indonesia – Techdirt (original) (raw)

Stories filed under: "indonesia"

Indonesia Wields New Censorship Law To Block Yahoo, Paypal, And Several Gaming Websites

from the call-it-what-it-is dept

Early last year, Indonesia implemented a new internet regulation law. Referred to as “MR5,” the law gave the government the power to engage in widespread blocking of content. Not only did the law create intermediary liability, it required any site offering services to Indonesian representatives to register with the government. On top of that, service providers were expected to give law enforcement full access to any user content, including private communications and privately stored content.

On top of the normal sort of illegal content, service providers were supposed to proactively monitor user content to remove “prohibited information,” a catch-all term that includes such uber-vague things like content that “creates community anxiety” and blasphemy of the government’s preferred god(s). Providers are also supposed to monitor internet traffic to detect circumvention efforts, like VPN usage.

The law survived a legal challenge later that year. Indonesia’s apparently misnamed “Constitutional Court” said the law was constitutional. And it gave the government the power to pull the plug on platforms and services that did not comply with its draconian demands.

The law is finally starting to pay off for the Indonesian government. The residents of the country not so much, as this report from Reuters explains.

Indonesia has blocked search engine website Yahoo, payments firm PayPal and several gaming websites due to failure to comply with licensing rules, an official said on Saturday, sparking a backlash on social media.

[…]

Semuel Abrijani Pangerapan, a senior official at Indonesia’s Communications Ministry, said in a text message websites that have been blocked include Yahoo, PayPal and gaming sites like Steam, Dota2, Counter-Strike and EpicGames, among others.

These companies apparently called Indonesia’s bluff. But the government wasn’t bluffing. While other US companies like Meta and Alphabet engaged in some last-minute filings, these companies did not, leading to the government engaging in court-blessed plug-pulling.

While people may be able to tolerate the loss of Yahoo and access to game libraries, they’re not to tolerate losing access to their money. Blocking PayPal inevitably means separating people from funds or a source of funds. The backlash has worked… at least in terms of one of the sites blocked.

Semuel Abrijani Pangerapan, a senior official at Indonesia’s Communications Ministry, told an online briefing on Sunday the government is opening access to PayPal for five working days.

“Hopefully that is enough time for users to migrate, get their money and find other services,” he said, adding that there had been no communication yet from PayPal.

That won’t be nearly enough time. It’s unlikely every Indonesian with a PayPal account is aware of the blocking. People who’ve broken no laws (nor insulted the government’s gods) are losing access to their own money simply because the Indonesian government feels it needs to directly control foreign internet companies. And if you can show you have foreign tech behemoths comfortably under your heel, you’ll greatly reduce the amount of local dissent you’ll have to deal with.

This is how the government is spinning this move:

Authorities would unblock the websites if they comply with registration rules, Semuel said, defending the measure as protection for Indonesian internet users and the digital ecosystem.

Cutting Indonesians off from their money doesn’t really sound like “protection.” And if you’re willing to unilaterally eliminate access to services and platforms used by millions of residents, you’re not really “protecting” the “digital ecosystem.” All the government is doing is protecting itself. This move solidifies its grip on the internet and makes it clear to service providers all over the world it has no qualms about hurting its own citizens to maintain this control.

Filed Under: censorship, content blocking, content moderation, indonesia, intermediary liability, mr5
Companies: paypal

Indonesian Court Gives The Government Permission To Pull The Plug On The Internet Whenever It Feels Threatened

from the just-going-to-steer-clear-of-that-whole-'checks-and-balances'-things dept

The government of Indonesia is taking greater direct control of the internet. Over the past several months, it has implemented a new law that places a ton of burdens on platforms and service providers that deal extensively with content created by third parties.

The new law — referred to as MR5 — is pretty much the inverse of Section 230 immunity that sites in the United States enjoy. Intermediary liability is the name of the game in Indonesia. Providers are ordered to take down content that could cause “community anxiety” and instructed to keep a look out for any ways people might be sharing such forbidden content.

This means providers are not only expected to police their services and platforms for content they can see but also head off circumvention efforts, like the use of VPNs. On top of that, providers are expected to engage in continuous monitoring of content and create filters that will block content the government finds upsetting, including gambling, blasphemy (but only against state-approved deities), and the always meaningless catchall, “fake news.”

The law has been made even worse as the EFF reports. Providers and platforms are already expected to police content. A recent ruling by an Indonesian court says it’s perfectly legal for the government to pull the plug on the internet at its discretion.

Indonesia’s Constitutional Court dealt another blow to the free expression and online privacy rights of the country’s 191 million internet users, ruling that the government can lawfully block internet access during periods of social unrest. The October decision is the latest chapter in Indonesia’s crackdown on tech platforms, and its continuing efforts to force compliance with draconian rules controlling content and access to users’ data. The court’s long-awaited ruling came in a 2019 lawsuit brought by Indonesia NGO SAFEnet and others challenging Article 40.2b of the Electronic Information and Transactions (EIT) Law, after the government restricted Internet access during independence protests and demonstrations in Papua. The group had hoped for a ruling reining in government blocking, which interferes with Indonesians’ rights to voice their opinions and speak out against oppression.

Now, even if local companies comply with the dozens of demands foisted upon them by MR5, they can still expect to see their services shut down if the government feels too much forbidden content is in circulation or if it feels threatened by the content created by presumably unhappy residents. A directive like this is created for a single purpose: to prevent organization of protests criticizing the government. At any point, the government can decide there’s enough “social unrest” to justify shutting down the most popular means of communication.

And all of it dovetails nicely into the long list of restrictions and mandates that are already in force. The government will have minimal problem pulling the plug since all service providers are required to register with the government and store user data locally. Foreign platforms and service providers are required to store data locally as well and create local offices, which will make it much more difficult for them to remain live should the government decide an internet blackout is warranted.

This is a consolidation of power aided and abetted by the court system in Indonesia. This will insulate current rulers from efforts to remove them from power. Without the internet, activists, dissidents, and opposition parties are cut off from each other, preventing them from reaching the critical mass needed to depose the people who have stripped away their freedoms. Under the guise of protecting the public from questionable content, the Indonesian government has given itself enough power to ensure its directives aren’t questioned, much less disobeyed.

Filed Under: indonesia, internet, internet shutdown, mr5

Attacks On Internet Free Speech In Malaysia And Indonesia Demonstrate Why Section 230 Is So Important

from the intermediary-liability-is-all-about-free-speech dept

Two separate stories from Southeast Asia help demonstrate why intermediary liability protections like Section 230 are so important for free speech online (and why it’s positively ridiculous that some have argued that 230 is an attack on free speech). The first is an article about a court case in Malaysia, in which a small independent media site has been fined an astounding amount: $124,000 over five reader comments that a court said violated the law. Notably, the website in question, Malaysiakini, had removed those comments relatively quickly. But the court said that the removals weren’t fast enough:

A seven-judge appeals court panel found Malaysiakini guilty of contempt of court and ordered it to pay a fine of nearly $124,000, more than double the amount sought by prosecutors, for five comments left by readers.

There was a conflict of interest here: the five comments were insults about the judiciary who then went on to issue the fine itself. The court argued that Malaysiakini should have pre-vetted every comment before allowing them on the site:

The readers? comments were posted on a story about the Malaysian judiciary, which closely guards its reputation. They were later removed from the article, but not quickly enough to avoid charges.

In their verdict, the judges concluded that Malaysiakini should have vetted the comments and refrained from posting those that constituted contempt of court.

The site argued — quite reasonably — that it shouldn’t be held liable for user comments, but the court rejected that argument.

The panel rejected defense arguments that Mr. Gan and the news outlet were not legally responsible for their readers? comments and that prosecutors should have been required to prove that they intended to publish scandalous material.

The article goes on to note what a massive chilling effect this will have for speech in Malaysia, where most media organizations are propaganda operations for the government. Malaysiakini is one of a group of small independent sites that have been known to challenge the government (another such site, Sarawak Report, was blocked in Malaysia and resulted in all of the website Medium being blocked in Malaysia for a few years after the site started publishing on Medium.

Of course, this shouldn’t be a surprise. Right after the mess with Sarawak and Medium, the Malaysian government put in place a new law that focused on removing intermediary liability protections for service providers, so the government could hold them liable for speech it disliked. And now we see how that’s working out.

That’s also why people should be very, very concerned about what’s happening nearby in Indonesia, where a truly draconian new intermediary liability regulations has been proposed. Rather than protecting intermediaries that enable speech, this law — called MR5 — seems designed to lead to widespread censorship. The law will require websites to register with the government, and must give law enforcement full access to any user content — including private communications and private storage. Companies based outside of Indonesia are still required to appoint a local contact or they could be blocked entirely.

As for intermediary liability, a key part of the law is that a website must takedown “prohibited information” even when posted by a user — but that includes any information that “creates community anxiety” or lets people know how to access such content:

This language is extremely concerning. Compelling Private ESOs to ensure that they are not ?informing ways” or ?providing access? to prohibited documents and information, in our interpretation, would mean that if a user of a Private ESO platform or site decides to publish a tutorial on how to circumvent prohibited information or content (for example, by explaining how to use VPN to bypass access blocking), such a tutorial itself could be considered prohibited information. Use of a VPN itself could be considered prohibited information. (The Communications Minister has told Internet users in Indonesia to stop using Virtual Private Networks, which he claims allow users to hide from authorities and put users? data at risk.)

The speech restrictions go pretty far as well:

Article 9(3) includes within ?prohibited content and information? any speech that violates Indonesian law and regulations. GR71, a regulation one level higher than MR5, and the later Law No. 11 of 2008 on Electronic Information and Transactions, both use similar vague language without offering any further definition or elucidation. For example, Law No. 11 of 2008 defines ?Prohibited Acts? as any person knowingly and without authority distributing and/or transmitting and/or causing to be accessible any material thought to violate decency; promote gambling; insult or defame; extort; spread false news resulting in consumer losses in electronic transactions; cause hatred based on ethnicity, religion, race, or group; or contain threats of violence. We see a similar systematic problem with the definition of ?community anxiety? and ?public order,? which fails to comply with the requirements of Article 19 (3) of the ICCPR.

Additionally, Indonesia?s criminal code considers blasphemy a crime?even though outlawing “blasphemy” is incompatible with international human rights law. The United Nations Human Rights Committee has clarified that laws that prohibit displays of lack of respect for a religion or other belief systems, including blasphemy laws, are incompatible with the ICCPR. When it comes to defamation law, the UNHRC states that any law be crafted with care to ensure it does not stifle freedom of expression. The laws should allow for the defense of truth and should not be applied to other expressions that are not subject to verification. Likewise, the UNHRC has stated that ?laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the ICCPR imposes on States parties to respect for the right to freedom of opinion and expression.? Criminal defamation law has been widely criticized by UN Special Rapporteurs on Free Expression for hindering free expression. Yet under this new law, any speech that violates Indonesian law is deemed prohibited.

In addition, the law appears to deputize website operators to spy on their users and block any such content.

MR5 also obliges Private ESOs (except cloud providers) to ensure that their service, websites or platforms do not contain and do not facilitate the dissemination of such prohibited information or documents. Private ESOs are then required to ensure that their system does not carry prohibited content or information, which will in practice require a general monitoring obligation, and the adoption of content filters. Article 9 (6) imposes disproportionate sanctions, including a general blocking of systems for those who fail to ensure there is no prohibited content and information in their systems.

It will not be surprising to learn of stories like the first one above concerning a Malaysian publication to happen in Indonesia under this law as well.

This is one reason why Section 230 is so important to free speech. But letting the websites themselves determine what content they’re comfortable with hosting, rather than threatening to fine them out of existence if any “bad” content gets through, it means that there are places for a wide variety of content online. What Malaysia has already done, and what Indonesia is doing now, is a way to truly censor critics of the government, and to make sure that they have no corner of the internet to speak out against government corruption.

Filed Under: comments, free press, free speech, indonesia, intermediary liability, malaysia, section 230

YouTube Lets Indonesian Government Block Satirical Video That Criticizes The Indonesian Government

from the you're-not-helping dept

Recent protests in West Papua have made things uncomfortable for the Indonesian government. The protests were triggered by recordings of Indonesian military personnel taunting Papuans and calling them racial slurs. The Indonesian government responded to the protests by shutting down internet access and seeking to arrest a prominent West Papua civil rights lawyer for allegedly spreading “fake news.”

West Papua was formerly its own nation but it was handed over to the Indonesian government in 1969 following a “free choice” voting process that saw about 1,000 “delegates” chosen by the Indonesian military override the will of the country’s residents, making it officially a province under the Indonesian government’s control. That’s obviously not working out well for Papuans.

If you’re wondering how West Papua has arrived at this flash point, this hilarious/disturbing video produced by The Juice Media explains the whole thing. And it explains the Australian government’s complicity in the Indonesian government’s subjugation of the West Papuan people. (NSFW language throughout. Here’s an annotated script if you’d rather read about it.)

That explains where the nation is at now, and why its people want to be free of their Indonesian overlords. It also explains why no one nearby is riding to their rescue, since it’s clear the Australian government would rather maintain its ties with the regime presiding over West Papua than try to help clear a path to independence.

That also explains why The Juice Media was recently informed this video can no longer be viewed in Indonesia. It appears the government has filed a legal complaint targeting the video embedded above, resulting in it being blocked in Indonesia.

For whatever reason, The Juice Media is completely unable to challenge this decision by YouTube. A screenshot of the account’s dashboard doesn’t even show the complaint, nor does anything sent to the account by YouTube explain what law was broken or which government entity filed the complaint.

The problem with YouTube complying with local laws is that many local laws are written solely for the purpose of making censorship easier. Allowing the Indonesian government to target content it doesn’t like to keep its citizens from learning more about its abuses just ensures more abuses will occur. The cycle will continue until someone decides the spread of information is more important than staying in the good graces of authoritarians.

Filed Under: australia, censorship, free speech, honest ads, indonesia, satire, streisand effect, west papua
Companies: the juice media, youtube

Indonesian Court Convicts Woman Of Criminal Defamation For Recording Her Boss Trying To Harass Her Into An Affair With Him

from the we've-heard-the-complaints-and-move-to-prosecute-the-person-harmed dept

Let’s hear it for prosecutorial discretion!

A school bookkeeper in Indonesia who recorded her boss’s lewd phone call as proof she was being harassed must serve at least six months in prison for distributing obscene material, the country’s Supreme Court has ruled.

[…]

Her boss, who goes by the single name Muslim, as is common in Indonesia, was the principal at Senior High School Seven in Mataram, Lombok’s largest city. Ms. Nuril recorded him using explicit language and hounding her to have an affair. He was never punished for harassing her and instead has been promoted repeatedly.

To be fair, we have to consider the extremely unfair political/human rights atmosphere in Indonesia, where women are expected to put up with sexual harassment and sexual assault if they expect to hold onto their jobs. And this definitely is a case of prosecutorial discretion — a case in which prosecutors decided to press charges against the person who recorded evidence of workplace harassment, rather than the government employee who harassed her.

This recording was shared with others, who then shared it with other people. Once enough people had heard it, the asshole known only by the name “Muslim” decided to file a complaint. This prosecution for criminal defamation — that is, Muslim claimed he was defamed by a recording of him saying and doing harassing things — has led to a six month jail sentence and a $35,000 fine. If the fine isn’t paid, it’s two more months in jail for the harassment victim.

But let’s not get carried away with feeling better about living in an open society like ours in the US of A, land of the free and begrudging proponent of civil rights. We hear a lot of talk here about “prosecutorial discretion,” especially when bad laws are being written, passed, or enforced. Our prosecutors tend to believe they’re tough but fair and possessors of hearts of gold, but we looooove to punish victims just as much as more “backwards” societies.

On multiple occasions, prosecutors have levied child porn production charges against teens who have sent naked photos of themselves to other teens. If that charge can’t be made to stick, prosecutors labor long and hard to find some way to stick stupid teens with lifetime sex offender labels simply for doing stupid teen things like sexting.

Our prosecutors also punish victims of school violence and harassment. In at least one case, a bullied student who recorded his bullies was hit with criminal charges for trying to document these attacks by other students. School administrators have also called the cops on students who surreptitiously record conversations with school officials, claiming these violate state wiretap ordinances.

The fine people in law enforcement have, for years, abused state wiretapping laws to punish bystanders for recording abusive police behavior. And there are dozens of cases of negligent homicide generated every year that punish crime victims for being the victims of crime. Our prosecutors will even charge a mother for “killing” an infant, when it was actually an off-duty cop doing double the speed limit blowing through a red light and demolishing the minivan containing the now-dead infant.

Are we really better than other countries that treat perpetrators of sexual oppression as “victims” of crimes? Maybe. But not by much. We may have a better system of recourse, but the qualified immunity doctrine has allowed many perpetrators of crimes and rights violations to walk away untouched from allegations of abuse and misconduct.

No, this is an institutional problem all over the world. The phrase “prosecutorial discretion” can routinely be taken to mean “the stupidest, most-abusive prosecutions” will result from any law that can be twisted to serve government employees who choose to behave badly.

Filed Under: defamation, free speech, indonesia, sexual harassment

Indonesia Government Introduces Vague Law Making Offensive/Embarrassing Memes Illegal

from the u-mad-bro? dept

Confession time: I think memes generally suck. Yes, yes, I know you love them, but when I think of memes, I tend to think of political memes on Facebook that I then have to drop Snopes.com links into the comments on, stupid copyright trolling over them, and that time Axl Rose tried to DMCA a meme so that nobody would see that he dipped into the chocolate fudge too much recently.

Which is why I’m going to move to Indonesia, where the government has decided it’s time to put a strict control policy on any memes it finds offensive, embarrassing or that incite fear.

Its Electronic Information and Transactions Law (ITE) punishes any electronic media communication that incites fear or embarrassment under its defamation article. The public has continuously called for the article’s removal, but instead Indonesia is introducing more restrictions to freedom of expression. Posting memes, texts, pictures, or videos would be punishable if found to have a defamatory or slanderous tone.

And, hey, what could possibly go wrong? After all, nobody actually wants to defend memes that incite fear, or are defamatory or slanderous, do they? And nobody wants to be embarrassed, right? Well, as per usual when it comes to censorship codified in law, the devil is in the nearly complete lack of details.

According to the Indonesian government, this provision stands to prevent and control cyberbullying. But it can further be used as a political tool against opposition during elections. Citizens reproach this act, as there are no clear rules that define what is considered offensive. The government decides and is often ambiguous about it.

Since its implementation in 2008, 200 people have been prosecuted according to data from the Southeast Asia Freedom of Expression Network. Among the most notable cases, was the prosecution of Prita Mulyasari in 2009 for complaining about Omni International Hospital services on an online mailing list.

In other words, by crafting the law in about the most ambiguous manner possible, the Indonesian government can simply make up on the spot what it considers offensive, defamatory, and all the rest. This inoculates them against memes as a political tool. And the idea of a complete dearth of political memes sounds like heaven, except that a government that would ban them is exactly the kind of target for which they would be appropriate.

Dressing up censorship in language to do with stopping offense and fear is an age-old tactic, one that those of us that believe in free speech should not let stand in any corner of the world. Free the meme, Indonesia!

Filed Under: cyberbullying, free speech, indonesia, memes, offensive

Wikileaks Reveals Super Injunction Blocking Reporting On Massive Australian Corruption Case Involving Leaders Of Malaysia, Indonesia & Vietnam

from the no-free-press-for-you dept

We’ve written about the problems of so-called super injunctions in the past (though mainly in the UK). This legal process not only keeps certain details under wraps concerning a lawsuit, but actually forbids the media from reporting on anything related to the case at all. Such a thing would be clear prior restraint and not allowed in the US, but apparently is considered legal in other parts of the world. However, Wikileaks has now revealed what appears to be a super injunction against reporting on a massive corruption case in Australia, involving the leaders of Malaysia, Indonesia and Vietnam, along with people at Australia’s central bank, the Reserve Bank of Australia:

The super-injunction invokes ?national security? grounds to prevent reporting about the case, by anyone, in order to ?prevent damage to Australia’s international relations?. The court-issued gag order follows the secret 19 June 2014 indictment of seven senior executives from subsidiaries of Australia’s central bank, the Reserve Bank of Australia (RBA). The case concerns allegations of multi-million dollar inducements made by agents of the RBA subsidiaries Securency and Note Printing Australia in order to secure contracts for the supply of Australian-style polymer bank notes to the governments of Malaysia, Indonesia, Vietnam and other countries.

The suppression order lists 17 individuals, including “any current or former Prime Minister of Malaysia”, ?Truong Tan San, currently President of Vietnam”, “Susilo Bambang Yudhoyono (also known as SBY), currently President of Indonesia (since 2004)”, “Megawati Sukarnoputri (also known as Mega), a former President of Indonesia (2001?2004) and current leader of the PDI-P political party” and 14 other senior officials and relatives from those countries, who specifically may not be named in connection with the corruption investigation.

The document also specifically bans the publication of the order itself as well as an affidavit affirmed last month by Australia’s representative to ASEAN Gillian Bird, who has just been appointed as Australia’s Permanent Representative to the United Nations. The gag order effectively blacks out the largest high-level corruption case in Australia and the region.

It’s the reasoning given that’s most troubling:

The purpose of these orders is to prevent damage to Australia’s international relations that may be caused by the publication of material that may damage the reputations of specified individuals who are not the subject of charges in these proceedings.

It’s difficult to see how that’s a legitimate reason to completely hide the entire case from public view, when it appears to cover a variety of important matters of which the public should be aware. If some people may be embarrassed about this, even as they’re not subject to the charges in the proceedings, then they should easily be able to explain that fact. There are lots of lawsuits that will embarrass some people (even those not directly subject to the case). But we don’t hide them when they deal with everyone else. The decision to do it here really smacks of the “high court” / “low court” distinction between the treatment those in power receive vs. what those not in power do.

Filed Under: australia, corruption, free speech, gag order, indonesia, journalism, malaysia, super injunction, vietnam
Companies: rba, reserve bank australia

Corporate Sovereignty Provisions Called Into Question Around The World

from the ISDS-is-*so*-twentieth-century dept

A couple of weeks ago, we noted that Germany just threw a big spanner in the TTIP works by calling for corporate sovereignty provisions to be excluded. Although perhaps the most dramatic repudiation of investor-state dispute settlement (ISDS), it’s by no means the only one. Indeed, the tide really seems turning, as country after country calls into question the need to put corporations on the same level as entire nations. For example, according to this report from the Yonhap News Agency, South Korea wants to re-visit the corporate sovereignty chapter in its trade agreement with the US:

> South Korea plans to hold talks with the United States to rework the investor-state dispute (ISD) clause in their two-year-old free trade pact that has long been cited by critics as being unfair, a government source said Sunday.

That’s possible because of the following prescient move by South Korea at the time of the trade agreement’s signing:

> To receive parliamentary approval, Seoul forwarded a proposal to lawmakers that promised a “reevaluation” of the ISD clause down the line.

One country that has already “re-evaluated” ISDS, and found it wanting, is South Africa, as Techdirt explained at the end of last year. But the Lexology site reports that it could soon be joined by another major economy:

> According to the Netherlands Embassy in Jakarta, Indonesia has informed the Netherlands that it has decided to terminate the Bilateral Investment Treaty between the two nations from 1 July 2015. The Embassy also states that “the Indonesian Government has mentioned it intends to terminate all of its 67 bilateral investment treaties”.

Once more, it seems that painful experiences of corporate sovereignty played their part in the decision:

> it would not be surprising if the Churchill Mining Plc v Indonesia cases (ICSID Cases ARB/12/14 and 12/40) have prompted more sweeping action by the Indonesian Government. Churchill and Planet Mining Pty began arbitration against the Indonesian government in May 2012 at ICSID in Washington. On 24 February 2014 the ICSID Tribunal rejected Indonesia’s jurisdictional challenges leaving Churchill free to proceed with a claim for damages of not less than US$1.05bn, excluding interest. This decision has caused outrage in Indonesia.

That outrage is understandable, since it will be the Indonesian public that will have to foot the billion-dollar bill if the ISDS tribunal rules against Indonesia. In a way, the almost unfettered power of corporate sovereignty has become its own worst enemy. The possibility of making claims for billions of dollars has naturally caught the attention of both the public and politicians in the nations affected, prompting many to re-consider the wisdom of agreeing to this kind of one-sided bargain.

If Indonesia does indeed start terminating its 67 bilateral investment treaties, we can expect other countries to take note and consider following suit. One knock-on effect will be that US insistence on putting corporate sovereignty provisions in TPP will begin to look distinctly out of place in a world where prudent nations are starting to move away from them.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: corporate sovereignty, indonesia, isds, south africa, south korea, tafta, tpp, ttip

Latest Leak Shows NSA Spied On A US Law Firm Representing A Foreign Government In A Trade Dispute

from the the-business-of-the-spy-business-is-apparently-business dept

Remember the limitations imposed on the NSA by the administration’s minor reform efforts? Recently, ODNI director James Clapper “released” a copy-paste job on a month-old presidential directive that included this paragraph:

“in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.

As I noted then, the NSA must be following these guidelines going forward because the most recent leak published at the New York Times shows the agency using its powers to “afford a competitive advantage to US companies/business sectors.”

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States…

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

This gives the agency a bit of deniability, depending on how it phrases its response (or if a specific response ever arrives — it only offered boilerplate earlier). It didn’t spy on the US law firm, another agency did. It’s just when the Australian agency offered to share the info, the NSA didn’t say no. Instead, it offered “guidance” and recommended Australian intelligence keep intercepting attorney-client communication.

The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.

On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”

The paths towards plausible legality are twofold. Attorney-client communications are not specifically protected from NSA surveillance by US law and the agency is more than welcome to intercept communications involving a foreign intelligence target, like Indonesian officials. At this point, minimization is supposed to kick in and remove information related to non-targeted US persons. The NSA’s canned answer deliberately avoids the specifics of the leak.

In a statement, Ms. Vines, the agency spokeswoman, said: “N.S.A. works with a number of partners in meeting its foreign-intelligence mission goals, and those operations comply with U.S. law and with the applicable laws under which those partners operate. A key part of the protections that apply to both U.S. persons and citizens of other countries is the mandate that information be in support of a valid foreign-intelligence requirement, and comply with U.S. attorney general-approved procedures to protect privacy rights.”

This would seem to be an admission by omission. If there’s no immediate answer or plausible deniability, simply pass along the agency’s mission statement as a “response.”

This isn’t the first time the agency has performed surveillance on behalf of US trade entities. As we’ve covered earlier, evidence of economic espionage in Brazil had previously been exposed and the New York Times is apparently in possession of other documents showing more trade-related spying.

A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations.

“The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”

So, the new guidance (as of January 17th) supposedly prevents the NSA from deploying surveillance for economically-motivated reasons. That’s of small comfort considering the agency has denied performing this sort of surveillance in the past, continually asserting that its interest is solely in national security, even as more evidence mounts that its intelligence “customers” include US businesses and trade groups.

Even if the NSA did nothing more than “offer guidance,” there’s still an object lesson in this story: no matter who you are, no matter where your country of origin, you’ll always be someone else’s “foreigner,” and afforded none of the minimal protections that your own country grants you.

Filed Under: edward snowden, indonesia, james clapper, leak, nsa, odni

After India, Now Indonesia Introduces Patent Licenses For Generic Versions Of Drugs

from the who's-going-to-be-next? dept

As we noted a couple of weeks ago, when we wrote about India’s moves to issue compulsory licences for the production of generic versions of expensive, patented drugs, the big fear for Western pharmaceutical companies was that other countries might follow suit. It looks like that’s happening in Indonesia, where the country’s president has signed a decree authorizing low-cost versions of key HIV drugs:

> the measure would introduce widespread generic competition and generate major cost savings in the world’s fourth most populous country. The decree licenses patents for a slate of HIV medicines, and represents one of the most robust uses of pharmaceutical patent licensing power by a country since the World Trade Organization 1995 Agreement on Trade-Related Aspects of Intellectual Property (WTO’s TRIPS).

Again, the concern for the major drug manufacturers must be that this latest move will encourage even more countries to start granting patent licenses for drugs needed by their populations, but which are currently unaffordable thanks to Western-level pricing. Indeed, it’s hard to see what can stop that happening now that India and Indonesia have shown the way by invoking the right of countries to issue compulsory patent licenses, as enshrined in TRIPS.

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Filed Under: drugs, india, indonesia, patents, pharmaceuticals