enclosures

The Enclosures of Appalachian Commons

The recent industrial disaster in West Virginia, which saw the leakage of vast quantities of toxic chemicals into the river and drinking water supplies, prompted Grant Mincy of East Tennessee to reflect on the enclosure of countless commons in the Appalachia region of the US.  His piece in Counterpunch, “Reclaiming the Commons in Appalachia,” caught my eye because it pointed to the extreme inequalities, suffering and dispossession that have occurred in Appalachia as corporate control has gotten more concentrated.  A sudden – the huge spill of chemicals into the river – then shines a bright spotlight on the situation.

Mincy notes how the “extractive resource industry” – chiefly coal companies – have used their property rights and political influence to enclose the commons of Appalachia:

The use of eminent domain and compulsory pooling has robbed communities of their cultural and natural heritage.  Capital is the authority of the Appalachian coalfields, and has created systemic poverty and mono economies.  Instead of prosperity in the commons, the mechanism of authority has spawned tragedy.

Property is theft in Appalachia. The current system is concerned with the well-being of the politically connected corporati instead of the common good – Appalachian communities. This system exists because legal privilege is granted to industry. The development of this socio-economic order is political, as opposed to free and participatory. The current authority in the coalfields, the corporate state, is illegitimate. It is far past time we transition to society free of it.

There are the official stories that we tell ourselves about constitutional democracy and citizen rights -- and then there are the ugly political realities of the struggle against unaccountable power.  Gary Ruskin, a veteran activist (most recently in the California voter initiative for GMO labeling), shines a bright light on the latter in a new report, Spooky Business:  Corporate Espionage Against Nonprofit Organizations (pdf file), just published by Essential Information

Ruskin’s report exposes a world about which we have only fragmentary, accidental knowledge.  But enough IS known to confirm that large corporations carry out a broad range of corporate espionage activities against citizen activists for exercising their constitutional rights (to petition their government for change and to publicly speak out on public policies).  

“The corporate capacity for espionage has skyrocketed in recent years,” writes Ruskin.  “Most major companies now have a chief corporate security officer tasked with assessing and mitigating ‘threats’ of all sorts – including from nonprofit organizations.  And there is now a surfeit of private investigations firms willing and able to conduct sophisticated spying operations against nonprofits.”  Many of these “security” personnel are former intelligence, military and law enforcement officers who once worked for the Central Intelligence Agency (CIA), National Security Agency (NSA), US military, Federal Bureau of Investigation (FBI), Secret Service and local police departments. 

None of this should be entirely surprising.  The early labor movement in the US was often illegally attacked and infiltrated by Pinkerton thugs.  In 1965, General Motors notoriously hired private detectives to investigate Ralph Nader’s private life and try to dig up incriminating information about him.  Nader, then a 31-year-old unknown, had just published a book, Unsafe at Any Speed, which exposed the designed-in dangers of automobiles.  The revelation of GM’s tactics and its awareness of its cars’ defects unleashed a ferocious backlash, enough to make Nader a famous crusader and to spur enactment of a new federal agency to regulate auto safety.  More recently, police and corporate infiltration of the Occupy movement has occurred.  (David Graeber’s recent book, The Democracy Project, has some good accounts of this.  See also The Progressive magazine.)

While Ruskin concedes that his accounts represent only “a few snapshots, taken mostly at random arising from brilliant strokes of luck,” his report documents an alarming range of acts of corporate espionage or planned espionage.  Among the highly unethical and/or illegal acts committed:  surveillance, infiltration, manipulation and dirty tricks.

It happens all around the world, every day – corporate enclosures of shared, sustainably managed renewable resources.  Brutal abuses of the land, colossal disruptions of communities.  And yet investors and corporate management always cast themselves as the champions of progress, civilization, jobs and the public good – and respectable opinion somehow accepts the ecological insanity of the plans as necessary.  We know the rest of the story. 

These thoughts were provoked by a recent commentary about a massive proposed open-pit mine near Bristol Bay, Alaska.  The project is being pushed by a British-Canadian corporate alliance, the Pebble Partnership, which audaciously claims that its mining could power “green energy initiatives.”  The Pebble Partnership's website helpfully notes that “the difference between being a stone age culture and a post-stone age culture is metal,” implying that the Pebble Mine is just another step forward for civilization and away from the Stone Age. 

The truth is that under a best-case scenario, the mining of copper, gold and molybdenum near Bristol Bay will destroy up to 90 miles of streams and 4,800 acres of wetlands.  The mining operations will supposedly confine billions of tons of mine tailings within 700-foot tall dams.  But in a place where earthquakes are common and the land is wet and the wilderness pristine….well, we all know that “accidents will happen.”  If the mine is built, you can be sure that a BP-style disaster will eventually ruin the biggest spawning grounds for sockeye salmon in the world.

The Community Environmental Legal Defense Fund has been doing pioneering work for many years in trying to protect the rights of communities against corporate enclosures, especially in its home state of Pennsylvania.  This work is impressive for trying to blend civil disobedience and law at the municipal level:  a bold, creative strategy to forge new legal standards to protect the environment and the rights of communities.

The executive director of CELDF, Thomas Alan Linzey, recently published a powerful piece about a landmark ruling by a Pennsylvania judge holding that corporations are not “persons” under the state constitution. The litigation revolved around a claim by Range Resources, a gas extraction corporation, that it has a constitutional right to privacy under the Pennsylvania Constitution.  The corporation had tried to prevent the public release of a sealed settlement agreement between it and a family in western Pennsylvania that said its water had been contaminated by fracking. 

But Judge Debbie O’Dell-Seneca of the Washington Court of Common Pleas denied the request, saying that “in the absence of state law, business entities are nothing.”  If corporations can claim independent rights, she held, then “the chattel would become the co-equal to its owners, the servant on par with its masters, the agent the peer of its principals, and the legal fabrication superior to the law that created and sustains it.”  It turns out that Range Resources and other corporations had paid out $750,000 to settle claims of water contamination caused by fracking.

Cloud Computing as Enclosure

As more and more computing moves off our PCs and into “the Cloud,” Internet users are gaining access to a wealth of new software-based services that can exploit vast computing capacity and memory storage.  That’s wonderful.  But what about our freedom to create and share things as we wish, free from corporate or government surveillance or over-reaching copyright enforcement?  The real danger of the Cloud is its potential to limit how we may create and share what we want, on our terms.

There are already signs that large corporations like Google, Facebook, Twitter and all the rest will quietly warp the design architecture of the Internet to serve their business interests first.  A terrific overview of the troubling issues raised by the Cloud can be found in the essay, “The Cloud:  Boundless Digital Potential or Enclosure 3.0,” by David Lametti, a law professor at McGill University, and published by the Virginia Journal of Law & Technology.  An earlier version is available at the SSRN website.   

Lametti states his thesis simply:  “I argue that the Cloud, unless monitored and possibly directed, has the potential to go beyond undermining copyright and the public domain – Enclosure 2.0 – and to go beyond weakening privacy. This round, which I call “Enclosure 3.0”, has the potential to disempower Internet users and conversely empower a very small group of gatekeepers. Put bluntly, it has the potential to relegate Internet users to the status of digital sheep.”

I’m pleased to report that the English edition of a new anthology of essays, The Wealth of the Commons:  A World Beyond Market and State, is now available!  I’ve been working on editing the book with my German colleague Silke Helfrich for nearly a year and a half, so it’s wonderfully satisfying to see the book in its final, printed form. 

Let me immodestly state:  Never before have so many different international voices about the commons been brought together in one volume.  The Wealth of the Commons consists of 73 essays by a diverse roster of international activists, academics and project leaders. It consists of descriptions of specific commons innovations, essays on the theory and economics of commons, accounts of different types of enclosures around the world, and much else.

There are accounts of fishing commons off the coast of Chile; fruit sharing from abandoned orchards in Germany; and an overview of subsistence forestry in Nepal.  There are many accounts of market enclosures, from dam-building in India to mining in South America to the international land grab now underway in Africa and Asia.  The book also features a series of essays on knowledge commons and more than a dozen essays focused on commons-friendly policy innovations.

The soft-bound, 442-page book is published by Levellers Press, a small, innovative publisher here in Massachusetts that is also a worker coop and itself ardently committed to the commons.  I love the fact that a book on the commons is being published by a publisher that truly honors the Levellers, one of the great movements of commoners in the seventeenth century.  The book can be bought from the Levellers website for US$22.50 plus shipping and handling.  More about the book can be found on its website, www.wealthofthecommons.org

The Texas Supreme Court has dramatically rolled back the scope of the public trust doctrine as it applies to Texas beaches in a 5-3 ruling by the all-Republican court. This means that the public’s right to enjoy shorefront on the Gulf of Mexico will be sharply curtailed in the years ahead -- a major victory for private property fundamentalists.  Judicial activism, anyone?

The court’s decision focused on the public's access rights to beaches when hurricanes or storms have eroded a public strip of beach.  Should the public be prohibited from using the "new beach" that might now be situated on privately owned land?  Or should there be a “rolling easement” that recognizes public access no matter how natural forces remake the actual shoreline? 

For decades, the Texas state public trust doctrine gave a rolling easement that assured public access to beaches.  That access right did not inhere in a particular strip of land, but in a general right of access.  Now, the court ruled, reversing decades of established law, if a storm washes away the public beach, “the land encumbered by the easement is lost to the public trust, along with the easement attached to that land.”  As reported by the Texas Observer, “the court dismissed the 180-year-old custom of public enjoyment of Texas beaches as ‘unsupported by historic jurisprudence’ and ‘a limitation on private property rights’.”

State attorney general Greg Abbott noted:  “With the stroke of a pen, a divided court has effectively eliminated the public's rights on the dry beach….The majority could only cite—nothing.  Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.”  Even the Galveston Chamber of Commerce joined the attorney general in seeking to uphold the historic understanding of the public trust doctrine.

"Medicine First, Stockholders Second"

It was a pleasure to see Arnold Relman and Marcia Angell receive such well-deserved visibility in yesterday’s New York Times for their campaigns against the “commercial exploitation of medicine.” Drs. Relman and Angell are both former editors of The New England Journal of Medicine, together and separately, from 1977 to 2000.  They are also husband and wife since 2009.  He’s 88 and retired, and she’s 72 and still teaches at Harvard Medical School. 

Relman and Angell built the NEJM into a formidable editorial platform during their tenures as editors.  Much of this came from the quality of the research that they published.  But it also derived from their willingness to challenge Big Pharma’s insidious attempt to corrupt the independence of doctors, medical journals, medical education and patients.  Here were two highly esteemed physician-editors using the sheer credibility of research and their journal’s reputation to face down the multi-billion pharmaceutical industry, which has unleashed a veritable hydra of wily, unethical schemes to boost profits. 

Among them:  undisclosed industry payments to researchers to produce studies that make a new drug look good; undisclosed industry payments to leading physicians to teach courses that have the effect of promoting certain drugs and medical devices; undisclosed industry junkets and gifts to physicians to try to encourage more prescriptions of certain medications.  And so on.

One of the great achievements of the Occupy Wall Street movement, after only six weeks of protest, has been its unmasking of some deeply entrenched illusions about our rights of free speech, access to public spaces and the meaning of democracy. OWS has done this not with words alone (truth-telling tends to be consigned to the fringes of respectable opinion), but through mostly peaceful public confrontations of Power. 

As we saw in the Sixties, it takes such direct confrontations to force Power to reveal ugly truths that otherwise must be masked.  In the case of the Occupy protests, it is the truth that public spaces do not really belong to the citizenry; that private powers can curb dissent through procedural pretexts notwithstanding the First Amendment; and that democratic accountability as now practiced in the American empire is mostly a charade.

When an outburst of real democracy emerges, as it has in hundreds of Occupy cities, it sends shockwaves of fear throughout the political establishment and business – because real democracy advances a whole set of interests that are anathema to the elite consensus and pseudo-democracy that now prevails. 

Blogger Namiza Naqvi makes some penetrating points about these issues in a fascinating post about the re-privatization of public spaces.  Naqvi writes:

"An overarching issue is the public versus private ownership in everything from police to politicians to parks to property all over the planet in its cities and its villages. Whether it is a military or it is police the purpose seems to be to serve this end of privatization.

"The reaction by the law enforcement agencies to the [Occupy] protests have proven that people protesting the occupation or privatization of public property are viewed as criminals by the privately owned 21st century state..... In the eleventh hour of the 21st century in Times Square: I watched the police pushing the barricades even further in on the sidewalk cramming the demonstrators even further on an already narrow space and creating a potential crisis if the crowd got jammed in and someone fell or a stampede broke out because of all the police on horseback. The police steadily pushed back the barricades and diminished the space where protesters could stand and it seemed that the cops by doing this were forcing the crowds to overflow onto the street and creating the pretense for arresting people for not remaining within the designated area for the protests.  As I watched this situation at Time Square I thought of all the fences and blockades and barricades in other parts of the world where people are squeezed off of their lands—their homelands—their homes razed to the ground and bulldozed turned into private properties---while the people are forced into dangerous environments—flood basins or coastlands or unwelcoming hostile cities in their own or foreign countries—in the path of disaster—or into cities where they have no chance of incomes—living in ghettos—begging, living on the streets homeless—only to be further abused and harassed by police and militaries.  

When Play Becomes an Industry

Enclosures of culture are inherently difficult to see because they are so seemingly isolated, gradual and invisible. A great example is the commercialization and commodification of play, one of our most instinctive and important human activities, especially in childhood.

So what happens when a giant octopus of a sports industry begins to professionalize and regiment the natural inclinations of play? What happens when a commercial harness is put around our sense of fun and recreation and goofing-around, so that it can become a powerful money-making machine? What happens to ethics and sportsmanship? What happens to the experience of childhood?

These were among the topics discussed at a small conference convened in September 2009 by the Lake Placid Sport Forum in cooperation with the Aspen Institute. The event was one of the more fascinating side-trips that I have taken as a rapporteur. Coming from a wonky political background, I had never personally encountered so many deeply committed athletes in the same room.

 

 

 

 

 

 

 

 

 

 

 

Hanging out at a small conference center and private home in Lake Placid, New York, I met Mark Messier and Mike Richter, two legendary former hockey stars with the New York Rangers. I also met Olympic track star Al Joyner and hockey player A.J. Mleczko, among other serious athletes. While each of these people were incredible physical specimens, they were, more to the point, incredibly committed competitors with an almost spiritual focus on the beauty of sports competitions and play itself.  At the conference there were leading sports journalists from Sports Illustrated, ESPN and Business Week. And there were a variety of coaches at all levels (professional, college, amateur), sports physicians and psychologists, journalists, community leaders and parents.

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