[governance] [bestbits] More on the GCCS 2015

Seth Johnson seth.p.johnson at gmail.com
Wed Apr 22 14:10:52 EDT 2015 

Binding doesn't make it fundamental.  The best standard of review
you'll ever get from an intergovernmental agreement is a "balancing"
standard.  That's because it's not an expression of the priority of
the people and their rights.  There's a huge difference between a
government set in limits by its people (which means your rights are
fundamental -- they are a trump card even on duly enacted acts of
elected legislatures), and intergovernmental acts.  When they say we
need to balance the war on terror and "human rights" they're really
simply stating a truism: national interests like "national security"
are weighed against rights (inevitably subjectively, by judges who
have no legal basis to do otherwise).  Rights don't win, they just
"are borne in mind."  Fundamental rights are a trump card.

The biggest problem with intergovernmental acts is that they are in
fact binding without the forms of recourse we the people claim in
relation to our governments at the domestic level.  We the people DO
NOT have those forms of recourse internationally, because we never
claimed them properly (by an exercise of constituent power, writing
and enacting the limits we the people set on our governments in
founding acts).  We only have words that look like it,
enacted by governments.  That creates at best "statutory" rights --
and not very good ones even as far as that goes.

FYI, there's a ridiculous section 8 in the present Fast Track bill:

8. SOVEREIGNTY
(a) UNITED STATES LAW TO PREVAIL IN EVENT OF CONFLICT.—No provision of
any trade agreement entered into under section 3(b), nor the
application of any such provision to any person or circumstance, that
is inconsistent with any law of the United States, any State of the
United States, or any locality of the United States shall have effect.
(b) AMENDMENTS OR MODIFICATIONS OF UNITED STATES LAW.—No provision of
any trade agreement entered into under section 3(b) shall prevent the
United States, any State of the United States, or any locality of the
United States from amending or modifying any law of the United States,
that State, or that locality (as the case may be).
(c) DISPUTE SETTLEMENT REPORTS.—Reports, including findings and
recommendations, issued by dispute settlement panels convened pursuant
to any trade agreement entered into under section 3(b) shall have no
binding effect on the law of the United States, the Government of the
United States, or the law or government of any State or locality of
the United States.


This means exactly nothing.  All it says is that nations could act to
the contrary of executive branch treaty acts -- a truism.  b and c are
new in these kinds of things, and also particularly deceptive.  c just
means you're subject to settlements under treaties regardless of
national law -- until you change the law.

This isn't about rights as such (unless in the broadest conception of
a right to self-determination by people(s)), but a perfect example of
how deceptive the game is.


Seth



On Wed, Apr 22, 2015 at 1:18 PM, Nick Ashton-Hart <nashton at consensus.pro> wrote:
> I'm afraid I disagree here: IHRL is binding upon states and that's well accepted and understood. Of course they are given force in national law, which may be your point...
>
> On 22 Apr 2015, at 19:04, Seth Johnson <seth.p.johnson at gmail.com> wrote:
>
>> I should state though that fundamental rights don't have standing in
>> the international arena (and can't, no matter how many treaties you
>> pass . . . short of a global revolution).  We only have them
>> "locally," because that's the only place we've properly claimed them.
>> :-)
>>
>> On Wed, Apr 22, 2015 at 12:58 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
>>> Exactly so.  :-)
>>>
>>> On Wed, Apr 22, 2015 at 12:28 PM, Nick Ashton-Hart
>>> <nashton at consensus.pro> wrote:
>>>> As you wish - but in the meantime whilst you claim your standing, life rolls on, and countries are making choices. Nothing will prevent whatever actions you have in mind related to the below taking place at the same time as others work in other areas, though.
>>>>
>>>> On 22 Apr 2015, at 17:06, Seth Johnson <seth.p.johnson at gmail.com> wrote:
>>>>
>>>>> No, it's not that "digital security" in general is all these things,
>>>>> supposedly as opposed to a zero-sum analysis regarding quantities of
>>>>> security.
>>>>>
>>>>> What we want is to talk about how to retain the standing of
>>>>> fundamental rights recourse over governments.  The role of private
>>>>> companies is just to "launder" surveillance -- if they do it for the
>>>>> governments (and especially if this scheme gets instituted
>>>>> internationally, where fundamental rights don't have the standing they
>>>>> do in domestic contexts), then supposedly it's okay.
>>>>>
>>>>> This isn't something that's really dealt with properly by
>>>>> "statutory"-like measures ("statutes" of a new, highly unhinged sort,
>>>>> the kinds you get from international treaties).  It's dealt with by
>>>>> claiming our standing as we the people over our governments --
>>>>> specifically, denying them the opportunity to supersede our
>>>>> locally-based recourse against our governments through international
>>>>> con games.
>>>>>
>>>>> Only after you set that principle, will you be able to try to address
>>>>> the role of private parties, who don't have the limits on them that we
>>>>> the people set on our governments.  *That's* more "statutory," but
>>>>> again when you take up that question and enter into the "statutory"
>>>>> approach there, you're not going to get it right until you first set
>>>>> the principle that you don't want to set it up as a liability
>>>>> protection scheme that lets private companies launder government
>>>>> surveillance.  The private arena has the added problem of gaining
>>>>> recourse over the corporate form in the transnational arena --
>>>>> something we have also lost our moorings on.
>>>>>
>>>>>
>>>>> Seth
>>>>>
>>>>>
>>>>> On Wed, Apr 22, 2015 at 3:29 AM, Nick Ashton-Hart <nashton at consensus.pro> wrote:
>>>>>> Dear Arzan,
>>>>>>
>>>>>> I find some irony in the fact that you start out by calling out finger
>>>>>> pointing and then immediately pointing fingers at more players ;)
>>>>>>
>>>>>> I will top you - I think - on the depressing front, which is that the entire
>>>>>> dialogue about privacy, surveillance, data protection, law enforcement,
>>>>>> cybersecurity, human rights online is the language of "my corner is more
>>>>>> important than your corner, you should change to let me do what I want."
>>>>>>
>>>>>> I think the reality is that all of these are aspects of digital security.
>>>>>> All of these have, at their heart, the objective of creating more safety and
>>>>>> security for people - of course, we can disagree about whether some of them
>>>>>> do, or whether they do it well.
>>>>>>
>>>>>> The result of this is, I think, that we are then in the trap of "well, you
>>>>>> give me a little of your privacy, and I'll give you a little more protection
>>>>>> from criminals." This is as we know a false dichotomy but it is really
>>>>>> harmful in public debate as it reinforces this terrible idea that there is
>>>>>> only a limited amount of 'security' available and we have to parcel it out
>>>>>> in little buckets to everyone who has a role in protecting people, a
>>>>>> zero-sum.
>>>>>>
>>>>>> We need a new debate that starts from the premise that digital security is
>>>>>> not just any one of these things but all of them, and that the motivation at
>>>>>> source of all aspects is the same. We could then have a reasonable
>>>>>> conversation about how to leverage technology to actually product not a
>>>>>> zero-sum but something that is more than the sum of its parts.
>>>>>>
>>>>>> Of course, not all countries have the same motivations, not all stakeholders
>>>>>> have the same motivations, but if we change the debate from zero-sum to
>>>>>> win-win we at least have the chance to produce real reform and more safety.
>>>>>> Isn't that what we all really want?
>>>>>>
>>>>>> I look forward to thoughtful replies and constructive criticism. Other types
>>>>>> of interventions I will leave without replying. I hope everyone understands.
>>>>>>
>>>>>>
>>>>>> On 22 Apr 2015, at 09:06, Arzak Khan <azrak_khan at hotmail.com> wrote:
>>>>>>
>>>>>> Hi All,
>>>>>>
>>>>>> It was for the first time that I participated in such an event and my take
>>>>>> on the overall conference which I also raised in one of the panel
>>>>>> discussions i.e. Privacy was that while addressing the issue of privacy and
>>>>>> security majority of the people were pointing fingers at the governments
>>>>>> i.e. NSA, GCHQ etc. and hoping to fix the cancer by proposing or calling for
>>>>>> new laws, frameworks and treaties. No one at the event questioned the role
>>>>>> played by the private companies in the mass surveillance programs for the
>>>>>> likes of Google sharing petabytes of data with NSA and claiming to be
>>>>>> protector of internet freedom is hard to swallow. I was not entirely sure
>>>>>> that passing new laws and regulations will fix the issue or stop these
>>>>>> growing monopolies from mass surveillance as the very fabric of internet
>>>>>> architecture is based on the concept of big data and reconnaissance.
>>>>>>
>>>>>> The terms like “information freedom” and “multistakeholderism” all looks
>>>>>> very good and shimmering at the surface but underneath it is the dark world
>>>>>> where states are in battle for control of economic, political and social
>>>>>> power. The new age communication technology allows the developed countries
>>>>>> to leverage them for their own gains and political agenda far more strongly
>>>>>> than the Global South and at times against them.  The growing drive to
>>>>>> control the internet i.e. primarily by economic and geopolitical motivations
>>>>>> rather than by the humanitarian and democratic standards should ring bells
>>>>>> for people having interest internet governance as  this event highlighted
>>>>>> the geopolitical contest between few major international actors while rest
>>>>>> of us were the participants or subjects witnessing twenty-first-century
>>>>>> statesmanship and international relations.
>>>>>>
>>>>>> Best,
>>>>>>
>>>>>> Arzak Khan
>>>>>> Director |Internet Policy Observatory Pakistan (iPOP) | Tel +92 81 9211464 |
>>>>>> Twitter: @internetpolicyp |Web: www.ipop.org.pk |
>>>>>>
>>>>>>
>>>>>>
>>>>>> ________________________________
>>>>>> From: gurstein at gmail.com
>>>>>> To: governance at lists.igcaucus.org; bestbits at lists.bestbits.net
>>>>>> Date: Tue, 21 Apr 2015 10:12:40 -0700
>>>>>> Subject: [governance] More on the GCCS 2015
>>>>>>
>>>>>> http://t.co/tzT7PkFgys
>>>>>>
>>>>>>
>>>>>>
>>>>>> http://www.theregister.co.uk/2015/04/20/gccs_2015_roundup?mt=1429629533557
>>>>>>
>>>>>>
>>>>>>
>>>>>> Interesting perspective and more information …
>>>>>>
>>>>>>
>>>>>>
>>>>>> So what precisely was “CS” doing at this meeting and having their
>>>>>> participation presented as being in “general agreement” with the Chairman’s
>>>>>> Report and (and thus legitimizing) the entire process and outcome of this
>>>>>> unicorn?
>>>>>>
>>>>>>
>>>>>>
>>>>>> Can we take silence as indicating consent from the participating “CS”
>>>>>> organizations and individuals?
>>>>>>
>>>>>>
>>>>>>
>>>>>> M
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
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