David Bollier
On the Commons
December 2, 2009
A sweeping international treaty to regulate how knowledge and creativity may flow on the Internet is now being negotiated. Haven’t heard of it? Funny thing, that’s exactly what the backers of the treaty want. The film, music, publishing and information industries don’t want a public debate about the issues or an open debate in Congress. So they have been working hand-in-glove with the U.S. Trade Representative to move U.S. policymaking offshore and throw a dark cloak of secrecy around everything. The next stop: draconian penalties for anyone who is accused of violating copyright law.
Details about the treaty are murky. But the latest draft, according to a leak summarized on the Boing Boing website, would require:
That Internet Service Providers (ISPs) have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.
That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet — and hence to civic participation, health information, education, communications, and their means of earning a living — if one member is accused of copyright infringement, without access to a trial or counsel.
That the whole world must adopt US-style “notice-and-takedown” rules that require ISPs to remove any material that is accused — again, without evidence or trial — of infringing copyright. This has proved a disaster in the U.S. and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.
Mandatory prohibitions on breaking DRM [Digital Rights Management systems], even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM).
Who would have guessed that such nasty stuff was embedded in a treaty called the “Anti-Counterfeiting Trade Agreement (ACTA)”? That title was presumably meant to reassure people that it’s a non-controversial measure. But fighting counterfeits seems to be just the cover story. The real goal is to win a backdoor expansion of copyright law, much stronger enforcement powers and greater corporate control of the Internet — all without having to go through that pesky process known as democracy.
If the first subterfuge was the misleading title, the second subterfuge was to call ACTA a “trade agreement” rather than a multilateral intellectual property treaty. A trade agreement can be implemented by the Executive Branch on its own, and does not require congressional approval. An intellectual property treaty would require a congressional vote.
This could turn out to be a fatal legal maneuver, Eddan Katz of the Electronic Frontier Foundation points out in a recent blog post, because an executive agreement like ACTA must “color within the lines of U.S. law.” Yet the U.S. Trade Representative has been quoted as saying that the treatment will “stick as closely to U.S. law as possible.”
Oh, that’s reassuring. As Katz asks: “How can the USTR negotiate an international agreement that sets new global IP enforcement norms requiring changes to U.S. law and policy as an Executive Agreement, without the knowledge or involvement of Congress?” (For more on this point, see Katz’s law review article in the Yale Journal of International Law .)
The bad faith only gets worse. Beyond the misleading title and backdoor legal maneuvers is Very Deep Secrecy. Or more accurately, selective Very Deep Secrecy. Key Washington insiders and corporate players have been granted full access to the draft treaty — but we the little people have been excluded. Wanna read the draft? You can’t. The official rationale is that such disclosures would jeopardize national security. Seriously.
When I blogged about the so-called ACTA treaty — Anti-Counterfeiting Trade Agreement — in March 2009, Public Knowledge and others were trying to open up the treaty process through Freedom of Information Act requests and public pressure. As criticism mounted, the U.S. Trade Representative in September came up with an ingenious “solution” — let a handful of public-interest advocates read the ACTA draft — but only after signing a a non-disclosure agreement (NDA) that prohibits them from publicly discussing it.
NDAs are a standard tool among Silicon Valley tech companies to prevent proprietary secrets from circulating. Notwithstanding President Obama’s other laudable initiatives in open government, this NDA approach to citizen participation is worthy of Dick Cheney or George W. Bush.
Wait, there’s more! Even this form of restricted access is selectively granted. The U.S. Trade Representative (USTR) decided to pick and choose who would be invited to sign an NDA and thus be allowed to read the document (but not talk about it publicly).
This Orwellian farce prompted James Love of Knowledge Ecology International — a long-time critic of ACTA and the USTR — to prepare a petition that has garnered thousands of signatories. The petition reads in part:
The opportunity to see the ACTA documents under the NDA was offered to a large number of business interests, but very few public interest or consumer groups, and there were no opportunities for academic experts or the general public to review the documents.
USTR officials have indicated that this policy of access by invitation and NDA fully addresses the legitimate demands for more transparency of the negotiation, and it is being considered as a model for the future.
We are opposed to this approach because it creates a small special class of citizens who have rights superior to the majority of the population, and because it gives the government too much discretion in deciding who can monitor and criticize its operations. We have no confidence in this new approach.
Some of the people who have signed such NDAs are grateful for the chance to have had special access to some information, but they also feel constrained by the inability to discuss the contents of the documents, and are confident that nothing they have seen constitutes information that in any way would prejudice the national security of the United States if it were in fact disclosed.
In our opinion, the ACTA negotiations would not exist without the support and engagement of the U.S. government, and they are too important to continue under such questionable practices.
The only rationale for keeping the proposed ACTA text from the public is to suppress criticism and critical thinking about the norms that are being proposed. It is Orwellian and an insult to our intelligence to claim that the secrecy of the ACTA text has anything to do with national security concerns, as the term is commonly understood.
A secret process of arbitrary access, conditioned upon signing non-disclosure agreements to block public debate, does not enhance openness and transparency, and does not inspire respect for the norms that will eventually emerge.
Public Knowledge also prepared a petition as well, which has been signed by the American Association of Law Libraries, Electronic Frontier Foundation, Electronic Privacy Information Center, Future of Music Coalition, Internet Archive and Sunlight Foundation, among others.
Even some Senators are getting upset about the USTR’s high-handed approach to democracy. Senators Sherrod Brown and Bernie Sanders have sent a letter to the USTR asking that the ACTA text be made public:
ACTA involves dozens if not hundreds of substantive aspects of intellectual property law and its enforcement, including those that have nothing to do with counterfeiting. . . . There are concerns about the impact of ACTA on the privacy and civil rights of individuals, on the supply of products under the first sale doctrine, on the markets for legitimate generic medicines, and on consumers and innovation in general.
The Motion Picture Association of America has no qualms about the secrecy. In its own letter to the USTR, the MPAA dismissed such concerns with a wave of the hand: “Outcries on the lack of transparency in the ACTA negotiations are a distraction. They distract from the substance and the ambition of the ACTA…”
You heard right: democratic process is a “distraction.” At a time when the U.S. is trying to rehabilitate its international image and show others how democracy works, the ACTA treaty is not a very good advertisement for the “American way.”
At this point, it’s unclear how the whole misbegotten mess will play out, but there is no doubt that the key players, including the U.S. Government, are trying to use international law to neuter the Internet, subvert the innovation and participation that open platforms enable, and violate people’s privacy and due process rights — all of this without meaningful public dialogue.
I don’t think the USTR or President Obama really want to go there. It would ignite a political and cultural explosion. If they are too frightened to have an open, honest debate at the draft proposal stage — it they are too frightened of the citizenry — imagine the political blowback that will occur if the treaty actually becomes enforceable law. Let’s face it: A public reckoning will have to occur at some point, and the sooner the USTR backs away from the ledge and opens up its deliberations, the better it will be for it, President Obama and the rest of us.
For more about ACTA, see analyses by Public Knowledge, Michael Geist of University of Ottawa, and the Electronic Frontier Foundation.
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