Tuesday, April 24, 2012

Direct attack on democracy in The Netherlands by lobby organisation

Today something troubling occurred in The Netherlands. A lobby organization named BREIN, demanded that a democratic political party would be held on the leash by the same lobby organization, in terms of freedom of expression. In my opinion this is crossing a line. This is not just fighting a dispute. It is actually a disruption of the democratic process. How can a political party voice its opinion, if it may only say what is approved by a lobbyist organization. To make matters worse, in The Netherlands, the election campaigns are heating up. But let's take a step back, and look at the past. Because the lobbyist organization isn't well known for its obedience to the law.

BREIN is perhaps best known for shutting down Dutch eDonkey 2000 link giant ShareConnector[1] in December 2004. Due to controversy over the legality of links to illegal content, and a lack of quality in the evidence provided by BREIN,[2] the case has not been put to trial yet. After being offline for two years, ShareConnector reopened in December 2006 but after barely one year; on November 12, 2007, Shareconnector went offline again.
Last Monday the guys from BREIN visited me at home to convince me to close ShareConnector or else they will start a civil proceeding with a claim. Of course, this does not mean I agree with their point of view, it's just that I can't afford taking any risks. As of today, November 12, 2007 I decided to close down. If there is anything new to report, you will be informed. Thank you for all your support and understanding.

How these "visits" happen, is often clearly criminal according to reports which can't be 100% verified. There have been reports (I can't say if these are true, since it's only word of mouth), where BREIN officials would visit a person with babies, and they would say "You better shut down your activities, or the future of that little one over there won't be so nice.". This IS illegal. But I can't confirm or deny these allegations, and I won't take these into account further. What else is there?

After a series of allegations that Usenet community Fill Threads Database (FTD) was acting illegally, the Dutch FTD started a lawsuit against BREIN in May 2009. BREIN president Tim Kuik alleged in a Dutch newspaper that “Although they [FTD] are not carrying illegal content on their servers, what FTD does is simply criminal”. FTD is suing for a retraction of this libelous statement and demands a declaration from the courts that its activities are entirely within the law.

This is not clearly criminal, as BREIN managed to get a verdict from the judge declaring that FTD was acting illegally. What is questionable though, is that BREIN made such charges in front of the mainstream press, without having a verdict. And that's something we'll see in the next thing...

On the 1 June 2009 Tim Kuik published an online article claiming BREIN's website was "broken" by hackers performing DDoS attacks. He speculated about a possible connection with the intended court summons against The Pirate Bay. Several independent sources reported the site's deep links were still available (only the frontpage was inaccessible) and as such BREIN's claim of having been attacked was false. Brein responded claiming the attacks had stopped and that the site's year old backup had been used to recover the site. Because the backup was dated, the website was now under construction.
Internet blog Geenstijl purportedly discovered BREIN's server was still fully operational and there had been no attack whatsoever - the complete news archive was still available.[5][6][7] (A password was later added to BREIN's news archive to prevent further checks on availability.)
On 23 June 2009 The Pirate Bay announced a lawsuit against Tim Kuik on libel charges, claiming The Pirate Bay had nothing to do with the alleged DDoS attack.

What this shows, is that BREIN doesn't refrain from using statements and lies which can cause a competitor (because that's what TPB is, nothing more) to have a bad name in media. This is effectively framing or making libelous statements. But BREIN got away with this, and 2 other things which are not only just questionable, but actually clearly criminal:

BREIN attracted controversy again when several suspicious aspects of their lawsuit against The Pirate Bay and Reservella were revealed, including evidence that documents used to link Fredrik Neij of The Pirate Bay to Reservella were faked.[10][11] Peter Sunde and the Dutch Pirate Party filed criminal felony charges against both Tim Kuik and BREIN for fraud and forgery.
In January 2011, Dutch anti-piracy outfit BREIN targeted one of the Internet’s largest warez piracy topsites. The site, known as Swan, was taken down by hosting provider WorldStream and without judicial process BREIN seized its servers. The owners of the servers retaliated by seizing them back and may sue BREIN for breach of privacy and property rights as BREIN is a private organization and has no special legal or investigative authority.[12]

BREIN got away with both of these things. It's really a miracle that they came away with it, since it's clearly a criminal act. I suppose BREIN has good lawyers.

So, going back to the recent state of affairs. The fight started with BREIN forcing the biggest ISP, and a smaller ISP to block access to the TPB for their users. We can debate long over the legal basis of this, but best is to draw your own conclusions. Before the verdict went into effect (feb 2012), many proxies sprang up which offered access to specifically TPB. One of those was the Piratenpartij's proxy, known as tpb.piratenpartij.nl. This proxy wasn't used much for a long time, until BREIN decided to force the Piratenpartij to shut down the specific proxy through an ex-parte court order. In an ex-parte, the Piratenpartij wasn't allowed to voice its concerns, effectively eliminating a fair trial.

In an ex-parte, there should be an urgent case, which also wasn't there. So the legal basis wasn't there, according to several well-known lawyers. Even when the Piratenpartij asked to be heard in court, it was met with laughter. And the most outrageous part? The Piratenpartij was forced to do this, or get a fine of €1.000.000, while the biggest Dutch ISP would get a fine of €250.000. The proportionality of this is entirely missing. The biggest ISP in The Netherlands is a commercial entity which makes millions a month, while the Piratenpartij is a non-profit political party. Even if the Piratenpartij would be forced to pay this fine, it'd take them 163 years to pay this back. Effectively bankrupting the party. This shows how ridiculous the ex-parte was.

The Piratenpartij knew this, and filed a so called "enforcement dispute" (I hope I translate this well, blame google translate if it's wrong), since BREIN was also expanding its demands without consent from a judge. On 17 april, the Piratenpartij got their justice at a judge, and forced BREIN to drop the extra demands. This effectively halted BREIN's advance... temporarily.

Back to today. Today, BREIN and the Piratenpartij had to fight it in the court. It was about the ex-parte, but BREIN added more demands at the last moment. They demanded that the Piratenpartij wouldn't be allowed to talk about anything related to circumventing blockades. How this was formulated, would make it even so everything the Piratenpartij (or any of its members) would say in public and private, had to be checked by BREIN or a lawyer. This effectively kills a political party's free speech. And as I said, matters are only worse because parliamentary elections are coming soon.

The final verdict will be at 10 may. If it should be a negative verdict for the Piratenpartij, it remains to be seen if these elections can be called true democratic elections...

Quotes taken from wikipedia. Licensed under CC-BY-SA.

UPDATE 25-04: BREIN has dropped demands to censor the Piratenpartij, seeing that they went too far (after massive public backlash). The only thing still up for trial is about proxies.

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