Finally, professionally-produced content and paywalls will entrench other divisions in our society. Those in power with majority attributes will be the most likely to get the ability to publish their content and reach audiences; those without power won’t have the same publication opportunities, and that will leave them in a continually marginalized position.

This highlights the unfortunate irony of mandatory publication obligations. Instead of expanding publication opportunities, government-compelled online publication is far more likely to consolidate the power to publish content in a smaller number of hands that do not include the less wealthy or powerful members of our society. If the court seeks to vindicate the rights of less powerful authors online, counterintuitively, protecting publishers’ editorial freedom is the best way to do so.

Closing

I keep using the term UGC publishers, and this may have created some semantic confusion. In an effort to denigrate the editorial work of UGC publishers, they are often called anything but “publishers.” Indeed, the setup for today’s event uses several euphemisms for the publishing function, such as “content intermediation platforms” and “social network management.” (I understand there may have been something lost in translation).

The nomenclature matters a lot here. By using alternative descriptors, it downplays the seemingly obvious consequence that compelling UGC publishers’ publication decisions is government censorship. Reduced editorial freedom provides another way for the government to abuse its power to control how its citizens talk with each other.

Thank you for the opportunity to provide this input into your important efforts.

* * *

The judges asked three questions in the Q&A:

Reposted with permission.

Filed Under: colombia, content moderation
Companies: instagram

Uber Wins Dubious Honor Of Being First Big Tech Company To Bully A Small Nation Using Corporate Sovereignty

from the welcome-to-the-ISDS-club dept

Six years ago, when Techdirt first started writing about the investor-state dispute system (ISDS) — or corporate sovereignty as we prefer to call it — it was largely unknown outside specialist circles. Since then, more people have woken up to the power of this apparently obscure element of international trade and investment deals. It essentially gives a foreign company the ability to threaten to sue a nation for millions — even billions — of dollars if the latter brings in new laws or regulations that might adversely affect an investment. The majority of corporate sovereignty cases have been brought by the extractive industries — mining and oil. That’s not least because many of the laws and regulations they object to concern environmental and health issues, which have come to the fore in recent years. New legislation designed to protect local communities might mean lower profits for investors, who then often threaten to use ISDS if they are not offered compensation for this “loss”.

Big tech companies, for all their real or supposed faults, have not turned to corporate sovereignty as a way of bullying small countries — until now. En24 News reports that Uber is threatening to invoke corporate sovereignty in a dispute with Colombia. According to Uber:

a series of recent measures by the Republic have had a serious adverse impact on Uber’s investments in Colombia and the viability of its operations in the country. On December 20, 2019, for example, through the Superintendence of Industry and Commerce (“SIC”), the Republic ordered Uber, Uber Colombia, and another Uber subsidiary that will virtually cease to make the Uber Platform available of Associated Drivers and passengers in Colombia.

Uber points out:

other companies in Colombia and third countries that offer similar forms in Colombia have not undergone the same treatment and continue to operate in Colombia without similar interference from the Republic.

The company claims a wide range of harms:

The illegal order of the Republic to block the Uber Platform in Colombia also constitutes an act of censorship in contravention of international human rights instruments that protect net neutrality, freedom of expression on the internet and freedom of use of the internet.

At the moment, this is all just saber-rattling, designed to encourage the Colombian government to unblock Uber in the country. If it doesn’t, the company says, it will invoke the ISDS Articles (pdf) of the 2012 United States-Colombia Trade Promotion Agreement, and ask a tribunal to award compensation. Even if the current threat to use corporate sovereignty is not followed through, it is surely only a matter of time before another big tech company joins the ISDS club.

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Filed Under: colombia, corporate sovereignty, free trade agreement, isds, trade agreements, trade promotion agreement
Companies: uber

from the this-is-a-problem dept

In 2011, Colombian graduate student Diego G?mez did something that hundreds of people do every day: he shared another student’s Master’s thesis with colleagues over the Internet. He didn’t know that that simple, common act could put him in prison for years on a charge of criminal copyright infringement.

After a very long ordeal, we can breathe a sigh of relief: a Colombian appeals court has affirmed the lower court’s acquittal of Diego.

How did we get to the point where a student can go to prison for eight years for sharing a paper on the Internet?

Diego’s case is a reminder of the dangers of overly restrictive copyright laws. While Diego is finally in the clear, extreme criminal penalties for copyright infringement continue to chill research, innovation, and creativity all over the world, especially in countries that don’t have broad exemptions and limitations to copyright, or the same protections for fair use that we have in the United States.

In another sense, though, the case is a sad indictment of copyright law and policy decisions in the U.S. Diego’s story is a reminder of the far-reaching, worldwide implications of the United States government’s copyright law and policy. We failed Diego.

How did we get to the point where a student can go to prison for eight years for sharing a paper on the Internet? The answer is pretty simple: Colombia has severe copyright penalties because the United States told its government to introduce them. The law Diego was tried under came with a sentencing requirement that was set in order to comply with a trade agreement with the U.S.

International trade agreements are almost never good news for people who think that copyright’s scope and duration should be limited. By establishing minimum requirements that all countries must meet in protecting copyrighted works, they effectively create a floor for copyright law. It’s easy for signing countries to enact more restrictive laws than the agreement prescribes, but difficult to create less restrictive law.

Those agreements almost never carry requirements that participating nations honor limitations on copyright like fair use or fair dealing rights. Just this week, a coalition of 25 conservative groups sent a letter to the U.S. Trade Representative (USTR) arguing against the inclusion of any provision in the North American Free Trade Agreement (NAFTA) that would require countries to include balanced copyright limitations and exceptions such as fair use, as EFF and other groups have suggested. Countries like Colombia essentially get the worst of both worlds: strong protection for large rights-holders and weak protection for their citizens’ rights.

As we’ve pointed out before, it’s depressing that someone can risk prison time for sharing academic research anywhere in the world. If open access were the standard for scientific research, Diego would not have gotten in trouble at all. And once again, it’s the actions of countries like the United States that are to blame. The U.S. government is one of the largest funders of scientific research in the world. If the United States were to adopt a gold open access standard for all of the research it funds?that is, if it required that research outputs be made available to the public immediately upon publication, with no embargo period?then academic publishers would be forced to adapt immediately, essentially setting open access as the worldwide default.

EFF is delighted that Diego can rest easy and focus on his research, but unfortunately, the global conditions exist to put researchers all over the world in similar situations. No one should face years in prison for the act of sharing academic research. Making the changes in law and policy to prevent stories like Diego’s from happening again is a goal we should all share.

Republished from EFF’s Deeplinks blog.

Filed Under: academic research, colombia, copyright, diego gomez, knowledge, learning

Colombian Grad Student Finally Cleared Of Criminal Charges For Posting Academic Article Online

Three years ago, we brought you the horrifying story of Diego Gomez, a grad student in Colombia. While working on his own research, he relied on and cited a paper that he couldn’t find anywhere else online. As was common practice in Colombia, Gomez uploaded that paper to Scribd so that others could follow his own work and understand his citation. As a research practice, this is a really good idea. Under copyright law, however, it gets stupidly problematic. And it was made much more stupidly problematic by the insane copyright law passed in Colombia — under pressure from the US — which made this a criminal act for which Gomez faced up to 8 years in prison along with monetary fines.

Again, he absolutely did upload someone else’s paper to the internet — but this was an academic paper, it wasn’t for Gomez’s own profit, but for perfectly reasonable academic purposes, to make sure people were better informed. Not only that, but as soon as he found out the paper’s author was unhappy, he deleted the paper from Scribd. And yet he’s spent the past few years dealing with criminal charges over it. Thankfully, just this week Gomez was cleared of any wrongdoing. It just cost him four years of absolute hell. And it’s not totally over yet. While the judge has given a “not guilty” verdict, the prosecutor has already announced plans to appeal.

“I have been cleared. I am innocent,” a delighted G?mez said after the verdict. “When I received the news, after 4 years with so much uncertainty, which is an obstacle in personal and professional life, that was a great happiness. However, knowing that the prosecutor appealed brings uncertainty back.”

EFF has been heavily involved in this case, and note that it shows one of the many problems with countries ratcheting up punishments for copyright infringement often under the guise of “complying with international agreements.”:

Diego?s story also demonstrates what can go wrong when nations enact severe penalties for copyright infringement. Even if all academic research were published freely and openly, researchers would still need to use and share copyrighted materials for educational purposes. With severe prison sentences on the line for copyright infringement, freedom of expression and intellectual freedom suffer.

Diego?s story also serves as a cautionary tale of what can happen when copyright law is broadened through international agreements. The law Diego was prosecuted under was enacted as part of a trade agreement with the United States. But as is often the case when trade agreements are used to expand copyright law, the agreement only exported the U.S.? extreme criminal penalties; it didn?t export our broad fair use provisions. When copyright law becomes more restrictive with no account for freedom of expression, people like Diego suffer.

Indeed. I know that we get a fair amount of pushback from some in the copyright industry whenever we talk about the free speech or chilling effects impact of overzealous copyright enforcement. Time and time again we’re told that these are “anomalies” or that such things are impossible, because why would anyone ever use copyright to stifle someone’s speech. However, I can’t even imagine the horror that Gomez has gone through for the past four years, in which he was literally facing being locked up for years and fines for being a good academic. That’s insane — and so is any copyright law that would allow this to happen.

The fact that Colombian prosecutors aren’t yet willing to drop this case is even more upsetting and concerning. What possible reason do they have for thinking that this case is worth pushing forward like this?

Filed Under: academic research, colombia, copyright, diego gomez

Corporate Sovereignty Used To Bully Ukraine, Colombia And Italy For Protecting Public Health And The Environment

from the profits-before-people dept

Corporate sovereignty provisions in investment treaties have become much better known than they were when Techdirt first wrote about them in 2012. Despite that growing awareness, and widespread outrage at the idea that corporations can request secret supra-national tribunals to make awards of hundreds of millions or even billions of dollars paid from public funds, companies continue to use the system to bully governments into changing their policies. For example, here is the US pharmaceutical company Gilead successfully deploying corporate sovereignty against the Ukrainian government, as originally reported by Investment Arbitration Reporter:

The dispute with Gilead, which Ukraine’s Ministry of Justice had characterized as an $800 million dispute, relates to the drug sofosbuvir (sold by Gilead as Sovaldi). Sovaldi, a highly effective treatment for chronic hepatitis C, has been available in Ukraine — a country reportedly home to over 2 million people infected with hepatitis C — since 2015, but the company has lately been locked in a struggle over the ability of generic companies to market cheaper versions of the drug in Ukraine.

According to details of the settlement released by Ukraine’s Ministries of Justice and Health, the settlement sees Gilead refrain from pursuing its damages claims against the country, and will see the company offer Sovaldi (and a combination therapy called Harvoni) at a reduced price.

Also, following the settlement, a generic competitor of Gilead has seen its own competing drug de-registered by authorities.

By de-registering the generic competitor to Gilead, the Ukrainian government is allowing the US company’s to maintain its monopoly on the drug. In Colombia, the Swiss drug company Novartis also used the threat of a corporate sovereignty lawsuit, in this case to put pressure on the government there to stop it from issuing a compulsory license for a key anti-cancer drug, which would allow low-cost generics to be produced:

Leaked letters (PDF) to the Ministry of Trade and Industry show how Novartis threatened to resort to international investment arbitration for an alleged violation of the Swiss-Colombian bilateral investment treaty (BIT), which was signed by both countries in 2006. This undemocratic procedural mechanism, better known as Investor-State dispute settlement (ISDS), forms part of many trade agreements and allows an investor from one country to bring a case directly against the country in which they have invested before a private international arbitration tribunal, without going through local courts first. This threat has undoubtedly influenced the decision of the Colombian health authorities to stop short of pursuing a compulsory license, focusing only on a price reduction.

It’s not just drug companies that try to use ISDS litigation to force governments to reverse their policies. Here’s an oil and gas exploration company that is unhappy with a decision by the Italian parliament to ban new exploration and production activity within 12 nautical miles of the coast because of concerns for the environment and the high risk of earthquakes:

Rockhopper Exploration is fighting for compensation from Italy after it banned offshore drilling, leaving the company unable to develop one of its oil and gas fields.

The Aim-listed explorer said that it had begun international arbitration against the country for “very significant monetary damages” over the loss of future profits from its Ombrina Mare field.

Since Rockhopper is an oil exploration company, it must have carried out detailed studies on the geology of the field before deciding to drill for oil and gas. Either its geologists were negligent in not spotting that there was a risk of earthquakes which made the area unsuitable for exploitation, or the company knew about the dangers, and decided to continue with its plans anyway. In any case, it’s ridiculous that Rockhopper thinks the Italian government owes it money for “lost future profits” that clearly never existed anywhere other than in the company’s fantasies.

This is a general problem with corporate sovereignty claims: they often invoke some mythical “future profits” as if those were indisputable and guaranteed. But business is based on rewarding calculated risk-taking, and that includes the risk that hoped-for profits never materialize. ISDS is an attempt to remove the risk of investment from companies, and place it squarely on the public’s shoulders, without any quid pro quo.

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Filed Under: colombia, corporate sovereignty, environment, health, isds, italy, ukraine

At The Behest Of Big Pharma, US Threatens Colombia Over Compulsory Licensing Of Swiss Drug

from the destroying-lives,-destroying-peace dept

As Techdirt readers well know, Big Pharma really hates compulsory licensing of its patented drugs, where a country steps in and allows an expensive drug to be made more cheaply in order to provide wider access for its people. Such massive pressure is applied to nations contemplating this move, that even global giants like India quail. A new story is unfolding that reveals just how far companies are prepared to go in order to prevent it from happening. It concerns Colombia’s possible use of a compulsory license for the drug imatinib, sold under the name Glivec, and used to treat leukemia. Despite the fact that the company holding patents on the drug, Novartis, is Swiss, the US has started to lean heavily on Colombia in order to persuade it not to go ahead with the move.

KEI has obtained a copy of a letter from Andrés Floréz at the Embassy of Colombia in Washington, DC, to the Minister of Health in Colombia, reporting on a meeting between embassy officials and Everett Eissenstat. He’s the Chief International Trade Counsel for the US Senate Committee on Finance, under Senator Orrin Hatch. Apparently, Eissenstat conveyed quite forcefully his views on the negative consequences for Colombia if it decided to issue a compulsory license on the cancer drug Glivec:

> Eissenstat mentioned that although Novartis is not an American company, the US pharmaceutical industry was very worried about the possibility that the case would become a precedent that could be applied to any patent in any industry which, according to him, could lead to the reputation of our country’s respect for intellectual property rights being viewed as impaired and Colombia becoming one among those countries that would have special treatment… > > Einssenstat also mentioned that, if the Ministry of Health does not correct this situation, the US pharmaceutical industry and related interest groups could become very vocal and interfere with other interests that Colombia could have in the US.

Nice little country you have there — be a shame if something happened to it. Stat News mentioned a couple of forms that “special treatment” might take:

> A free-trade treaty between the two countries went into effect four years ago, which obligates Colombia to comply with various international trade laws. Florez also cautioned that issuing a compulsory license for the Novartis drug may “weaken support” for bringing Colombia into the Trans-Pacific Partnership, a trade pact between 12 countries in the Asia and Pacific regions that must still be approved by Congress.

But the most extraordinary threat is the following, reported here by KEI:

> Senator Hatch was so opposed to the idea of a compulsory license on the patent for a $40+ Billion cancer drug made by a Swiss company that he was willing to find an extremely sensitive area for the Colombian people and use it as leverage. The [Paz Colombia] peace process in question is the hopeful conclusion to decades of fighting in the country with guerrilla rebels that has led to hundreds of thousands of deaths.

The US is willing to jeopardize the entire “Paz Colombia” peace plan, all because Big Pharma is outraged a developing country might dare to use its international right to issue a compulsory license. As KEI Director James Love commented:

> The use of these back channel methods of conveying threats and pressure is common, and the leak of these two letters provides insight into why governments that have the right to issue compulsory licenses rarely do. The fact that after meeting with Eissenstat, the Colombian Embassy connects the patent dispute to the funding of the Colombian peace process illustrates how the United States can link health and national security together in ways that a harmful to both.

It can surely only be a matter of time before Colombia obediently toes the line, and recognizes that Big Pharma’s patents and profits are much more important than the health and lives of its people.

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Filed Under: colombia, compulsory licensing, everett eissenstat, glivec, health, orrin hatch, threats, trade agreements
Companies: novartis

Destroying Reputations And Hacking Elections For Fun And Profit

from the coming-to-a-presidential-candidate-near-you dept

Although rather forgotten now, one of the most troubling Snowden revelations appeared in 2014, and concerned GCHQ’s “dirty tricks” group known as JTRIG — the Joint Threat Research Intelligence Group. Put simply, its job is to “manipulate, deceive and destroy” reputations. Of course, it would be naïve to think that GCHQ is alone in using these techniques. We can safely assume all the major spy agencies engage in similar activities, but what about other players? To what extent might ambitious politicians, for example, be using these dirty tricks to slime their opponents — and to win elections unfairly?

If a long and fascinating feature in Bloomberg is to be believed, the outcome of presidential elections in Nicaragua, Panama, Honduras, El Salvador, Colombia, Mexico, Costa Rica, Guatemala, and Venezuela were all influenced and possibly even determined by the work of one man, a certain Andrés Sepúlveda, using similar methods to those employed by JTRIG. It’s a great story, and well-worth reading in full. What follows are some of the details that are likely to be of particular interest to Techdirt readers.

Sepúlveda began on a modest scale:

> For 12,000amonth,acustomerhiredacrewthatcouldhacksmartphones,spoofandcloneWebpages,andsendmasse−mailsandtexts.Thepremiumpackage,at12,000 a month, a customer hired a crew that could hack smartphones, spoof and clone Web pages, and send mass e-mails and texts. The premium package, at 12,000amonth,acustomerhiredacrewthatcouldhacksmartphones,spoofandcloneWebpages,andsendmasse−mailsandtexts.Thepremiumpackage,at20,000 a month, also included a full range of digital interception, attack, decryption, and defense.

Eventually, he hit the big time. For $600,000 Sepúlveda is alleged to have helped elect Peña Nieto as the Mexican President in 2012:

> He led a team of hackers that stole campaign strategies, manipulated social media to create false waves of enthusiasm and derision, and installed spyware in opposition offices, all to help Peña Nieto, a right-of-center candidate, eke out a victory.

His team varied from seven to 15 people, and came from all over Latin America:

> Brazilians, in his view, develop the best malware. Venezuelans and Ecuadoreans are superb at scanning systems and software for vulnerabilities. Argentines are mobile intercept artists. Mexicans are masterly hackers in general but talk too much. Sepúlveda used them only in emergencies.

Money was no problem:

> At one point, Sepúlveda spent $50,000 on high-end Russian software that made quick work of tapping Apple, BlackBerry, and Android phones. He also splurged on the very best fake Twitter profiles; they?d been maintained for at least a year, giving them a patina of believability.

But in many ways, Sepúlveda’s most powerful tool was not digital technology, but his understanding of how digital technology had re-shaped the political landscape:

> His insight was to understand that voters trusted what they thought were spontaneous expressions of real people on social media more than they did experts on television and in newspapers. He knew that accounts could be faked and social media trends fabricated, all relatively cheaply. He wrote a software program, now called Social Media Predator, to manage and direct a virtual army of fake Twitter accounts. The software let him quickly change names, profile pictures, and biographies to fit any need. Eventually, he discovered, he could manipulate the public debate as easily as moving pieces on a chessboard — or, as he puts it, “When I realized that people believe what the Internet says more than reality, I discovered that I had the power to make people believe almost anything.”

Of course, that’s true not just for Latin America, but pretty much everywhere else too. Which inevitably raises the following:

> On the question of whether the U.S. presidential campaign is being tampered with, he is unequivocal. “I?m 100 percent sure it is,” he says.

Sepúlveda has no reason to lie. After all, he’s not looking for work anymore:

> He’s serving 10 years in prison for charges including use of malicious software, conspiracy to commit crime, violation of personal data, and espionage, related to hacking during Colombia’s 2014 presidential election.

So the issue is probaby not so much whether dirty tricks of the kind described above are being deployed against US presidential candidates, but rather: by whom, to what end, and with what effect?

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Filed Under: colombia, costa rica, el salvador, gchq, guatemala, jtrig, mexico, venezuela

Colombia Shows How Not To Regulate Drones

from the pedestrian-waving-a-red-flag dept

As a growing number of Techdirt posts on the subject indicate, drones are fast entering the mainstream. But as they become more common, and as more mishaps involving them inevitably occur, so the calls for government regulation grow louder. Fortunately for the rest of us, Colombia has stepped forward to show us some of the things not to do, as a post on PetaPixel makes clear. The new drone regulations are written in Spanish, not unreasonably, but Pablo Castro has put together a useful summary, singling out four key aspects that give a feel for the general approach.

The first is that drone operators are required to take a training course. Fair enough, you might think, but there are couple of problems with the idea:

> [the course] must be taken at an aeronautics school authorised by the Aeronáutica Civil, and to date none has been authorised to teach such courses. > > Also, should they be authorised, several of these schools have confirmed these courses will cost at least $5,000 USD. Oh, and by law they must be renewed every six months.

Then, of course there’s the mandatory insurance. Again, that would be a reasonable requirement were it not for the following:

> no Colombian insurance company offers such coverage for drones at the time of writing this article.

Point three is more subtle:

> we must not fly within a 5km radius of any airport. However, we must make sure we establish radio communication with the nearest airport control tower before and during every flight. > > Yes, that?s correct: all drone operators must own radios with ranges upwards of 5km and capable of the frequencies airports use, the cheapest of which cost more than a DJI Phantom and require a license to operate legally.

The final aspect is that not only must drone operators submit flights plans to the relevant authorities 15 days before they carry them out, but they must also justify why the job can’t be done by conventional aircraft. As Castro remarks:

> This last point contains an obvious hint as to why the Aeronáutica Civil has taken such a drastic stance on drones. It turns out this entity is tightly connected to the handful of aviation companies that used to make thousands of dollars on every flight involving aerial photography, videography, and the like, but with the widespread use of drones, their precious cash cow is dying. So unsurprisingly, corruption is the real motivation behind this new law, not the safety of our citizens.

And if corruption is not an issue, lobbying most certainly will be. As drones become more common and more capable, we can doubtless expect to hear calls for regulations restricting them in various ways. The justification may be “safety” or “national security”, but in many cases, the real reason will be the fears of the traditional aviation companies that they are about to be replaced by much-cheaper drone-based services.

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Filed Under: colombia, drones, regulations, uavs

Colombian Student Facing A Minimum Of Four Years In Prison For Uploading An Academic Article To Scribd

from the yeah,-nothing-excessive-about-this-sort-of-enforcement dept

Upload a document to Scribd, go to prison for at least four years. Ridiculous and more than a bit frightening, but in a case that has some obvious parallels with Aaron Swartz’s prosecution, that’s the reality Colombian student Diego Gomez is facing. In the course of his research, he came across a paper integral to his research. In order to ensure others could follow his line of thinking, Gomez uploaded this document for others to view.

According to Gomez, this was a common citation practice among Colombian students.

The important thing is to make a correct citation, attributing researchers’ work by indicating their name and year of publication and, of course, not claiming the work of another researcher, but to recognize it and value it. Therefore, what we usually do is to reference the findings and make them available to those who need them.

The paper’s author obviously disagreed and sued Gomez. But unlike civil lawsuits in the US, copyright-related lawsuits in Columbia carry with them the threat of imprisonment.

Under the allegations of this lawsuit, Gomez could be sent to prison for up to eight years and face crippling monetary fines.

To be clear, Gomez did not try to profit from the paper. He also wasn’t acting as some sort of indiscriminate distributor of infringing works. But under Colombian law, none of that matters. But to really see who’s to blame here for this ridiculous level of rights enforcement, you have to look past the local laws, past the paper’s author and directly at the US government.

[Gomez] is being sued under a criminal law that was reformed in 2006, following the conclusion of a free trade agreement between Colombia and the United States. The new law was meant to fulfill the trade agreement’s restrictive copyright standards, and it expanded criminal penalties for copyright infringement, increasing possible prison sentences and monetary fines.

More details on the awfulness of Colombia’s law (spurred on by US special interests) are available in the EFF’s earlier coverage. Colombia gave the US copyright industry everything it wanted in order to secure this free trade agreement… and then it just kept going.

Colombia passed a criminal reform bill in 2006 that enacted many of these provisions, but Bill 201 goes even further. Under it, copyright infringers could face harsh criminal penalties, whether or not the individual is aware of committing infringement. It sets up severe penalty provisions including a minimum prison sentence of four years and significant monetary fines.

This 2012 bill compounded problems existent in the 2006 free-trade agreement.

Like previous US FTAs, it misleadingly defines “commercial scale” to include non-commercially motivated infringement, forcing US trading partners to adopt the US legal standard.

This bill was hastily passed as a welcoming gift for President Obama, shoved through the legislative process in order to get out ahead of the administration’s appearance at a Colombia-hosted conference. This deference to the US government could cost Gomez at least four years of his life.

While Colombia seemed very eager to take the worst parts of US copyright law (and make them even more terrible), it was less inclined to take any of the good.

Colombia does not have flexible fair use system like in the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and are narrowly tailored to some specific situations that are not at all applicable to the digital age. Therefore none of these will apply directly to his case even if it was done for educational purposes.

The only silver lining here is that the court still needs to consider two aspects before making its decision: mens rea and whether there was any actual economic harm to the author. On the first factor, it seems pretty clear Gomez didn’t upload the document to purposefully “rob” the author of his earnings. On the latter, Gomez never made a cent from his infringing upload and actually took it down when he discovered Scribd was planning to charge unregistered users to download papers.

Beneath all of this lies the ugly reality of the academic research market. Just as in the US, plenty of useful information is locked up and inaccessible to anyone unable to afford the frequently exorbitant fees charged by various gatekeepers. Copyright’s original intent — “to promote the progress of science and the useful arts” — isn’t served by this behavior. Instead, it’s deployed to further separate a large percentage of the population from knowledge. And in Colombia, it’s being used to imprison someone actively “promoting the progress of science.”

Filed Under: academic publishing, academics, colombia, copyright, criminal, diego gomez, fair use, free trade, free trade agreement, international obligations, knowledge, sharing

The Day Counterfeit Jerseys Saved Soccer

from the fake-it-until-you-make-it dept

While it’s calmed down some, there was a great deal of talk about the horrific dangers of counterfeit products during the SOPA and ACTA campaigns. For some reason, professional sports jersey knockoffs in particular seem to get IP holders knickerbockers in a twist, resulting in fun little American traditions like the annual pre-Super Bowl website takedown bonanza. Now, we’ve discussed before why knockoffs generally aren’t a major threat to legitimate apparel producers, or the sports leagues, but this is not one of those posts. Instead, this is the story of how knockoff jerseys saved soccer, or futbol if you’re one of those people who wants to kick us Americans in our guardless shins over that kind of thing.

Down in Colombia, visiting soccer (futbol, whatever) team Independiente Santa Fe took a break from having a cool-sounding name to play a soccer (okay, futbol) match against Boyaca Chico. Now, here’s a lesson for all of us that sucked too hard at the sport to play and had to be team managers: double check your damned luggage. See, whoever was in charge of bringing ISF’s “away” uniforms on the trip took a nap instead, leaving the team with only their warmups and numbers taped to their backs. As it turns out, Colombia’s climate closely resembles a sauna and the Macgyver-inspired unis weren’t cutting it. There was talk of aborting the game entirely, because Boyaca Chico refused to allow their adversaries to wear their home uniforms, until:

A Santa Fe staffer ran outside the stadium and bought counterfeits from vendors for about $6 each, then used red marker to write the numbers on the back of the shirts. Santa Fe took the pitch to start the second half donning their own team’s fake jerseys, but still went on to drub Boyacá Chicó, 2-0. This concludes our daily reminder to not be a dick.

Meaning that the great Colombian fake-jersey industry not only saved the match for the fans at the stadium, but also taught the home team a valuable lesson: karma is a bitch and it wears a $6 uniform. So thank you, counterfeit jersey sellers, for filling in the gaps where sports team logistics fails. And fair thee well until February, when the NFL will be sending the feds to kick down your doors.

Filed Under: boyaca chico, colombia, counterfeits, independiente santa fe, shirts, trademark