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Reasons for (Cautious) Optimism on ACTA

March 17, 2009 ,

Is ACTA a matter of national security? No. Is “national security” a reason to withhold documents for a FOIA request? Well, maybe. Is it a good enough reason to withhold text of the draft agreement? I don't think so.

Let me now attempt to make sense of those various, yet (I will argue) consistent statements.

ACTA is a proposed international agreement on aspects of IP enforcement, which could have broad effects on how signing countries treat copyright and trademark infringement. What those effects are and how seriously they impact users and the Internet remains to be seen, since the agreement's text and anything more than its broadest objectives have not been disclosed to the public by the United States Trade Representative (USTR).

This seemed problematic, to say the least, to a number of different groups, and PK and EFF thus filed a Freedom of Information Act (FOIA) request for a variety of documents relating to ACTA, it's provisions, and its potential implementation last year. After receiving nothing in response, we filed suit to compel disclosure of those documents. A number were turned over, and a (larger) number withheld under various claimed exemptions to FOIA. As this happened, the president issued a memo stating that all requests should be evaluated with a presumption of disclosure. In light of this, our groups decided in January to suspend the litigation pending new guidelines to the USTR from the Attorney General.

Meanwhile, a variety of ACTA documents not disclosed via FOIA have since been leaked, including several documents containing draft language. Knowledge Ecology International, another staunch ally in seeking transparency for ACTA, filed its own FOIA request on January 31 for certain specific documents, including draft texts of the agreement. This request was met with a denial just last week, via a letter noting that the documents were being withheld as “classified in the interest of national security pursuant to Executive Order 12598.”

This looks decidedly odd, but the wording of EO 12598 makes the claim a little less strange than it might first appear.

One of the several grounds upon which a government agency can withhold FOIA documents is on the grounds that the information is properly classified under an executive order. One such order under which documents can be classified is EO 12598. In it, “national security” is defined as “national defense or foreign relations of the United States,” and among the various types of information that can be classified is “foreign government information,” which is information that a foreign government gives to the US, or creates jointly with the US, with the understanding that it remain confidential. A number of ACTA documents could arguably fall under this definition.

Does this mean I think that the documents were properly withheld? Not necessarily. Anyone who has dealt with lawyers knows that just because something is arguably so doesn't make it so. And there are a number of grounds upon which to challenge the withholdings when litigation continues.

For now, the new FOIA guidelines that promise more transparency have yet to be issued by Attorney General Holder. While there's certainly some cause for caution, looking at the less-than-uniform treatment of some FOIA actions since January, there's still potential that new guidelines will in fact mean more transparency, and not remain rhetoric.