Europe says 'No' again to ACTA secrecy

This morning from Brussels, the European Parliament issued a
formal declaration - its second official legal statement of the
season - calling upon participants in negotiations for the global
Anti-Counterfeiting Trade Agreement to share the status of their
proceedings with the public at large.  At issue is whether
governments can decree that Internet Service Providers (most of
which are private businesses) keep track of IP addresses that
copyright holders believe are involved in infringement and
unauthorized distribution, without officially notifying their
citizens they're about to do so.

In fact, the very secrecy of the negotiations themselves could
be in violation of an essential tenet of European law, called the
principal of subsidiarity.  That principal mandates
that no law can be passed without it first meeting the test of
whether it infringes upon the rights of citizens, and that those
rights supersede the needs of government.  Keeping the
negotiations secret implies that no such test ever takes place.

The declaration itself is short and straightforward. 
Paragraph 3 in its entirety, for example, states that the European
Parliament "takes the view that the proposed agreement should not
force limitations upon judicial due process or weaken fundamental
rights such as freedom of expression and the right to privacy."

Last month, Europe's Commissioner for Trade, Karel de Gucht
(Belgium), trained not only a spotlight but a heat lamp on another
of the continent's key concerns: that new laws mandated by the ACTA
would force European nations to protect intellectual property
rights that they have yet to formally recognize or pronounce in
their own laws.

"While ACTA aims to establish effective enforcement standards
for existing intellectual property rights," reads a joint
declaration issued August 22 from Washington, and co-signed by
Comm. de Gucht, "it is not intended to include new intellectual
property rights or to enlarge or diminish existing intellectual
property rights."  De Gucht was in Washington at the
invitation of the United States, for a conference intended to
address certain unstated concerns negotiating members (also
including Australia, Canada, Japan, Korea, Mexico, Morocco, New
Zealand, Singapore, and Switzerland) may have about the US
position.

De Gucht did not have to say so expressly, but his statement
implied what most everyone else following the ACTA already knows:
that it's the US that wants to keep a lid on talks.  The
outcome of those talks, although also not stated expressly, can be
inferred from Paragraph 1 of this morning's declaration:  The
European Parliament "takes the view that the proposed agreement
should not indirectly impose harmonisation of EU copyright, patent
or trademark law, and that the principle of subsidiarity should be
respected."

By "harmonisation" (spelled with an "s" rather than a "z" in
British English), the EP here refers to making European copyright
law more compatible with American and Asian law.  That's a
process that the EP would prefer happen organically, through
careful deliberation and debate, rather than a sudden and
inescapable need to comply with directives enforced upon it by a
foreign country.

Last April, a month after
the EP passed a resolution compelling member nations in the
ACTA negotiations to produce at least a status report,
a redacted version of the draft treaty was released.  That
version appeared to validate previously leaked copies of the draft
treaty, including versions that would have held ISPs jointly liable
for copyright infringements, when it appears that those ISPs had
not taken preventative measures approved by rights holders, such as
movie studios.  The April draft uses punctuation, such as
[square brackets], to make clear that these more controversial
provisions remain optional, and have yet to be adopted by a
majority of negotiators.

On Monday, a Texas-based consulting firm whose connection to the
negotiations, if it exists at all, is questionable, leaked what
appears to be a list of extensive revisions (PDF
available here) to the April draft, completed during the August
meeting attended by Comm. de Gucht.  If verified, the latest
leak does indicate complete replacement of many of the more
controversial paragraphs from the April draft.

However, the replacement text - again, if the leak is genuine -
would, contrary to reports that accompanied the leak itself, compel
member countries to let rights holders request "the information of
the relevant subscriber" in conjunction with their own
investigations, and to give those investigations legal precedence
and protection.  Although the active verb here is "may" -
implying perhaps a softening of the rhetoric - the text of what's
now being called Section 4, Article 2.18, Paragraph 4 clearly
states such investigations would have access to personal
information.  That means not just the IP address of the
computers involved, which is what earlier drafts implied, but
names, addresses, phone numbers - personally identifiable
data (PID).

It isn't that EU member nations are necessarily opposed to
holding ISPs jointly accountable.  Beginning last April and
proceeding through June, the UK rolled out provisions for its
recently passed Digital Economy Bill, one measure of which
prompts British ISPs to maintain records of which IP addresses
rights holders suspect as being involved in infringement. 
However,
as the British Law Society Gazette reported this
morning, Ofcom - the UK's communications industry regulator,
and counterpart to the US' FCC - is presently considering
exceptions to the new law that would exempt the country's largest
ISPs - those with 400,000 subscribers or more - from having to keep
those records.

This article originally appeared in Net1News.

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