Friend Of The Court: BAN Defamation of Intercon

Below is why I think the case of defamation against Basel Action Network is long overdue.

The defamation case I'd suggest is as follows.  Whether or not Intercon exported hazardous waste, BAN did not know what exactly Intercon supposedly shipped at the time they notified China's EPA.  BAN also knows that China considers used tested working laptops to be hazardous waste.  BAN also knows, that when they broadcast the Chinese determination, that most people will assume the "crime" to be shipping raw unsorted junk, 80% waste, to a yard where children will burn it.  BAN knows about "profiling" the export market - because BAN invented the profile, and makes all their cash from it.

This may be Little Big Horn.  BAN may have finally bitten off more than they can chew.  The Intercon Case looks to me like STRIKE THREE vs. the Basel Action Network

It is Criminal in China to import "second hand" material.  The Chinese Communist Party owns factories which make new goods, and is not shy about enforcing its plans for obsolescence.  If BAN were a local activist group, they could be forgiven for making the assumption that an unknown - working laptop, repairable monitor, or bale of Christmas Tree lights, might be hazardous.  But they play it both ways, as the foremost most knowledgeable, certifying authority, and the well-meaning activist "just asking questions".

BAN shifts nimbly from legal expert, to paid representative, to a hyping watchdog.  In this particular case, of the Chicago Heights recycler, BAN knows that the container may have contained A) working equipment, B) scrap sent to an honorable professional recycler, or C) perhaps hazardous waste for children to burn... but BAN did not know which one when they made their announcement... because the Chinese source (whom they notified to inspect) makes NO distinction between these "second hand" goods.

In this particular case, when BAN informed the Chinese that Intercon had shipped the containerload, the determination by the Chinese official to call the second-hand goods (working, repairable, recyclable, or waste) a "hazardous waste" was a virtual certainty.

At a conference in Washington DC, EPA, Interpol officials met for a special session on "e-Waste" exports.  Jim Puckett was in attendance, and was a speaker.  On the same day, a speaker from the Sino EPA in Hong Kong spoke to the group in English.   He spoke about "green wastes", a listing China was going to propose to improve imports.  He also spoke about China's intention to stop "trans-boundary" movement of containers which change ships in Hong Kong's port.

[The latter was quite disturbing to me... China may be the competent authority for what is defined as "waste" and "hazardous" within China (though it may not, the courts in Hong Kong would allow a suit to bring Department of Commerce in to challenge a "non-commodity" or "non-property" ruling).  But for China to say it can declare a commodity to be "waste" when it is shipped from Party A to Party B, and enters the port of China (Party C) in transit, is an alarming precedent to announce.]

I raised my hand from the audience and was called on to ask a question.  It was a question I had asked Chinese EPA officials in Hong Kong a few years earlier.  I had been told that China identifies ANYTHING "second hand" to be waste.  I asked whether, if I brought a one-week old fully functional tested working laptop with me to China, and decided to give it as a gift to a Chinese host, whether my prior use of the laptop rendered it "waste" and "hazardous waste".  The Chinese Official (I can find his name) said I was right, it's an environmental crime.  That the laptop was second hand, and contained circuit boards, and therefore it would be an illegal transboundary movement in China.

Second-hand is defined as "waste" in China.  So a Chinese "discovery" of second hand equipment may sound  a lot worse than it is.  You just don't know until you get the contents of the container.

BAN's leader Jim Puckett was at this meeting, and he and I have had this discussion in person, and he knows full well that China would identify any tested working equipment as "hazardous waste".  According to his website, he's been an expert in these laws for over a decade.  By contrast, Basel Convention (Annex IX B1110) considers even non-working second-hand equipment to be potentially commodity and not waste (if sent for repair), and the USA considers the intent of the buyer and shipper in the determination.   BAN has its own definition involving removal of parts prior to repair (no one in the world does this, to my knowledge).  The point is that the "determination" is used by BAN in its press release to confuse journalists, just as they confused CBS, PBS, and Terry Gross about the "80%" of the world which generates half of all e-waste on their own.

BAN is an expert on these issues of determination and trade barriers, and yet claims they relied on the inspection of a Chinese authority in making a public announcement about Intercon.  BAN cannot claim not to know that the definition of the Chinese authority included non-hazardous and even working items.  (In fact there is a WTO lawsuit over China's use of environmental labels as a non-tariff trade barrier).   By telling China that Intercon had shipped a container, and that Intercon was a trader in second-hand electronics, BAN had basically set in motion a test which Intercon would fail no matter what the contents of Intercon's containers. If BAN didn't know the contents to start with, it was a reckless act to sick the Chinese enforcer on the container in the first place.  And the signs are that BAN couldn't wait to announce what they were going to announce... they launched at Intercon the same way as they launched at Asian and African businesspeople in the past.

China's interpretation of second-hand makes it a watchdog that bites everybody, criminals, children, and mailmen.  I know that, and BAN knows that.  But the American public is going to believe that there was a criminal involved, based on BAN's "information" that 80% of all USA second hand goods are wastes burned in primitive conditions.

Did BAN defame Intercon?  We know for a fact that BAN is in the defamation business.  It's what they do. They defame people every day... this was Strike 3.   Perhaps this time they defamed the wrong guy.

Again, I don't know what was in these two containers.  There are 3 possibilities... A) reuse, B) proper recycling, and C) improper recycling.  If, as BAN claims, 80% of all shipments are improper recycling, you feel justified being suspicious of such a shipment.  But China defines all 3 possibilities as "hazardous".  Otherwise, you'd naturally assume the containers had a 2/3 chance of being environmentally safe (A or B), and the sea containers would not become a HEADLINE.

BAN is still responsible for the misperception about 80% of USA shipments.  The smoking gun, I believe, is the pattern of repeating a completely ficticious statement to reporters, then linking the reporter's article as a source of the fictitious statement.  BAN has been doing this for years.  They are fetching us to "make a donation" on every page of their website, and why donate to fix something that's 85% working?

The only way the math works is if BAN implicitly nods, tacitly agrees with Sino EPA, that all 3 are "hazardous waste".  Perhaps that explains their "80% waste" statistic (nothing else does).  This is criminalization of the second hand market, and there is a LOT of money to be made in how that coin falls.

Whether or not the Hong Kong authority had the competence to declare Intercon's shipment as HW within China is debatable.  However, BAN announced that the shipment thought to be from Intercon did in fact contain hazardous waste.   The implication is that BAN was forced to bar Intercon from being certified by BAN, as if BAN was a judge and the exclusion was punishment for an act of guilt.  Since BAN forwarded the information, and A-B-C was a foregone conclusion, the act was both reckless and defamatory.  BAN did not know and could not have known based on the Hong Kong "second hand" definitions that Intercon's containers had "waste" in them.   But why do I care so much?

Why do I care?  Look at the other victims, the ones I am certain BAN has defamed.

Watch this week's rerun of the South Park episode, the parody of Russell Crowe.  It not only titillates defamation lawyers, it depicts Basel Action's war on recycling pretty well.  Crowe struts around picking fights with exotic people in exotic places, to bolster his own tough image.   In this case, Crowe has taken on Brian Brundage, a black belt, and let the defamation jujitsu commence.


In February of 2010, BAN made a similar announcement that Gordon Chiu of Advanced Global Technology had committed a similar "crime" by exporting "hazardous waste" which was found in Semarang, Indonesia.  The story appeared in the Boston Globe.  Gordon is a competitor of mine, we were both competing to buy used CRT monitors in working and repairable condition, legal under the Basel Convention, for refurbishment in the original contract manufacturing factories which originally assembled the computer monitors and televisions.   Those factories bought TVs and monitors from the USA for $5 and turned them into affordable $30 TV-monitor combos.  I actually sold many of these back to Egypt, using the refurbishing to skirt a ban on "second hand" computers instituted under Mubarak (to stop internet, they didn't care whether the equipment was fully functional or working either).

BAN announced publicly that Indonesian authorities had opened the containers and found "hazardous waste".  But I obtained a letter from the factory in Semarang which said that the Indonesian authorities had notified the factory that the containers held "hazardous waste" while they were still in transit, and that the Indonesian authority had been informed that the contents were hazardous, evidently by Basel Action Network (the letter says "by Basel", possibly it's Basel Secretariat, or possibly the owner of Fawlty Towers).

But read the BAN press release, follow the claim.  They skipped a step.  Unlike China, Indonesia never inspected or touched the containers.  They were sent back unopened to Boston.  But BAN's press release defamation campaign was still executed like clockwork, announcing (like the Intercon announcement) that the "hazardous waste" was discovered by Indonesians, who informed BAN.  That seems proof that whether the contents are A, B, or C is not pertinent to BAN either - if you are selling a solution for a lot of money, it doesn't matter.

I was consulted as an expert about the Boston - Indonesia containers.  I told USA federal officials that while all the parties were competitors of mine, and that I had no interest in the containers, that upon their return to the USA that they should determine whether the original USA seals were  on the containers.  If the containers were still sealed and had not been opened, then BAN's press release was wrong.  Indonesia had NOT "discovered" the contents to be hazardous waste, Indonesia had been informed such by BAN and returned the containers as a precaution.  BAN's announcement was clearly intended to harm to USA businesses involved, and BAN clearly mistated the communication in order to make the rejection look worse than it was.

"Scavenger children' at risk from toxic fumes produced by broken equipment"
The worst defamation, in my opinion, is versus the geeks overseas.

The headline above describes the business of Joseph Benson, a Nigerian businessman who purchased used televisions and computers in London for resale in Africa.   BAN had announced publicly, repeatedly, and still repeats, that 80% of the loads shipped to Africa are waste for recycling in primitive conditions, and that only 20% are working or repaired.  Based on BAN's information, UK authorities arrested Mr. Benson.  Based on BAN's statistics, Interpol wrote a report identifying African traders like Mr. Benson as "organized" (by virtue of their monetary and shipping knowledge) and "criminals" (based on BAN's statistic that 80% of the goods were not for reuse but for "primitive wire burning").

UNEP - the citation for BAN's press releases those years - found the African Import business to be imperfect, but 85% legitimate, after exhausting research... But BAN continues to run press releases citing UNEP as the source of the opposite finding.  Outrageous.  Absolutely outrageous.

BAN continues to defame people like Intercon, Advanced Global Technology, and Joseph Benson.  Just last week, BAN repeated the "statistic" about 80% waste.  BAN used sleight of hand to show CBS 60 Minutes computer monitors stacked in Hong Kong, then took the crew right past the factories which refurbish them, and down the road to Guiyu, where there were a lot of dirty recycling  operations and no computer monitors at all, anywhere (another question I asked from the crowd in the Alexandria VA Interpol-EPA conference, to speaker Jim Puckett.   He admitted to the crowd they did not find evidence of computer CRT monitors in Guiyu...  and shrugged.)

With the Intercon lawsuits, we shall finally see what BAN says about the statistic in court, under oath.

When BAN ran the press release (still available on their website, expect it to disappear soon) about the Indonesia shipment, they cited the UNEP as the source of information on exports.  Interestingly, between the time Benson was arrested, and the time Indonesia returned the containers to Boston, UNEP began a study actually looking at the trade of second-hand goods to Africa.  They inspected dozens of containers and met with Geeks of Color.  They found 85% reuse, and that thousands of jobs and millions of dollars were at stake in the African electronics import economy.  They found that most of the goods thrown away at the dumps like Agbogbloshie were the same as dumps here in the USA - a place where Africans throw away Africa waste.

I already knew what UNEP would find, based on mathematics (the cost of the containers and size of contents and value of scrap), film, interviews with African importers similar to Joseph Benson, and purchase orders describing what African buyers are looking for.  I lived in Africa and studied international trade, was a former DEP regulator, know Basel Convention, etc.  This story has been wrong for years and I've told BAN this for years.

Africa has had TV since the 1980s.  In shot after shot of films (Greenpeace, Fedele, others) very nice modern equipment is shown unloaded from the import trucks, and barren dumps with old equipment are shown receiving the older African generated waste.

What is sad to me is that it took a lawsuit from a wealthy American e-scrap Company, Intercon, to bring this to court.   BAN has been defaming people like Gordon and Joseph for a decade, using racial profiling and Chinese non-tariff barrier laws to create a massive impression of environmental harm in reuse and recycling.

Is the trade perfect?  No.  Not by any means.  I don't know what was in Intercon's containers.  I do know that Intercon was dealing with the most expensive hazardous waste, CRT glass, and that the number of containers BAN saw in Chicago was insignificant... it was almost proof that Intercon WASN'T exporting 80% of their waste.

I wish I could convince Gordon and Joseph to be Friend of the Court.   This McCarthy campaign has benefitted Basel Action Network, which makes a lot of money from their certification.  But their certification is rigged.   They defame R2, they defame the recycling practice.  Thank you, Mr. Brundage, for finally stepping up to Jim Puckett.

More than one person has asked me "why I defend Intercon", or "what will it mean (to me) if Intercon turns out to be guilty?"   Let me be clear, I have no idea whether Intercon shipped the container, and no idea whether the container that was shipped contained A, B, or C.  What I would testify is that Basel Action Network has a financial interest in curing a problem they have mis-stated (80% of ewaste is exported to primitive children to be burned, at the expense of USA jobs).  BAN further has demonstrated themselves to be completely knowledgeable of the distinctions between Chinese definitions of "second hand", between the Basel Convention Annex IX and the Basel "Ban Amendment" (not passed), the EPA, and their own invented definitions of removing parts prior to export.  They know the rules, but they roll the misinterpretation to their own benefit, to defame people based on their own photo profiling.

Happy sunset, Basel Action
They benefit from the confusion over these issues in the general marketplace, and they sell, for a lot of money, a "solution" to this problem - their certification.  If they are truly capable of making judgement, then why they would they defer the judgement to a Hong Kong official who uses "second hand" as the determinant?  And why did they say, in 2010, that Indonesian officials had opened containers and discovered hazardous waste, when all Indonesia did was reject containers based on BAN's identification of them as hazardous waste?   This is rotten.  It reeks.   (I'd actually feel better if Intercon said "YES, we exported those containers" - the confusion to me is the claims they didn't ship them).

But for Gordon, Joseph, Mowgli, and thousands of other geeks of color following the "tinkerer blessing" rather than the "resource curse" to feed their hungry families, SOMEONE has to bring this case, and I hope a judge makes it hurt, hurt bad, because Basel Action Network knows better than to repeat "80% waste" in press release after wasteful press release.  They are taking a finite amount of environmental donation out of other campaigns, money which could be saving elephants, and using it on a McCarthy witch hunt of repair and recycling companies, using racially charged photos to turn professional business men and women into childish characterless profiles. 
Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency sir, at long last? Have you left no sense of decency?  - Joseph Nye Welch, to Senator Joe McCarthy

Boston Globe Article:  2010 Basel Action Network Allegation

What are you buying when you pay for certification from Basel Action Network?  Protection.   Who are you protecting yourself from....?

Unfortunately, the poorest refurbishers, repairers, fixers and recyclers cannot afford that kind of protection, or the lawyers to protect the de-protected.

PS If you haven't actually seen South Park, here is the episode I refer to:

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