referendum – Techdirt (original) (raw)

Stories filed under: "referendum"

The EU-Canada Trade Agreement CETA Still Isn’t Done, And May Be Partially Undone Because Of Its Corporate Sovereignty Provisions

from the well,-we-did-warn-you dept

The EU-Canada Comprehensive Economic and Trade Agreement (CETA) is one of several long-running trade deal sagas covered by Techdirt. It seemed to be almost over in 2017. After a constant on-off excitement about whether CETA would survive, it was ratified by the European Union. But it still needed to be approved by all the EU Member States’ national parliaments before it came into force. The chief stumbling block to national ratification was the investor-state dispute settlement (ISDS) provisions, which would allow investors to sue governments over laws or decisions which could potentially harm future profits. This imposition of corporate sovereignty through trade deals is an issue that Techdirt has been covering for many years. Despite widespread concerns about ISDS, in 2019 the Court of Justice of the European Union, the EU’s top court, ruled that corporate sovereignty was compatible with EU law, apparently removing the last obstacle to CETA’s ratification by Member States.

And yet here we are, eight years after the final text of CETA was “celebrated“, and another major problem has emerged. The Irish Supreme Court has just ruled that ratification of CETA would be unconstitutional without holding a countrywide referendum on it. The argument that was used successfully to convince the court to halt Ireland’s ratification is the following:

The court was told during the March hearing that “sovereignty” was at the heart of the appeal, with the Dublin South Central [member of the Irish parliament] expressing concerns about the constitutionality of provisions in Ceta for “investor courts” to decide complaints by Canadians who invest in EU member states.

It was submitted the State cannot authorise the treaty “without the mandate of the people”, by way of a referendum.

Yes, it’s corporate sovereignty rearing its ugly head again, just as it has done many times in the past. But there’s a big difference now. As Techdirt wrote a few weeks ago, governments are finally waking up to the dangers of ISDS, and are actively seeking to withdraw from the Energy Charter Treaty, which also contains corporate sovereignty provisions.

Since politicians are themselves turning against the idea, it would not be surprising if its opponents succeed in convincing a majority of the Irish people to vote against allowing ISDS in CETA in the new referendum, whenever that is held. And if Ireland refuses to ratify ISDS in CETA, that would nullify the ISDS provisions across the whole of the EU. CETA would then come into effect, but without its worst feature.

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Filed Under: canada, ceta, cjeu, corporate sovereignty, eu, ireland, isds, referendum

Rich Dude Goes Back On His Promise About Forcing California Into A Dreadfully Bad Privacy Law, Brings A Worse Version Back

from the this-is-not-how-law-making-should-be-done dept

California is inching ever closer to having its very problematic privacy law take effect. As we’ve noted, while good privacy legislation would be desirable, this is not it. Indeed, this law is woefully undercooked by design. If you don’t remember, the process by which we got here dictated terrible results. A wealthy real estate developer, Alastair Mactaggart, decided that he was going to “fix” internet privacy, by putting a truly bad proposal regarding internet privacy to a public vote, using California’s somewhat horrific public referendum system — that allows for the public to effectively modify California’s constitution by popular vote.

While, in theory, this could be an example of popular democracy at work, in practice, the California referendum system has been a way for ultra-wealthy people, with too much time and money on their hands, to push through pet projects — often either misrepresenting the nuances to the public, or perhaps not understanding them themselves — and then locking California into the results. Recognizing just what an unmitigated disaster Mactaggart’s referendum would have been for an open internet, a deal was cut: if California’s legislature rushed through a privacy bill in two weeks, Mactaggart would drop the referendum from the ballot. And that lead to the woefully undercooked CCPA (California Consumer Privacy Act) law, which was at least marginally better than Mactaggart’s nonsense proposal.

But, here’s the thing, after agreeing to pull that referendum from the ballot, Mactaggart has now announced that he’s bringing it back for the next ballot. Really.

The activist who spurred California to adopt the country?s first-ever consumer privacy law is readying for another battle: a new ballot initiative that would be even tougher on tech giants and other big businesses that collect people?s personal information.

The proposal, unveiled late Tuesday, is the brainchild of Alastair Mactaggart, a real estate developer whose efforts beginning two years ago resulted in the California Consumer Privacy Act, or CCPA. Building on that success, Mactaggart has set his sights on the 2020 election, hoping that local voters will enact reforms targeting the way companies harness data to make decisions or serve ads.

But, remember, the whole point of forcing through the undercooked CCPA was to get Mactaggart to back off his stupid referendum, but now it’s back, meaning that there’s just going to be more nonsense and fighting, to stop a ballot measure from a guy who has no clue what his proposal would actually do to the internet. And, because California’s ballot measures are playthings for rich people, Mactaggart will likely get his way:

Mactaggart spent $3.1 million of his own money to gather signatures for his first privacy measure in 2018 and said he?s prepared to spend the same, or more, on this effort. He has said he came to the issue somewhat by accident after having a cocktail party conversation with a Silicon Valley technology engineer that left him startled when he learned about the kinds of information routinely being gathered, sold and bought by companies with relatively low public profiles.

Furthermore, he says he won’t even back off this time:

One week before the 2018 deadline to certify the list of statewide propositions, Mactaggart and Democratic legislative leaders announced a compromise that was quickly signed by then-Gov. Jerry Brown.

Mactaggart doubted that he would do the same this time around.

?I don?t think any substantial gains like this are made in the Legislature,? he said. ?I?m really happy what I did [in 2018]. It got us a beachhead. But I like the idea of having a new high-water mark that can?t be undone.?

So let’s be clear: even if you agree with Mactaggart’s position 100% and believe that his ballot initiative is good for personal privacy (which it is not), this is a horrible way to go about making privacy law. This is a rich guy, randomly throwing money at an issue that will get plenty of attention with almost no nuance or understanding, and setting levels that are nearly impossible to change, which will create all sorts of problems. It’s not how policy should be made, no matter how you feel about privacy laws.

Filed Under: alastair mactaggart, california, policy making, privacy, referendum

Google Removed Catalonian Referendum App Following Spanish Court Order

from the this-seems-problematic dept

Last month, we wrote about the crazy situation in Spain, where the government was so totally freaked out about a Catalonian referendum on independence that it shut down the operators of the .cat domain, arrested the company’s head of IT for “sedition” and basically shut down a ton of websites about the referendum. The Washington Post now has an article with even more details about the digital attacks in both directions around the Catalonian independence referendum, including hack attacks and DDoS attacks. But one thing caught my eye. Apparently, the supporters of the referendum had created an app called “On Votar 1-Oct.” The app had a bunch of the expected functions:

The app, available on Google Play until just before 7 p.m. on Friday, helps people to find their polling station via their address and shows the closest polling stations on Google Maps via GPS, the name of the town or keywords.

It also allows users to share links to polling station locations.

But the Spanish government was so freaked out by the referendum and anything related to it, that it ran and got a court order demanding Google take the app out of Google’s app store:

The court order told Google Inc?at 1600 Amphitheatre Parkway Mountain View CA 94043 (USA)?to take down the app located at that URL and also to block or eliminate any future apps submitted by the user with e-mail address “onvotar1oct@gmail.com” or identifying as “Catalonia Voting Software”.

The judge says in her ruling that the tweet with the app link is “only a continuation of the actions of the [Catalan government] to block” Constitutional Court and High Court orders “repeatedly”.

In the Washington Post article, the CTO of the Catalonian government explains why this is so disappointing:

?I?m a tech guy,? says Jordi Puigner?, chief technology officer of the Catalonian government. ?So I?ve always been a great fan of Google and its principles of respect for digital rights. But now I?m really disappointed with the company.? (Puigner??s office was also occupied by police during the referendum, he says.)

And you can understand why he’s disappointed. But, the real problem here, seems to be going back to the same problem we keep identifying over and over again: deep centralization of the digital world. Part of the very promise of Android was that it was supposed to be open, and people weren’t supposed to be locked into just Google’s app store. And, indeed, there are competing app stores — but the general argument around them (with the possible exception of Amazon’s competing Android app store) is that if you want to keep your device secure, you’ll only download via Google’s app store.

And then we’re back to a problem where there’s a centralized choke point for censorship — one which the Spanish government is able to exploit to make that app much more difficult to access. Google, for its part, said it took the app down because it had received a valid court order. And, that’s true, but it’s also opening up yet another path to widespread censorship. Google has stood up against similar situations in the past, but the decision of whether or not a movement should be stifled should never come down to whether or not a giant company like Google decides its worth taking a moral stand against a legal court order. The problem is much more systemic, and its built into this world where we’ve started to build back up gatekeepers.

For nearly two decades, I’ve argued that the real power of the internet was not — as many people initally argued — that it got rid of “middlemen,” but rather that the middlemen turned into enablers rather than gatekeepers. In the old world, when only some content could get released/published/sold/etc., you had to rely on gatekeepers to choose which tiny percentage would get blessed. The power of internet platforms was that they became enablers, allowing anyone to use those platforms and to publish/release/sell/distribute things themselves, often to a much wider audience. But there’a always a risk that over time, former enablers become gatekeepers. And it’s a fear we should be very conscious about — even if it’s not done on purpose.

To be clear, I don’t think Google wants to be a gatekeeper around things like apps. It would prefer not to be. But because the marketplace has become so important, and because Google’s role is so central, it almost has no choice. And when governments start issuing court orders to take down apps, suddenly Google is left with few good options. Either it censors or it picks fights with a government. And even if many of us would probably support and cheer on the latter as a choice, we should be concerned that this is even an issue at all. The solution has to be less reliance on centralized platforms and centralized choke points. Catalonians shouldn’t have to rely on Google to get a simple voting app out to the public. The next big breakthroughs need to be towards getting past such bottlenecks.

Filed Under: bottlenecks, catalonia, democracy, election, independence, play store, points of failure, referendum, spain
Companies: google

How The RIAA Helped Pave The Way For Spain To Undermine Democracy

from the seizing-domains dept

This might seem like a harsh title, but let’s go back a bit into history. In 2010, at the direct urging of the RIAA, the US government, in the form of ICE, suddenly decided that it could seize domains right out from under websites with zero due process. Specifically, the RIAA gave ICE a list of websites that it insisted were engaging in piracy. It later turned out that this list was completely bogus — and the seized domains included some music blogs and a search engine — and when ICE asked the RIAA to provide the evidence (incredibly, many months after seizing the domains…), it turns out that they had none. Even with all of this, ICE kept one blog’s domain for over a year, while denying that site’s lawyer even the chance to talk to the judge overseeing the case — and (even more incredibly) kept two other sites for five whole years.

The RIAA, who was directly quoted in the affidavit used to seize these domains (including falsely claiming that a non-RIAA song, that was personally given to the site by the independent artist in question, was an RIAA song and infringing) later tried to downplay its role in all of this, while still insisting that seizing entire domains based on flimsy claims and zero evidence was a perfectly reasonable strategy.

Fast forward to the present. Over in Spain there’s a big political fight over Catalonia independence, with an upcoming referendum that the Spanish government has declared illegal. Things got very messy with Spanish law enforcement raiding government buildings, offices and homes. There are all sorts of human rights issues being raised here, let alone questions of democracy. However, those aren’t directly the kinds of things we cover here. What did catch our attention, however, is that one of the raids was on the operators of the .cat domain, puntCAT, in order to seize the websites promoting the upcoming referendum and to arrest the company’s head of IT for sedition (yes, sedition).

As EFF’s Jeremy Malcolm explains, this should raise all sorts of alarms and concerns:

We have deep concerns about the use of the domain name system to censor content in general, even when such seizures are authorized by a court, as happened here. And there are two particular factors that compound those concerns in this case. First, the content in question here is essentially political speech, which the European Court of Human Rights has ruled as deserving of a higher level of protection than some other forms of speech. Even though the speech concerns a referendum that has been ruled illegal, the speech does not in itself pose any imminent threat to life or limb.

The second factor that especially concerns us here is that the seizure took place with only 10 days remaining until the scheduled referendum, making it unlikely that the legality of the domains’ seizures could be judicially reviewed before the referendum is scheduled to take place. The fact that such mechanisms of legal review would not be timely accessible to the Catalan independence movement, and that the censorship of speech would therefore be de facto unreviewable, should have been another reason for the Spanish authorities to exercise restraint in this case.

Whether it’s allegations of sedition or any other form of unlawful or controversial speech, domain name intermediaries should not be held responsible for the content of websites that utilize their domains. If such content is unlawful, a court order directed to the publisher or host of that content is the appropriate way for authorities to deal with that illegality, rather than the blanket removal of entire domains from the Internet. The seizure of .cat domains is a worrying signal that the Spanish government places its own interests in quelling the Catalonian independence movement above the human rights of its citizens to access a free and open Internet, and we join ordinary Catalonians in condemning it.

I agree entirely with Malcolm’s assessment, but should note that the US government (even if it wanted to, which it probably does not…) has no moral high ground here, seeing as it’s been seizing domains for the better part of a decade, with some of those earliest seizures coming on behalf of the RIAA (over trumped up charges). As Malcolm says, this doesn’t mean that all illegal content must remain online, but seizing domains is a brute force intimidation and censorship tool for governments. The RIAA should be ashamed that it helped “pioneer” this sort of government censorship.

Filed Under: cat, catalonia, censorship, domain seizures, domains, referendum, seizures, spain
Companies: riaa

Larry Lessig Goes Even Bigger: May Run For President On The Single Issue Of Money In Politics

from the go-big-or-go-home dept

Last year, Larry Lessig got plenty of attention for his MAYDAY PAC, which was an attempt to raise a bunch of money to back candidates who promised to reform campaign finance laws. The 2014 campaign was supposed to be a “test” to raise around $12 million to see what could be done, with an eventual goal of raising a lot more for the 2016 campaign. Even the 2014 campaign was somewhat audacious (and somewhat misunderstood). And after the 2014 election, many argued that MAYDAY was a failure in that it really failed to have much, if any, impact in the campaigns that it took part in. To me, it seemed a bit premature to make that argument, as the whole point of experimenting and testing is to learn, but in politics everything is a horse race, and there is little in the way of long term thinking or strategy.

Either way, just a few weeks ago Lessig announced that he was handing MAYDAY over to Zephyr Teachout, a well-known professor who used to be director of the Sunlight Foundation — and who caused a political stir last year by doing surprisingly well in running against Andrew Cuomo for governor of NYC. Teachout taking over MAYDAY seemed like a natural fit.

But what of Lessig? His own post mortem on MAYDAY suggested he wasn’t ready to give up the fight, and it appears that the results of the first round of the MAYDAY experiment didn’t scare him off from taking chances on making incredibly big bets. Crazy bets. Because now he’s basically running for President. Sort of. Maybe. You kind of have to watch this video to understand:

In short, he wants someone to run as a “referendum candidate” — someone who will run entirely on this issue of fixing corruption in politics, with the promise that once in office, they will focus on solving that one issue and then resigning immediately, and handing over the job to the Vice President. In this case, the way he’d pursue fixing corruption is to pass The Citizen Equality Act — a bundle of election reforms that Lessig has been arguing would make a real difference in getting money out of politics. Lessig claims he’s been looking for someone else to stand in as that candidate, and will happily focus on someone else if the right candidate emerges — but, if no one else is able to do it, he’ll be that candidate himself.

For now, Lessig is trying to raise $1 million by Labor Day to see if this is possible. If he doesn’t raise that much, the plan will be shut down (and no one’s money will be taken).

I’m not sure what to make of all of this, frankly. Lessig has been trying for a bunch of moonshot ideas over the past few years — including holding a new Constitutional Convention, among other ideas like MAYDAY and campaign finance reform. You can’t say he isn’t being bold and trying some crazy big strategies in trying to make these things an issue. And I really appreciate and respect Lessig and his way of thinking about all of this. But… something about this latest move feels almost too gimmicky. Yes, to get people to actually take on this issue, perhaps a gimmick is needed. And maybe Lessig is right to keep trying ever more audacious gimmicks until he finds the one that clicks. I’m glad he’s trying and I hope he succeeds — and chances are I’ll donate to this campaign. But it still feels like a gimmick, and it bugs me that we need gimmicks to fix our political system. I’m guessing that Lessig might actually agree with that statement, but argue that there’s no way around this unfortunate fact, so he’s going to play the game. I just wish it didn’t need to happen that way.

Filed Under: citizen equality act, corruption, larry lessig, money in politics, politics, president, referendum, referendum candidate