Sunlight sought for shady trade agreement

An agreement negotiated in secrecy among governments and industry representatives and known to the public only through leaked documents and the efforts of privacy activists may sound so 2008.

But unless concerned citizens and a federal court intervene, a number of intellectual property laws may get a very "retro" cast to them.

The Electronic Frontier Foundation and Public Knowledge have issued a call for some of that fabled new-adminstration transparency for the notorious Anti-Counterfeiting Trade Agreement (ACTA), asking that background documents on the agreement be released as per the Freedom of Information Act.

A FOIA request last year to the Office of the US Trade Representative (USTR) garnered just 159 pages of an estimated 1300. The groups ask for a stay pending the release of Attorney General-issued guidelines concerning the January 21 executive order issued regarding "a presumption in favor of disclosure" in US government dealings.

ACTA is a plurinational effort to develop a system of IP-related policies related to copyright, trademark infringement, and the like. It would detail cooperation between signatories, establish enforcement practices, and establish a legal framework for dealing with accused counterfeiters and pirates.

That's the theory, anyway, based on a four-page document smuggled to Wikileaks in May 2008. It's believed that at that time ACTA had been in the works for about four years, and at the time there were plans announced to finalize the document by July 2008 -- without any public review or scrutiny, and (since it is an Executive Agreement) without scrutiny from Congress.

Agreements can move slowly, though, when the number of countries involved is greater than two or three. Nations believed to be involved in ACTA are the US, the European Union, Switzerland, Japan, Australia, South Korea, New Zealand, Mexico, Jordan, Morocco, the United Arab Emirates, Singapore, and Canada.

When the July signing didn't happen, the previous administration pushed for ratification before it left office, and that ratification also didn't happen. Meanwhile, the EFF and Public Knowledge filed their first ACTA-related FOIA requests in June, and filed federal suit in October to force the USTR to respond to its repeated FOIA requests. Those 159 pages were the result. In Europe, the Foundation for a Free Information Infrastructure (FFII) filed a similar request and was rebuffed.

Why so secretive, trade negotiators? EFF International Policy Director Gwen Hinze says that the secrecy itself is part of the problem here. Not only are the negotiations shrouded in national security claims (and claims that disclosing information would reveal the USTR's deliberative processes), the US is asking that ACTA documents be kept from public scrutiny even after the agreement is ratified.

"We feel that the documents we've requested are documents citizens are entitled to see," says Hinze. "There's quite a bit of variety among governments as to how they're conducted negotiation. It would calm a lot of concerns if that discussion were addressed by more public disclosure and transparency. I certainly think it would be in the interest of consumers to have more opportunities for meaningful consultations about what's being negotiated."

The contents of that four-page document, however, were sufficient to cause those concerns worldwide. Though the document said that "appropriate flexibilities would be taken into consideration to accommodate the various basic legal systems in place in the potential ACTA members," it made it clear that the "overall objectives" of ACTA would be paramount -- above not only national laws but previous agreements such as TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights, the foundation for most international IP regulation now), or organizations such at the UN or the WTO.

And ACTA's new rules, if the scant information on it is any indication, could touch every Internet user. According to the EFF, industry groups consulted by ACTA negotiators (including the RIAA, the MPAA, and the Business Software Alliance) have requested requiring ISPs to engage in filtering of their customers' Internet communications for potentially copyright-infringing material, mandatory disclosure to such firms of personal information about alleged copyright infringers, and adoption of "Three Strikes" policies requiring ISPs to automatically terminate customers' Internet access upon a repeat allegation of copyright infringement.

That sort of ISP-level filtering would be in direct contravention of US law; info-disclosure requirements would run afoul of EU privacy laws. But that's not the only problem here, notes Hinze: "What we know about ACTA is relatively little; what we don't know is what ACTA will actually contain."

And don't think for a moment, by the way, that it's only you (the lowly consumer/citizen) who has such terms dictated to him if ACTA becomes actual. According to analysis at IPJustice.org, once the terms of the agreement are set, they're locked, and nations subsequently "invited" to comply and join can't change them.

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