At CCER, Everything Old is New Again: Who is Circumventing Whom?

If you live in a jurisdiction that permits ballot measures, you get used to petitions and signature drives—and their foibles.  There are lots of rules about signatures on qualification petitions for ballot measures and the quality and validity of the signatures are given some degree of scrutiny. 

Why?  Because most of the ballot measures have backers, sometimes shadowy backers, who try to manipulate the process in an effort to accomplish indirectly what they cannot accomplish directly through lobbying the legislative branch (see the long standing effort to legalize marijuana in California).  And of course the deep-seated desire for acceptance–you know, for “friends”.  The desire to give the impression that there is popular support for their view.  This desire is not foreign to those trying to manipulate the online electorate either.  Boss Tweed, Huey Long, Richard Daley and Richard Nixon would all feel right at home.

The balance that must be struck with ballot measures and other direct legislating by the electorate in a democracy is to preserve free expression while protecting against—well, circumvention.  I wrote a post in 2007 about the EFF’s unintentionally hilarious “petition” to “Stop the RIAA Lawsuits” (see “Still Shilling After All These Years…”.  This “petition” had absolutely no security on it at all and anyone could sign up under any identity they chose whether real or imaginary.  I found a few that were kind of funny: 

At the risk of quoting myself, “…I finally happen to hit on…a few names, names like “O. Online Poker”, “T. Texas Holdem”, “P. Poker Rooms”, [must be Berkman students] towns like “Google, CA” (must be Stanford?), “Świnoujście, ME”, “f, MA”, “Beverly Hills, LA”, “Beverly Hills, MI”, Dubai, “SCOTLAND!!, AK”, and my personal favorite “J. Travolta, Los Angeles”. And then there’s “r. little boys” of “George, AL“. No comment….If you’re going to go to the trouble of having people sign a petition, there is no choice but to put feet on the ground with clipboards and get actual signatures from actual registered voters with actual voter registration cards. Doing this silly digital sign up may be easy and cheap to set up, but guess what–you get easy and cheap–and terrible quality–data.”

As I noted in a number of posts about the form letters used during by the Canadian Coalition for Electronic Rights (“CCER”) during last year’s Canadian copyright consultations, an unexamined Internet “ballot” is a heaven-sent opportunity for corporate manipulators.  CCER reportedly is a shadowy group of modchip makers based in Canada who appear to have a vested interest in being able to circumvent any digital rights management solution with impunity.

The problems with last year’s letter writing campaign in Canada sponsored by the pro-circumvention CCER and promoted by Michael Geist were well-analyzed by Canadian lawyer Richard Owens.  As Owens points out, Geist promoted the pro-circumvention group’s letter writing campaigns on websites that were far less likely to produce Canadian participants but were far more likely to produce a wave of latchkey Low Orbit Ion Cannon operators seeking anonymous self-expression in any country that struck their fancy before Mom came home.  Including Canada.

Mr. Owens is not the only one who has concerns about online letter-writing and other casual polling (such as measuring the number of Facebook “friends” of a particular Facebook group) as a measurement of anything important.  Cass Sunstein of the Obama administration wrote a memo to the heads of Executive Branch departments and agencies, and independent regulatory agencies on much the same subject as Owens.  Sunstein  essentially prohibited the use of such devices and other social media for policy making due the unreliability of the data obtained (which was susceptible to gaming).  So it’s becoming increasingly obvious that any form of online letter writing campaign attempting to influence policy that does not take suitable steps to maintain the integrity of the process is highly suspect.  And susceptible to manipulation by—yes, the hated LOBBYISTS.

As I recently discovered, the Open Society Institute has unapologetically promoted Geist’s connections to corporate government affairs executives as a key factor in organizing his Fair Copyright for Canada group.  (The OSI connection is evidently of significance–Geist credits himself as being a member of the Information Program Sub-Board (whatever that is) of the Open Society Institute, see, so the OSI book in which he plays a starring role is presumably written by colleagues.) 

According to the OSI book, it appears that Geist’s strategy is to use inside information as the basis for  articles published—or perhaps one could say “planted”–in publications such as “…The Hill Times, a Parliament Hill insider publication he knew would get the attention of Ministers, MPs and lobbyists….  [One such] article was later quoted back to [Geist] in meetings with MPs.”  Now I wonder which “meetings” those were and which MPs were parroting back Geist’s influential article to Geist?  Because, I do believe that if one of the hated LOBBYISTS had such meetings…well.  Surely that would have to be disclosed if it were even permitted at all?  OSI doesn’t exactly disclose which corporate lobbyists have been helping Geist, but we can be pretty confident in who they are not.

So in looking back on the last CCER letter writing debacle that Geist promoted, not only do you have to wonder why Geist was promoting the pro-circumvention group’s campaign to an audience of putative non-Canadians, but in light of the revelations in the Open Society Institute’s campaign manual, you also have to wonder who was pulling the strings.  Because after the OSI revelations, the likelihood that Geist acted alone seems about as probable as a pack of homework-eating dogs going wilding in the company of the schoolchildren of Pacific Palisades.

The Canadian Parliament is once again working (probably harder than they really should have to) on a copyright reform law to implement the WIPO Internet Treaties.   OSI’s manual tells us that Geist coined the epithet “the Canadian DMCA” to refer to the last attempt at copyright reform in Canada in 2007.  And guess what?  That is exactly what the pro-circumvention CCER is calling the current Canadian copyright legislation.  C’est une coïncidence si très bizarre, n’est-il pas?

CCER is getting back into letter writing mode with a letter bearing a striking resemblance to Geist’s  own writings on the digital rights management issues.

Perhaps learning from their mistakes, CCER has posted an automated letter online, but this time they include a disclaimer that “[o]nly Canadian citizens are encouraged to contact members of the Canadian Government regarding copyright reform.”  Well, isn’t that refreshing?  For good measure they are geo-blocking access to the letter for IP addresses outside of Canada.  But just in case—you can download a PDF.  Yes, the letter is available “[i]f you are a Canadian citizen living outside of Canada or you have been wrongfully blocked by our GeoIP filters….”  I wonder if the CCER meant to imply there were two categories of persons who could use the letter–the Canadian diaspora and also anyone who feels wronged by geo-blocking.  (Let’s ask “P. Poker Rooms”, maybe she/he would know the answer.)

So what is that letter designed to accomplish?  One would think that fans of CCER would be at least as legally knowledgeable and eloquent as the members of CCER?  Surely they can come up with sentences like this one all on their own:

“A solution to Bill C-32ʻs contentious core problem and the means to avoid the unintended consequences generated by the broad protection for digital locks is to amend the Bill to permit circumvention for lawful purposes. Not only is this approach compliant with the WIPO Internet Treaties, but it also provides legal protection for digital locks while maintaining the crucial copyright balance. I urge this Committee to either add an infringing purpose requirement to the prohibition of circumvention or add an exception to the legislation to address circumvention for lawful purposes.”

 Or how about this one:

 “Some have suggested that market forces will decide the fate of digital locks in Canada and that codifying strong protection for such measures in Canadian law is simply good interim policy. I disagree. Rather than handing control of Canadiansʼ digital rights over to corporations, the Government must consider regulating how digital locks are implemented to ensure they are not simply used to deny user rights.”

I wonder if anyone is planning on having these sentences quoted back to them in meetings with MPs?  And is that going to be before or after getting what the OSI referred to as “inside information” from corporate government relations officers?  Because after all, “Geist identifies government relations officers for major corporations as good sources of information.”

Are these “major corporations” different than those corporations to which the Canadian government wants to hand over control of Canadian’s digital rights, or are those different ones?

Yes, it is all so confusing.