ACSBlog: The Trouble with ACTA

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(cross-posted from the American Constitution Society blog)

 

The Anti Counterfeiting Trade Agreement, or ACTA, has received a fair bit of attention in the technology press and elsewhere, more so than might have been anticipated by a trade agreement. Its staunchest opponents warn that it threatens basic freedoms of speech and due process, and jeopardizes access to effective medicines around the world. Its most vehement supporters claim that without it, thousands of American jobs will succumb to the whims of pirates and counterfeiters. Academics have raised constitutional concerns about both its process and substance, while the President has offered it up as a tool to "crack down on practices that blatantly harm our businesses." At Public Knowledge, we remain gravely concerned about its potential effects on the way we access the Internet and use the media we buy.

So what is this ACTA? A simple trade agreement? A nefarious circumvention of domestic law and legislative procedure? Something in between? And what does it actually do? The fact that such basic questions about ACTA exist and persist points to one of its most prominent and central flaws: its lack of transparency. Only the basics are offered on the U.S. Trade Representative's (USTR) website-that it is to be a "plurilateral" trade agreement between a number of countries, designed to combat the infringement of intellectual property. More recently released "fact sheets" from the USTR provide outlines for the agreement's topics of discussion, including proposals on civil and criminal enforcement, border measures, and Internet issues. (The website also features letters of endorsement for the as-yet undisclosed agreement from proponents.). Importantly, ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval.

As for its actual substance, the text of ACTA remains, officially, a secret. Freedom of Information Act (FOIA) requests on the text itself or drafts thereof have been rebuffed with claims that disclosure would reveal "foreign government information" that was given to the U.S. under a confidentiality agreement. An early draft of a section of the "Internet chapter" was disclosed to a small number of industry representatives and a smaller number of civil society advocates (myself among the latter), but under a non-disclosure agreement that prevents me, or any of those other people, from discussing and debating the provisions we saw openly.

The rationale for this secrecy is not particularly clear. While draft text offered by other parties might fall into the category of foreign government information, it is becoming increasingly clear that foreign governments involved in the negotiations are interested in disclosing the text. (The European Parliament, for one, has passed a resolution calling for the text to be made public.). The other reason offered for this secrecy is that it is habitual in trade agreements not to disclose negotiating positions. Yet ACTA's status as a trade negotiation seems less based in the nature of its substance than in the convenience that this designation provides. Unlike other free trade agreements, ACTA deals solely with intellectual property (IP) -- a relatively specific (but broadly significant) aspect of law and policy -- and not with any questions of tariffs, export limitations, or any other of the other areas that might necessitate negotiating parties keeping their positions in private negotiations. To the contrary, ACTA appears to contain mostly requirements for the IP laws -- requirements not limited to the goals of enforcing copyrights and trademarks -- of participating countries. Those requirements include providing for statutory damages, various types of secondary infringement, and strongly suggest enforcement mechanisms like the controversial "graduated response" or "three-strikes" rules.

We know this because a series of leaks, which include what appear to be full text and country positions. Even as the USTR assures the public that the agreement won't (and as an executive agreement, certainly can't) change U.S. law, the leaked text includes provisions that require particular interpretations of U.S. law-much of it judicially-made case law subject to ongoing interpretation and evolution. For example, one part of the Internet chapter requires member countries to include doctrines of secondary liability for infringement, using definitions and terms that can easily be more expansive than what exists in current domestic law. While this may seem like a minor detail, the determinations of such minor details are the stuff that multi-billion dollar lawsuits like the Viacom/Google litigation are made of.

Even without legislative action by Congress, differences like these can have a real influence on the course of domestic law, as international agreements are used as persuasive authority in statutory interpretation. And the history of IP law and its continual expansion give us reason to be at least somewhat suspicious that ACTA might be a form of "policy laundering." This was the case with the Digital Millennium Copyright Act, the provisions of which, after failing to capture Congress' interest, were incorporated into the WIPO Internet Treaties and then brought back to the U.S. as international obligations. The fact that ACTA conveniently was raised as a trade issue-in a forum where negotiations are more closed-has raises suspicions that this history of opportunistic forum-shifting might be repeating itself.

But the potential effects of ACTA go beyond merely nudging interpretations of U.S. law in a new direction. Acceding to a new international agreement would hamper attempts to amend some of the flaws in our current law, locking us into a system that already has apparent flaws. ACTA's effects on the laws of other countries should also be taken into account, as we want to ensure that IP laws don't unduly hamper the free speech of other countries' citizens, or, to take a more commercial tack, that IP laws don't subject US technology companies, like the makers of digital recording devices or hosting websites, to overbroad copyright liability.

None of this is intended to stand in the way of ACTA's stated goals of reducing infringement and enforcing IP laws. But while we can all agree that we do want to reduce fraudulent goods and counterfeiting, ACTA's leaked text seems to indicate that it could do much more. We could cynically assume that this is the result of a hidden purpose -- if not by its negotiators, then by those seeking to influence them. Or more charitably, these substantial flaws are the result of a lack of open, public debate on these issues.

Which brings us back to the necessary first problem with ACTA that needs to be solved before the others can be addressed -- the issue of transparency. The lack of transparency not only prevents advocates from any side from engaging in an informed, intelligent debate on the issues, it leads to a process that necessarily has an artificially constrained view of the values at stake. An agreement as broad and far-reaching as ACTA seems to be needs to be subject to public scrutiny. If sunlight is the best disinfectant, than its lack may well encourage flaws to fester, threatening not just the health of the agreement, but also of our laws and policies.

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