What laws would you sign? International law by plebiscite?

One of the interesting spin-offs of the ACTA controversy is the newly discovered devotion that national representatives have towards what they deem to be “public opinion”. There are undoubtedly a number of factors  that have precipitated this state of affairs. Primary among these is the general feeling of misrepresentation that has increasingly gripped the European demos following the economic crisis. Austerity measures are seen as a direct consequence of mismanagement and decisions taken in the name of the people without their consent. When government start using your money to pay for other people’s (bad) debts then you are bound to explode.

Then came PIPA and SOPA – the US’s attempt at controlling the net as we know it. ACTA “went public” soon after – too soon – and the governments of many countries like Poland and Malta found out that they were signatories of – to put it mildly – not too popular an international agreement. Following the recent fad of playing to the public tune governments such as those in Poland and Malta swiftly backtracked and opened the way for public consultation. Of what? For what? And that is the question. This is an international instrument and agreement that facilitates the cooperation between already existing laws and jurisdictions. And yet, and yet we are suddenly bemused by the whole process of signature and ratification.

How dare Dr Gonzi sign ACTA without consultation? How dare they sign an agreement negotiated in secrecy? Yes how dare the government sign an international agreement without consulting the people?

Excuse me but what the hell is ratification if not the process of obtaining the consent of the people via a parliamentary vote? This is not the first time that our nation becomes signatory to another convention without so much of a squeak from the community. In actual fact were it not for the fuss kicked up about “international corporations and their agenda” we would probably never have heard of ACTA or its signing. Instead now we have the anti-ACTAvists forcing parliament to become an open house of consultation in order to get to the  point where we will have a unanimous show of anti-ACTA hands pandering to public perception. If only all laws were passed in this manner we’d legalise marijuana tomorrow.

Then again how about an example of hypocrisy from the pro-internet freedom crowd. I do not see anyone calling for a public consultation on the Council of Europe Convention on Cybercrime. It’s now 10 years and more since it was originally signed and includes protocols on “hate crime in cyberspace”. On the 17th January 2012 10 years had passed since Malta put its signature on the Convention. For some reason I do not know Malta has not ratified the convention yet but that’s not my point. Here’s article 10 from this convention:

Article 10 – Offences related to infringements of copyright and related rights

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of copyright, as defined under the law of that Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July 1971 revising the Bern Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

2 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of related rights, as defined under the law of that Party, pursuant to the obligations it has undertaken under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention), the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

3 A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article in limited circumstances, provided that other effective remedies are available and that such reservation does not derogate from the Party’s international obligations set forth in the international instruments referred to in paragraphs 1 and 2 of this article.

I’d love to hear what the eager legal beavers of the Anti-ACTAvist camp have to say about this particular article. Not to mention the fact that a sufficiently creative mind might even construe the provisions on corporate liability to be a vague attempt at putting the onus of criminal acts on ISP providers. Whoaaaaa… I’ve just read Article 18 and I think you should read it too…

Article 18 – Production order

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:

a a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and

b a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.

Dare I show you article 19? Sit down. Take a deep breath. We’re entering the territory of vague references to strip searching you for that USB key you keep tightly hidden up your anus…

 

Article 19 – Search and seizure of stored computer data

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to search or similarly access:

(a) a computer system or part of it and computer data stored therein; and

(b) a computer-data storage medium in which computer data may be stored in its territory.

Hmm. I wonder if those scheming corporations have taken over the Council of Europe too? I’ll let you discover the other interesting questions such as “interception of data” or the juicy bit about “extradition” (I wonder if you could get interned into Guantanamo). That’s nothing. Look at the  …

ADDITIONAL PROTOCOL TO THE CONVENTION ON CYBERCRIME, CONCERNING THE CRIMINALISATION OF ACTS OF A RACIST AND XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER SYSTEMS

….  Malta signed this protocol too (28th January 2003) but it has also failed to ratify it. The aim of the protocol is to criminalise acts of racist and xenophobic nature committed through computer systems (duh). Quite topical no? Here is a sample article (Article 5):

Article 5 – Racist and xenophobic motivated insult

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

insulting publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.

2 A Party may either:

(a) require that the offence referred to in paragraph 1 of this article has the effect that the person or group of persons referred to in paragraph 1 is exposed to hatred, contempt or ridicule; or

(b) reserve the right not to apply, in whole or in part, paragraph 1 of this article.

It’s quite a useful instrument especially in this day and age when we seem to be feeling the need for defining such “aggravated” crimes.

Unfortunately Malta has neither ratified the Convention nor of the Protocol. I doubt whether ten years down the line somebody will start yelling about the lack of consultation when Dr Fenech Adami’s government put its signature at the end of both. Why we have delayed ratifying both is a question I’d love to find an answer to. What I’d also like to know is why all the newly discovered legal experts who have summarily judged ACTA’s content have not also been barking and warning about the dangers of some of the provisions in this convention… you never know when it will become law do you! Nor whose behind it (right Mr Scicluna?)

How come this MAAG and other similar groups are suddenly awakened in their V for Vendetta guise challenging this particular agreement and not others? How come nobody has warned against the much more intrusive Convention on Cybercrime?