Monthly Archives: April 2009

Protesting too much

Posted on by
31

I don’t mean to post on Kiwiblog so frequently, but oh well – there’s a lot to post on.

Annette King (or the minions who write her press releases) appear to have jumped the shark, intimating that a Vast Right-Wing Conspiracy is behind David Farrar’s release of two of David Shearer’s old papers advocating the use of mercenaries. Ok, we know that this sort of thing happens – that some right-wing blogs are used to fly kites for politicians or parties who can’t afford to fly them themselves, and undoubtedly the same happens on the other side. But honestly, DPF does background research like this consistently and well, there’s no secret there, and when you allege this sort of thing in relation to a discrete event then you can expect to get taken to the cleaners if you don’t have the necessary documentary evidence. And, frankly, the real story here is the contents of the papers, not the circumstances of their discovery. So King looks like a weeny whinger unless she can put up, and perhaps even then.

On the other hand, it’s a bit rich for DPF to take such exception to the fine distinction between the parliamentary National party and its wider community apparatus. DPF and the KBR are highly important to National’s political strategy, and the lines between traditional media and citizen media, between internal (orthodox) and external (unorthodox) channels of political advice and communication are getting more blurred by the day. King’s press release makes the mistake of being too specific and trying to pin the issue on the official National apparatus, rather than simply being vague about it and probably having the same effect. Because ultimately, it’s no different whether National’s proxies David Farrar and Cameron Slater do the work or whether someone on the inside does it.

L

Just do it! The Auckland referendum

Posted on by
9

If a political party, or combination of political parties, truly wanted a referendum they could just run one. It wouldn’t be governed by any legislation, but who cares? It would be just as powerful as a CIR (which relies on expressing public opinion and is not binding).

Political parties have access to electoral rolls, parliamentary service funding for material and postage, and free mail for people returning material to parliamentary addresses.

The parties would probably want  to find some eminent people for a panel to oversee the decision on the question and the rules under which the referendum will be run. They’d also benefit from maximum transparency: invite in all the media who want to be there, ensure all meetings are open, all agendas and minutes are public, and so on.

Figuring out the question’s gonna be tough; that’s the key to a referendum and worth putting time and effort into consultation and getting it right.

But, seriously, just do it!

It doesn’t matter that National and Act don’t want one, run it anyway!

It doesn’t matter that National and Act will say it’s not binding, would they ignore the outcome?

Just do it!

Cry havoc

Posted on by
45

DPF is up to his old tricks again – this one about Hone Harawira is content-free and David’s own comments are typically innocuous, but it functions very well indeed as a bone for the slavering mastiffs of the KBR to gnaw upon, making him look like a sensible moderate, if you squint a bit. For once, this one wasn’t tagged `Fun Things’.

All the necessary ingredients are there – race, privilege, power differential, obscenity and homophobia – because all minorities are equivalent, right?

Aspiring demagogues, take note.

L

Press complaint: exploitation of mental illness

Posted on by
3

This is my first try at a press complaint, so I’d appreciate suggestions and feedback before it goes in the mail next week. As you can see I’m struggling to address only the issue of coverage of the actions of the mentally ill.

The process is that I have to complain to the editors first, so this will go to all three sunday papers.

Dear <title>.

Complaint: exploitation of mentally ill individual

On Sunday 19 April 2009 <paper> ran a story about the actions of an mentally ill man titled <title>. This story included personal details including details of a suicide attempt and communication with the media when his thinking was clearly disordered and altered by his mental illness. I believe the publication of this article was unethical, is inconsistent with the principles of the New Zealand Press Council, and sets an unacceptable precedent for media coverage of the actions of the mentally ill. It is also damaging for other mentally ill New Zealanders by diminishing the privacy which they can expect to be provided.

The principles of the New Zealand Press Council not only identify privacy as a core principle, but also touch on issues such as individuals suffering from trauma or grief and children and young people. They provide clear guidance that vulnerable people must be protected from unnecessary scrutiny and from exploitation by the media.

While, in this particular case, the mentally ill individual has clearly voluntarily previously engaged with the media over his personal life, no reasonable person could be sure he was capable of genuine consent given the state of his mental health described in the article. The article, therefore, significantly breached his privacy. It may be possible to argue that this case was exceptional, but the underpinning principles of privacy and fairness are not exclusive to people who have no previous media engagement.  People in New Zealand have a right to have their privacy protected, particularly when they are vulnerable or suffering from disordered or delusional thinking which prevents them from actively protecting their own privacy.

Stories like this have two important negative impacts on mentally ill people in New Zealand. Firstly they set a precedent that the media may freely publish information either about the disordered actions of mentally ill individuals, or information they may disclose while disordered or delusional. Secondly they create a culture in which the expectation of privacy of the mentally ill is diminished and increases expectation that the stories of mental illness should be made public for the titillation and curiosity of acquaintances, strangers and colleagues.

I am requesting three remedies to balance the damage done by the article:

  1. An acknowledgement that the publication of the article was inappropriate.
  2. The dissemination of clear guidelines for staff addressing the requirement to respect the privacy of the mentally ill (and other vulnerable groups which may feel some obligation to disclose private information). Training for some staff may be appropriate.
  3. The publication of an in depth article on mental illness in New Zealand focussing on the issues of privacy and the impact of disclosure and the attitudes of acquaintances.

If you or your staff would like to get in touch to discuss…

Yours…

Mt Albert and Russel Norman

Posted on by
31

What’s with that? I mean, really, what’s with that?

Norman can’t possibly hope to win Mt Albert, this bears no resemblence to either ÅŒhariu or Epsom and there is no obvious electoral advantage to Mt Albert voters in voting for Norman. The only possible outcome of Norman upping the Green electorate vote in Mt Albert is converting a historically strong left wing seat to an apparently right wing one, and Lee may have the skill to keep it soft blue from there on out.

So the Greens appear, to my outsider’s eye, to trying something which has a possible down side but no possible up side. At the same time Norman’s dragging the Greens away from their reputation for principled electoral politics into the arena of carpetbagging disingenuous political gamesmanship.

No chance of an overt win, significant possible cost, and treating voters like chess pieces – is Russel Norman the Greens’ Murray McCully?

Bah!

Everyone loves a referendum

Posted on by
8

… but only when they serve our political purposes.

That’s the message you can draw from the two cases in which referenda have been recently proposed; for s59 and for the future of Auckland. The clearest distinction is between ACT and Labour, with Labour calling for a referendum on the Auckland issue in much the same way that ACT pushed for a referendum on s59; and Rodney Hide declining on a pretext, as Helen Clark was widely criticised for doing.

Now, don’t get me wrong – I’m not trying to equivocate on the two issues. I think the Auckland supercity referendum has merit (though phrasing the question will be tricky) and I think the s59 referendum is a jack-up for pure PR purposes – the point I’m making is about parties’ willingness to resort to plebiscite when it suits them, but not when it doesn’t.

L

On the Torture Memos

Posted on by
14

At long last the paper trail authorizing the use of coercive interrogation techniques, to include tortures such as water boarding ( a simulated drowning technique) has been made public. The bottom line is that it reveals that high level Bush administration officials, to include John Ashcroft (Attorney General at the time), John Yoo (Deputy Attorney General), Alberto Gonzalez (White House counsel, later Attorney General) Dick Cheney (Darth Vadar) and Condoleeza Rice (Nurse Ratched), should be indicted for criminal offenses under both US and international law. What is worse, their authorization of criminal acts–no matter how Mr. Yoo’s convoluted legal arguments may wish to paint them as something less than torture and permissible under doctrines of Executive authority anyway–flew in the face of expert opinion that torture is an unreliable method for extracting reliable intelligence and could, in fact, be counter-productive both legally and practically. There are several layers to the story, so I shall briefly run through them.

The techniques used were derived from the SERE school practices. SERE is a program run by the US military to simulate the conditions of a prisoner of war camp in which US aviators and special forces operators might find themselves. It is modeled on 1950s Chinese prison camps. Under controlled conditions, SERE operators subject US personnel to what they admit are “torture techniques” (such as water boarding) in order to teach the US personnel how to resist coercive interrogations. Thus, the Bush White House and Justice department took techniques that were capable of being overcome by determined prisoner resistance and authorized their use, without fully exploring their history or the controlled circumstances of their SERE application, on suspected jihadis whose idea of glory comes in the form of martyrdom. Not to put too fine a point on it, but that is just arse-backwards.

In fact, once SERE camp administrators heard of the (mis) application in 2002 they wrote memos to the Defence Department protesting against the use of SERE techniques. They explicitly warned about the unreliability of the confessions extracted and the risk of accidental death. These memos were ignored by the Rumsfeld cronies who ran the Pentagon at the time and were apparently never passed onto the White House and Justice Department (or if they were, they were ignored). What is important to note is that the people who pushed for the use of these techniques were Republican ideologues who had no actual experience with interrogations. Most interrogators are US military counter-intelligence personnel, who are fully aware of the legal and practical pitfalls of using torture to extract confessions. These include the unreliability of the information extracted, the uselessness of such information for strategic intelligence purposes, the problems of garnering actionable information from atomized cells in a decentralized guerrilla network like al-Qaeda–in other words, the complete disutility of using SERE-type techniques for anything other than immediate tactical purposes (if that). Since these forms of punishment were being meted out in “black sites”  thousands of miles away from the battlefields of Iraq (Abu Ghraib was more of a test case rather than a systematic application of the Yoo doctrine) and Afghanistan (although the prison at Bahgram Air Force Base outside of Kabul is reported to contain a “black site’), or in Guatanamo, even the tactical intelligence obtained was mostly unactionable. Hence, professional interrogators such as Special Forces counter-intelligence officers did not conduct the interrogations, but instead were replaced by CIA operatives or private contractors. The can of worms that opens almost defies belief.

In a nutshell:  the Bush administration authorized unproven and unreliable torture techniques against the advice of those who were best informed about the use and results of those methods, then replaced seasoned interrogators with civilians and private contractors to do the dirty work. Presumably this was to gain some of distance on any potential legal repercussions down the road. When one looks at the results of the Abu Ghraib case, where two enlisted soldiers served short jail sentences, two field officers were reprimanded and demoted and one flag rank officer demoted and  forced to retire, it easy to see how Bush administration officials believed that they would never be held responsible for anything that happened in the “black sites.”

Bush administration defenders claim that the coercive interrogation program obtained results in the form of preventing terrorist attacks but are unable or unwilling to offer a single instance of such a success. They claim that revealing the torture memos jeopardizes current and future intelligence operations and demoralizes the CIA. The answer to these claims (other than to laugh when Dick Cheney makes them), is to say 1) provide a single shred of evidence that an attack was prevented by the use of waterboarding and other forms of torture; 2) prove that any information obtained that was useful could not have been obtained using other (non-torture) techniques. Let us be clear: getting the names of other cell members, or of liaison contacts, or of the early outlines of a terrorist plot is not “actionable” intelligence that could not have been obtained by other means (say, by good human intelligence in the field). Arresting some of the Guantanamo detainees was enough to disrupt the most grandiose of al-Qaeda plots, so once their role was ascertained and their backwards linkages traced, use of torture was just vengeance, not intelligence-gathering. If the claim is going to be made that the use of terror was efficient, i.e., that it actually prevented an imminent attack, then it needs to be supported with proof. After all, the “informants” are not going anywhere so need not fear retribution and whatever intelligence penetration of terrorist networks has occurred should not be vulnerable to exposure if the truth of the matter is revealed (otherwise it is simply shoddy workmanship on the part of US intelligence and its allies).

The best way to verify such claims is to grant immunity to interrogators and lower-level CIA and military officials who oversaw coercive interrogations in  order to find out not only whether the techniques were as necessary as the Bush defenders say there were, as well as their results. More importantly, the main purpose of the grants of immunity is to determine the chain of command responsible for authorizing the use of torture, and on what grounds. The last point is important because as it stands, the Bush administration will hide under the doctrine of “plausible deniability” where subordinates get blamed for the physical acts but no evidentiary link can be conclusively made to the orders of high level officials. That deception can be countered with a “due obedience” approach whereby legal immunity to lower-ranked officials is exchanged for their testimony on who gave the orders and how did they do so (as well as how they tried to conceal those orders).  That is the key to getting indictments of Bush administration officials. John Yoo and his chief lieutenants, in particular (the former now happily ensconced as a Law Professor at UC Berkeley, of all places, the latter now anxiously realizing that private legal practice does not afford them any cover in the face of a federal indictment), need to be held to account because they apparently took an untoward interest in specific techniques and were the keenest to authorize their use. Getting these toadies to turn under the threat of imprisonment could in turn be the key to finding out what exact roles were played by Cheney, Bush and Rice in opening the Pandora’s box embedded in the torture memos.

Of course, being a cautious and pragmatic person, Barack Obama may pull the plug on any prosecutions in the interest of political security (his own and of the Democratic Party). If so, it will be up to the International Criminal Court to seek the truth of the matter, so that even those who rule a seemingly unassailable superpower realise that they too are not above basic standards of human rights and international justice. I shall not hold my breath waiting for either to happen. What is certain is that, until something dramatically different is revealed to counter what is known so far,  from a moral-ethical as well as an efficiency-practical standpoint, the US use of torture in the fight against terrorism has been a failure more than a success.

Explaining the Opening of Diplomatic Dialogue

Posted on by
6

There has been much blather about Obama kow-towing to Hugo Chavez and Daniel Ortega at the recent Summit of the Americas conference, as well as his overtures to Cuba and Iran. At a minimum, his opponents accuse him of sending the wrong message (apparently it involves “legitimizing” governments that have already been majority elected by their own constituents), and at the worst he is labeled a “socialist” and a “traitor” to the US ideals. The drumbeat of hatred in disloyal opposition is stoked by conservative media outlets, who openly incite the ideologically inclined to physically act upon their irrational fears.

Notwithstanding that type of beat-up, and partisan idiocy aside, there is no reason to be alarmed. US broaching of diplomatic dialogue with various adversaries is a tried and true aspect of conventional diplomacy. Henry Kissinger was a major exponent of the approach, so it is no less useful for US President Obama and Secretary  Clinton to do so. 

As a proven diplomatic tactic, one that the Clinton re-treads who run Obama’s foreign policy apparatus clearly subscribe to, the offer to thaw relations between the US and Cuba, Iran and Venezuela is a “tit-for-tat” strategy designed to gauge the intentions of the opponent. Derived from game theory, it simply states that you open with a cooperative move, then replicate the opponent’s response. If the opponent responds with a cooperative gesture, then continue the iteration. If they opponent responds in an uncooperative fashion, then respond in kind, and only change when the opponent changes the tone of its response. In other words, always replicate the opponent’s move.

As the stronger actor, the US is advantaged by such a strategy, as it puts the other side in a quandary vis a vis domestic constituencies and its own rhetoric (Iran is the current case in point). If there are internal contradictions within the political structure of the opponent, such a strategy is designed to expose them.   For example, the US (under Reagan of all people!) told General Pinochet that they would prefer that he not stand for the presidency of Chile under his rigged constitutional referendum in 1988, and offered several inducements (personal as well as political) for his cooperation. He refused, so the US responded by publicly announcing that, in the interest of US-Chile relations, it would prefer that he did not assume the presidency even if he won.  The conservative coalition that backed him splintered over the offer. He consequently lost the referendum and his hand-picked successor lost the 1989 election that restored democracy to Chile. The point is that Reagan and company wanted a conservative post-authoritarian elected government untainted by the name “Pinochet.” When he showed his megalomaniac tendencies and his support base fractured, Chileans got a left-center, pro-market government instead. Win-win on all counts from a post-Reagan US perspective.

I use the Chilean example only because I am personally familiar with it, but the general point is this: a willingness to talk after periods of estrangement is a diplomatic tit-for-tat opening. It puts the ball in the opponent’s court and gives (US) politicians room to delineate their subsequent moves. Exploiting media opportunities to show “friendliness” is symbolic sop thrown out to soften the opponent’s constituency, and can only be undermined by resistance from one’s own constituency (which is why Fox News and its Republican lapdogs are barking so ferociously about it).  Watching local and international media spinmeisters weave their interpretations (however governments may succeed in controlling interpretations), both sides can measure the external and internal consequences of their respective responses, and carry on accordingly. That gives them a degree of separation from political responsibility in the event of failure.

Closer to home, the question arises: does New Zealand understand the utility of a tit-for-tat strategy when dealing with places like, say, Fiji? If not, MFAT should read the above, and the vast literature that underpins it.

Social, economic and political fallout of the Pirate Bay convictions

Posted on by
11

pirate-jail-thumb-230x130-2644-fBackground
The Pirate Bay is a BitTorrent tracker – one of the world’s largest, most popular and best-known. Four of its co-founders were yesterday convicted of “assisting in making copyright content available”, sentenced to 12 months’ jail each and required to pay 30 million Kronor (about NZ$6.3m) between them. The offence was not the same as actually distributing the copyright material – the torrent files hosted on TPB are not themselves subject to copyright, but they enable a user to easily access material which is. For a quick backgrounder, see The Guardian’s FAQ, and for exhaustive coverage, see Threat Level’s archive.

I’m very interested indeed in the roles which intellectual property mechanisms play in the world. This verdict has complex and possibly profound political, social, technological and economic implications. I won’t argue its legal merits, but, despite their claims, I don’t think this case or verdict is in the content owners’ best long-term interests, because it perpetuates a business model which has been proven unfit for its purpose.

pirate-bay-guilty-mass-protests-followSocial and political implications
The social and political implications of this verdict seem likely to result in a sort of Streisand effect where by winning a battle, copyright owners may galvanise opposition to their business model and enforcement practices. This verdict was never going to be the end; as defendant Peter Sunde said it was to decide nothing other than which side would file an appeal. [Video in two parts here and here. The first five minutes or so is in Swedish; the rest is in English.] So as much bad-will as there is against the content owners, there’s plenty more time for it to build.

Online media consumption (sanctioned and otherwise) is largely the domain of the two generations born since the baby boom – quite distinct from those in control of the legal, business and political systems which produce that media and constrain its usage, who are middle-aged and older. There exists a significant disconnect between these generations, and the Pirate Bay verdict seems like it could crystallise that disconnect into an outright generational divide along political and philosophical lines. Those in their thirties and forties have been heavily involved in shaping the internet into the phenomenon it is, nurturing fledgling technologies (including filesharing) to meet their own needs and building cultures and identities around different types of participation. It’s theirs; they created it. The generation now in their teens and twenties have known nothing else, and they are the driving force behind its constant recreation, and are if anything even more strongly engaged. The content industry is currently trying the ‘stick’ approach – trying to dictate terms to two generations who’re used to having things their way and are more than capable of making it so. As those generations displace their pre-internet elders, and as the developing world begins to participate more strongly in traditionally-Western information communities, content owners will find themselves less able to dictate terms, not more so. Those in charge of intellectual property realise this and have been busy over the past few decades establishing and extending copyright, patent and trademark systems, conditional trade treaties, anti-circumvention legislation, privacy infringements under the guise of cyber-terrorism prevention, and other such measures under the auspices of TRIPS, the DMCA, the PATRIOT Act, IPRED and plenty of lawsuits, including this one – all in order to retain their existing, inferior business models rather than be forced to compete on the open market of ideas in order to develop better ones.

pirate-party-membership There are political implications for all of this, as well Рthe Pirate Party of Sweden, formed to reform copyright law, abolish the patent system and strengthen privacy rights, claims to have gained 3,000 new members in the seven hours following the verdict, giving it a larger membership than four out of seven current parties in the Swedish parliament (and if their online membership graph can be believed, it looks like they were up above 5,000 new members within 12 hours). Candidate Christian Engstr̦m said:

“The ruling is our ticket to the European Parliament,” concluded Engström, who expects a populist backlash against the ruling to help his party’s chances of gaining a seat in the EU’s primary legislative body. [source]

Now, single-issue parties have a particularly hard row to hoe (even TPB’s Peter Sunde doesn’t vote for the Pirate Party), and in terms of realpolitik few countries can afford to deviate from the intellectual property line established by TRIPS. Nevertheless there are big philosophical issues at stake here. Politicians ignore those two generations at their peril.

Technological and economic implicationspirate_bay
Technological and economic implications are linked because technology dictates the means by which content may be distributed, and without distribution there is no revenue. The Streisand effect mentioned above will likely manifest initially in the market for media as a short-term (and possibly short-lived) , but its long-term implications are much broader. Many of the content owners’ arguments against groups like TPB rest on the flawed premise that demand for content is static and copyright infringement is zero-sum (that is: every copy downloaded represents one less copy bought). The fall in revenue, they claim, is because of copyright infringement, so reducing copyright infringement will necessarily cause revenue to pick up again. There are two problems here: first, the genie is already out of the bottle, and two generations are now accustomed to consuming media on their own terms. They will not be forced to consume media in only the ways which content owners want them to, and whoever applies the stick in an attempt to make them do so will suffer as a consequence, because the content industries depend upon their consumers for survival, not the other way around. Second, and this is critical: by engaging in an aggressive game of whack-a-mole to safeguard a broken business model, the content industry has hastened the destruction of that business model by ensuring that only the fittest filesharing systems survive. Cory Doctorow makes both points better than I:

If The Pirate Bay shuts down, it’s certain that something else will spring up in its wake, of course — just as The Pirate Bay appeared in the wake of the closure of other, more “moderate” services.
With each successive takedown, the entertainment industry forces these services into architectures that are harder to police and harder to shut down. And with each takedown, the industry creates martyrs who inspire their users into an ideological opposition to the entertainment industry, turning them into people who actively dislike these companies and wish them ill (as opposed to opportunists who supplemented their legal acquisition of copyrighted materials with infringing downloads).
It’s a race to turn a relatively benign symbiote (the original Napster, which offered to pay for its downloads if it could get a license) into vicious, antibiotic resistant bacteria that’s dedicated to their destruction.

Content owners, by enforcing the discipline required to survive in a hostile environment, are granting clandestine distribution systems an enormous advantage: those systems evolve and improve while their own system stagnates. There are a few exceptions: Radiohead and Trent Reznor are at the forefront.

Of much more grave seriousness, however, is the chilling effect this verdict could have on the internet – search engines, ISPs and end users. Roger Wallis, Emeritus Professor of Media at Sweden’s Royal Institute of Technology (and an expert witness for the defence) warned:

This will cause a flood of court cases. Against all the ISPs. Because if these guys assisted in copyright infringements, then the ISPs also did. This will have huge consequences. The entire development of broadband may be stalled.

His point is that TPB’s technology meant their servers never hosted copyright files – those were hosted on its users’ home computers, and TPB simply provides a search engine to find content and a service which tells one user’s computer where to find files hosted on another user’s computer. If that makes one criminally liable, then those who are doing the actual distribution (te end users) and a whole lot of other people and organisations whose computers provide similar assistance including search engines and ISPs, are also criminally liable – and could even be more culpable than TPB were, since those computers actually host and distribute the copyright files themselves. Due to the highly robust, distributed, fault-tolerant nature of modern content-distribution systems made fit by nearly a decade’s worth of fine-tuning, there is simply no way to beat filesharing without targeting end-users and ISPs on a case-by-case basis. Any reluctance to roll out or use broadband internet services will have catastrophic flow-on economic effects, and given that media consumption is a major driver of broadband, content owners are in a catch-22 situation: either they aggressively prosecute ISPs and end-users or they fail to beat filesharing. In the former case, they get to keep their business model, at the cost of making criminals of their consumer base and ensuring that yet more complex, robust and powerful distribution mechanisms are developed – and possibly at the cost of the internet as we know it. In the latter case, they have to develop systems which are fit enough to survive on their own. The longer they delay, the harder it will be.

An upcoming post will look at the battle for hearts and minds which will fundamentally determine the winner in this contest.

L