Intellectual Property as National Security

Interesting research: Debora Halbert, “Intellectual property theft and national security: Agendas and assumptions“:

Abstract: About a decade ago, intellectual property started getting systematically treated as a national security threat to the United States. The scope of the threat is broadly conceived to include hacking, trade secret theft, file sharing, and even foreign students enrolling in American universities. In each case, the national security of the United States is claimed to be at risk, not just its economic competitiveness. This article traces the U.S. government’s efforts to establish and articulate intellectual property theft as a national security issue. It traces the discourse on intellectual property as a security threat and its place within the larger security dialogue of cyberwar and cybersecurity. It argues that the focus on the theft of intellectual property as a security issue helps justify enhanced surveillance and control over the Internet and its future development. Such a framing of intellectual property has consequences for how we understand information exchange on the Internet and for the future of U.S. diplomatic relations around the globe.

EDITED TO ADD (7/6): Preliminary version, no paywall.

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Posted on July 5, 2016 at 10:54 AM • 37 Comments

Comments

Aga • July 5, 2016 11:39 AM

The damage the MAFIAA dealt to the Internet reverberates a decade later in the form of mass surveillance.

We live in the worst of times. The fight over civil liberties online has long since been lost. We’re fighting for our basic dignity, and losing to people who think it appropriate to point a gun in someone’s face for clicking on the wrong Google link. http://arstechnica.com/security/2016/05/armed-fbi-agents-raid-home-of-researcher-who-found-unsecured-patent-data/

Why? Why is it that nearly every single political goal of hackers of old failed in the most perverse of manners? Reading articles like this makes me regret having grown up online. It’s a painful reminder of how much that’s been lost and how much more is left to lose.

Serviam • July 5, 2016 12:24 PM

Speaking of national security, Hillary Clinton has been cleared of gross negligence in removing Comey’s balls to an insecure jar.

WhiskersInMenlo • July 5, 2016 12:33 PM

And yet some agencies and groups collect bugs, features and OS flaws as if they were instruments of power. The reality is these same unfixed bugs are the vectors used by criminals.

One judge asserted that there is no expectation of privacy on a home computer because it will get hacked. Thus data discovered by a TLA was admissible. The logical flaw is that any hacker on any continent could plant store and distribute illegal content (evidence) with impunity thus anything found cannot be admissible because it cannot with any certainty be ascribed to anyone.

Some may have sufficiently unique external signatures to track down criminals. The reality is most criminals operate across jurisdictional (national) boundaries and tracking these individuals can only invite extra legal (law out side of the law) retribution.

Rusty Cog • July 5, 2016 1:49 PM

Once it was established we are a post- constitutional corporatist police state it became easy and customary to define just about anything and everything as a matter of national security.

Fingernail file in the TSA line…national security.
Have chatmail conversation about luknch on the internet….national security.
Take a picture of a government building….national security.

And of course if millions of dollars are at stake….then it’s a slam dunk it’s about national security.

It’s been said here quite a few times, accurately enough, national security trumps everything now.

Everything.

Comrade Major • July 5, 2016 3:00 PM

Intellectual property doesn’t exist and it’s a fraud to sell it. The concept of IP can’t exist without police enforcement.

What’s more important is the fact that concept of IP violates the nature of information: information cannot be sold. You can sell the service to provide the information, but you cannot sell information itself.

That’s a shocking revelation to every monopoly (corporations) – in the information age, they can sell everything, except the information.

The site asks money for PDF files, what a shame.
https://www.youtube.com/watch?v=09vVF-Hvykg

FreeCultureActivist • July 5, 2016 3:03 PM

Using a loaded world “theft” like this just degrades the meaning of the word. When you download a thing from the internet, you make another copy of it, thus increasing overall welfare. When you steal a thing from someone, you deprive the original owner of it.

This is also why we should not think of digital goods as “property”. Underneath the concept of private property is the fact that if one person is using a physical good, then it prevents another person from using it; if I take a physical thing you own, you can’t use it anymore. This is why stealing is immoral. However, this is not true for digital goods; digital goods can’t be taken away from someone. They can only be copied. This makes the argument for labeling them as “property” much weaker.

While argument for a limited length copyright protection can be made, we should not pretend it is to “protect property” or anything like that. Copyright is and should always be thought as a limited duration monopoly granted to encourage creative arts. The creators need to be paid somehow in order to keep them producing things, but after this has been accomplished, anything digital should be made free. This is a simple question of maximizing utility.

That said, I personally think that since in the digital world propagating works is so frictionless, we should seriously start thinking if there is some other way to pay the creators instead of using the rather old fashioned copyright system. This is not as far fetched as you might think. Many artists are already funding their works by crowdfunding or voluntary payments. Many countries already have national television companies to fund creative efforts. The only thing that would be needed is to ensure that the results of these non-copyright funded campaigns are made freely available.

The 70+ year copyright terms that we have nowadays are absolutely nothing but disgusting rent seeking in its purest form. No creative work would have been left unmade if instead of almost a century, the copyright would only last 10 or 20 years. No corporate or author bases their decision to produce a movie or write a book on how much profits their grandchildren or far future stock owners of the company can extract from it. The retroactive copyright term extensions are even worse; if the original work was already produced under the old, shorter copyright monopoly, what possible good could lengthening it achieve?

Gerard van Vooren • July 5, 2016 4:04 PM

Meanwhile, the EC has been doing some serious work Commission signs agreement with industry on cybersecurity and steps up efforts to tackle cyber-threats

“The Commission today launches a new public-private partnership on cybersecurity that is expected to trigger €1.8 billion of investment by 2020. This is part of a series of new initiatives to better equip Europe against cyber-attacks and to strengthen the competitiveness of its cybersecurity sector.”

My guess is they simply got tired.

Clive Robinson • July 5, 2016 5:18 PM

On a historic note America founded it’s self on IP Theft from Europe untill as late as the 1960’s. I can also name occasions in the 1980’s as well (ie body scaner and LCD technology).

It was only when it found this disadvantageous that the behaviour changed.

As for IP being a National Security item, it depends on how you define National Security. If you define part of NS as “the economic well being of the country” then “Industrial Espionage” –in it’s various forms– to get IP falls within that definition. However is it something to go to war about? I suspect most would think not. Unless of course your MIC needs wars to continue it’s existance which again is an NS issue, so any excuse to start a war to burn tax pay dollars.

However for the rapacious US corporations IP protection is insufficient, so market place access is also a NS issue these days, hence the nasty nasty despute resolution clauses in TTP and TTIP that Obama is pushing as hard as he can. In effect this gives primacy to US law and corporations over other sovereign nations National Securiry…

Ross Snider • July 5, 2016 6:02 PM

“In each case, the national security of the United States is claimed to be at risk, not just its economic competitiveness.”

The definition of National Security includes it’s economic competitiveness.

From National Security Presidential Directive – 1 (http://fas.org/irp/offdocs/nspd/nspd-1.htm):

“National security includes the defense of the United States of America, protection of our constitutional system of government, and the advancement of United States interests around the globe. National security also depends on America’s opportunity to prosper in the world economy.”

The definition includes both economic competitiveness and overseas ‘interests’, which often are compared to colonial/imperial ambition.

Citizens assume the term National Security means “homeland defense” but working on this definition (and others like “enhanced interrogation”, “public communication”) have technical meanings that betray colloquial use.

65535 • July 5, 2016 6:41 PM

Intellectual property?

Is that a small subset of “intellectual property” like the plans for an atomic bomb. Is the entire range of “intellectual property” say down to the logos on credit cards?

Is this a one way thing? Is this a two way thing?

How is the NSA coming along retrieving the OPM 4.2 million files stolen?

Let me guess, it will take much higher resources – in fact ever growing budgets. It will take two Utah facilities, no 3 Utah facilities… make that five… heck make it an even 10 fold increase in Utah facilities.

“National Security” is very expensive… especially around election season. Sniff /

Goose • July 5, 2016 6:43 PM

The matter seems only modestly complicated (lol)

World Intellectual Property Organization (WIPO)
Directory of Intellectual Property Offices</a href>

Policy:
“WIPO provides a global policy forum, where governments, intergovernmental organizations, industry groups and civil society come together to address evolving intellectual property (IP) issues.Our member states and observers meet regularly in the various WIPO Committees and decision-making bodies. Their challenge is to negotiate the changes and new rules needed to ensure that the international IP system keeps pace with the changing world, and continues to serve its fundamental purpose of encouraging innovation and creativity.”

The United States IP Offices
Library of Congress, U.S. Copyright Office, http://www.copyright.gov
U.S. Department of Commerce, U.S. Patent and Trademark Office (USPTO), http://www.uspto.gov

65535 • July 5, 2016 7:14 PM

@ Goose

“The matter seems only modestly complicated (lol)”

We could the Obama approach “You did not build that!”

Problem solved!

The NSA could buy 10 million “Me First” badges and proudly wear them to get the ball rolling. /

Bob F • July 5, 2016 7:30 PM

This sounds like Diamond Age.

In that book, IP theft was one of the major crimes a person could commit and the law existed between all countries.

Goose • July 5, 2016 7:49 PM

@65535

To be frank, the mention of it being only modestly complicated was a spoonful of jocularity 🙂

65535 • July 5, 2016 8:02 PM

@ Goose

I got that.

My over the top stuff was to point out that “National Security” seems to cover about everything. And, the two words National Security seems to be a “get-out-of-jail-free” card to justify any actions.

Goose • July 5, 2016 8:25 PM

@65535

Do federal expenditures have to be substantiated, approved, and detailed within the budget process? I don’t know the answer immediately.

Jesse Thompson • July 5, 2016 8:56 PM

National Security today begins and ends with every niggling detail that inconveniences or detracts from the bottom line of the megarich. Gophers on the golf course? National security. Dipshit children picked a bar fight and lost? National security. Can’t get the brand of caviar you were used to air dropped to your yacht a hundred miles out to sea off Barbados because of economic disputes in Chile? Whelp, looks like we’re going to bomb Chile next.

IP makes them more money than anything else combined, because it represents dividing up and claiming our shared cultural heritage which we as human beings require to survive and to communicate with one another via shared experience. So of course any muskrat burrowed into a riverbank in Malaysia who gets to hear bars from “Let it Go” without first coughing up the royalties is a matter of National Security. Send in the ground troops! There is money that I am daydreaming that I could be making, yet somehow I am not!

Mark • July 5, 2016 10:03 PM

Yeah, yeah, yeah…. everything’s a national security issue in America. We know….

BDS duh US • July 5, 2016 11:26 PM

Well comrades, did Bad Boy Bubby Amerika manage to down a slab of Coors and eat 10 hot dogs without starting another war on the 4th of July? Praise the sky fairy!

In all seriousness:

Abstract: About a decade ago, every global citizen started getting systematically treated as a national security threat to the United States. The scope of the threat is broadly conceived to include babies on non-fly lists, brown/yellow/pink people, file sharers, and even those expressing 1st amendment constitutional rights. In each case, the national security of the United States is claimed to be at risk, not just its economic competitiveness. This article traces the U.S. government’s pathology to intellectual property theft as a national security issue. It traces the discourse on intellectual property as more security propaganda within the larger security dialogue of cyberwar and cybersecurity. It falsely claims intellectual property is a security issue in order to broaden and justify the dystopian enhanced surveillance and control over the Internet and its future development e.g. expansion into public places via militarization of the urban landscape (New York wi-fi kiosks anyone?). Such a framing of intellectual property has consequences for everyone since the US will lay claim to future patents on all information exchange on the Internet and routinely hack every computer and internet-enabled device (if they haven’t already) to ‘protect ze Homeland’.

tyr • July 5, 2016 11:39 PM

I think that the IP laws are there to make sure
no one is aware of what happened in the 20th
century until it is too late to avoid a repeat.

They should have granted Dizzy perpetual rights
to steamboat Willy and then shortened the length
of copyright on everything else.

Proudhon had it right when he reviewed property
and its meanings. The giant copying machine known
as the Net is not about to make things any easier
for the rentseekers.

The only copyright law that makes real sense is the
one that says you can’t copyright facts.

fajensen • July 6, 2016 2:44 AM

@Aga –
People should have learned by now that corporations don’t want their assistance, security researchers especially. One can basically either tell 4Chan, some commercial cracking outfit for personal gain or nobody, depending on taste.

de La Boetie • July 6, 2016 3:01 AM

As someone who has developed and registered a patent over the last 5 years, based in the UK, I find that my own security services have shared – indiscriminately as far as I can tell – all my electronic communications with lawyers, agents and advisers (whether encrypted or not), with the US – including at sensitive stages of the process. They have done so in bulk without apparent constraint on what can be done with the information and by whom – including other countries.

It is straightforward to datamine these datasets for IP developments, and indeed, that’s exactly what you’d expect for standard economic espionage.

Personally, I think the actions of my own country’s security services is treasonable, and reflects compulsion by a foreign power plus a healthy dose of personal enrichment and empire building. Someone else bears the costs of this, but that doesn’t seem to factor.

Intellectual property is supposed to increase productivity, yet we’ve seen no evidence of that for some while – which is in large part, I believe, because of the rent-seeking behaviour of content owners/providers and the security services (who peddle the prospect of dubious safety at great cost – which includes stealing genuine attempts to do the innovative).

The patent/copyright systems are precisely designed to benefit large companies who support rent-seeking.

Wesley Parish • July 6, 2016 3:05 AM

@Bruce, this sort of thing profoundly embarrasses me, for entirely predictable reasons:

Sex As IPR Piracy
http://pandora.nla.gov.au/pan/10063/20121104-0003/www.antisf.com.au/index.php/the-stories/sex-as-ipr-piracy.html

“I told him straight,” she said, “— that getting some foreign girl pregnant would be a breach of national security, and he laughed. So I told him that it’d be piracy, that it’d violate the intellectual property our company has in his body, and he threatened me!!!”

It’s not nice, to have one’s predictions – always understood as $Who_Could_Be_So_Stupid – thrown back in one’s face in the headlines.

blake • July 6, 2016 5:49 AM

If you look at it like Newspeak – what does “national security” mean? What is the nation, and what does it mean for them to be secure? What proportion of lobbyist funding is provided by corporations and how much is provided by individuals outside the 1%?

Steveo • July 6, 2016 7:28 AM

I think it will lead to more laws like Germany’s where users’ data can’t be stored overseas. This will obviously be to the detriment of American companies. Development of potentially ITAR controlled systems is already being moved off shore so that developers in another country can create something without ITAR controls for the global market, then an ITAR version can be developed in America to be sold locally. ITAR, copyright, loss of privacy and backdoors, it’s all getting ridiculous.

Wm • July 6, 2016 8:09 AM

Obviously our national security depends upon installing a fascist regime. We will not be safe until our government has access to all of our personal information, data, and always knows our whereabouts. My and every external (BSD/pdSense) firewall must be declared illegal. After reading “Interview with an NSA Hacker”, I can see why I have one.

Goose • July 6, 2016 8:35 AM

@blake

“What proportion of lobbyist funding is provided by corporations and how much is provided by individuals outside the 1%?”

Check out IPO</a href> (Intellectual Property Owner’s Association)

About IPO:
Intellectual Property Owners Association (IPO), established in 1972, is a trade association for owners of patents, trademarks, copyrights and trade secrets. IPO serves all intellectual property owners in all industries and all fields of technology.

IPO’s Vision:
As owners of intellectual property we believe that intellectual property rights accelerate the innovation, creativity, and investment necessary to address major global challenges and improve lives. We strive to maximize innovation across all industries and improve lives throughout the world by fostering high quality rights and effective, harmonized systems to obtain and enforce them, on behalf of all our members.

http://www.ipo.org/index.php/publications/top-300-patent-owners/

Roger Reynolds • July 6, 2016 10:25 AM

I respect the capitalistic approach to the paywall for the content, however I am disappointed in that as a security professional in the commercial sector, paywall subscriptions are a luxury denied.

Bruce, it makes some of us feel like ‘have nots’ when the elites may be granted access to publications for the sake of ‘reviewing’ and sharing.

were you able to access, and if so, was it because of your stature in the industry or did you already have access?

r • July 6, 2016 11:11 AM

@Rodger, Bruce, others

As a hobbyist, I don’t think they’re is a deductable scheme. But I could certainly come with a method to deduct access as a business requirement for any number of journals.

Is anyone familiar with how that works?

@Rodger it may even work as a related ‘business expense’.

Believe me, I sympathize as a hobbyist/layman.

mark • July 6, 2016 11:57 AM

Y’know, I just looked at the headline again, and had a couple of thoughts.

  1. If it’s national, then, gee, isn’t all IP created for the government with tax dollars supposed to be open and free use by citizens, who paid for it?
  2. If it’s not treated that way, and the feds haven’t nationalized it, then it’s not national security.

    mark “repeal the DMCA”

As_Luck_Would_Have_It • July 6, 2016 12:41 PM

A priest, a rabbi, and a physicist walk into a bar….

Wait, wrong forum?

albert • July 6, 2016 1:25 PM

@Goose,

It would be interesting to see the breakdown of patents by classification. For example, software patents, patents of mathematical algorithms, patents of business methods, and various other BS patents.

I would think the numbers would be quite a bit lower if those were removed.

Also, the totals don’t tell the whole story. The ‘strength’ of a patent depends upon the financial abilities of its holder, and, often, but not necessarily, the ‘strength’ of the patent.

The USPTO is a cash cow for the USG, over $700M/year last I checked (I wonder if it broke $1B yet).

So, no, there’s no patent reform on the horizon…

. .. . .. — ….

Goose • July 6, 2016 8:04 PM

@albert

Yeah, the U.S. Patent and Trademark Office (USPTO) has an easy-to-watch video tutorial if you are interested: Basic Facts: Trademarks, Patents, and Copyrights.</a href>

Trademark = Brands (USPTO)</a href>
Patents = Inventions (USPTO)</a href>
Copyrights = Original Artistic Works (U.S. Copyright Office)</a href> – Computer Software fits here

Copyright FAQ</a href>

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

Searchable Copyright Public Catalog (1978 to present)</a href>

tyr • July 6, 2016 9:43 PM

“A priest, a rabbi, and a physicist walk into a bar”

The bar was paced across the road by the IC.
The guards behind the bar explain that to go
further, the priest must place a microphone
in the confessional, the Rabbi must have all
services and scriptures in english, and the
physicist is no longer allowed to publish any
fact that could conceivably effect national
security. They must sign a non disclosure
and are not allowed to discuss this or they
will be charged with treason.

If you look back at the bar from the inside
it is labelled ‘freedom through work’.

Dennis • July 8, 2016 1:15 AM

@ mark, ” If it’s not treated that way, and the feds haven’t nationalized it, then it’s not national security.”

LOL no of course it’s not. Do you think you can use mass surveillance to spy on your spouse just because it’s paid for by tax dollras? Nope.

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