Politics and Law

Last September, the Bush administration defended the unusual secrecy over an anti-counterfeiting treaty being negotiated by the U.S. government, which some liberal groups worry could criminalize some peer-to-peer file sharing that infringes copyrights.

Now President Obama's White House has tightened the cloak of government secrecy still further, saying in a letter this week that a discussion draft of the Anti-Counterfeiting Trade Agreement and related materials are "classified in the interest of national security pursuant to Executive Order 12958."

The 1995 Executive Order 12958 allows material to be classified only if disclosure would do "damage to the national security and the original classification authority is able to identify or describe the damage."

Jamie Love, director of the nonprofit group Knowledge Ecology International, filed the Freedom of Information Act request that resulted in this week's denial from the White House. The denial letter (PDF) was sent to Love on Tuesday by Carmen Suro-Bredie, chief FOIA officer in the White House's Office of the U.S. Trade Representative.

Love had written in his original request on January 31--submitted soon after Obama's inauguration--that the documents "are being widely circulated to corporate lobbyists in Europe, Japan, and the U.S. There is no reason for them to be secret from the American public."

The White House appears to be continuing the secretive policy of the Bush administration, which wrote to the Electronic Frontier Foundation (PDF) on January 16 that out of 806 pages related to the treaty, all but 10 were "classified in the interest of national security pursuant to Executive Order 12958."

In one of his first acts as president, Obama signed a memo saying FOIA "should be administered with a clear presumption: In the face of doubt, openness prevails. The government should not keep information confidential merely because public officials might be embarrassed by disclosure."

Love's group believes that the U.S. and Japan want the treaty to say that willful trademark and copyright infringement on a commercial scale must be subject to criminal sanctions, including infringement that has "no direct or indirect motivation of financial gain."

A June 2008 memo (PDF) from the International Chamber of Commerce, signed by pro-copyright groups, says: "intellectual property theft is no less a crime than physical property theft. An effective ACTA should therefore establish clear and transparent standards for the calculation and imposition of effective criminal penalties for IP theft that...apply to both online and off-line IP transactions." Similarly, the U.S. Chamber of Commerce has called for "criminal penalties for IP crimes, including online infringements."

Last fall, two senators--Patrick Leahy (D-Vt.) and Arlen Specter (R-Penn.)--known for their support of stringent intellectual property laws, expressed concern that the ACTA could be too far-reaching.

Two senators known for their support of stringent intellectual property enforcement expressed concern on Thursday that an anti-counterfeiting treaty currently being drafted may be too far-reaching.

Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Penn.) sent a letter on Thursday to U.S. Trade Representative Susan Schwab saying that the Anti-Counterfeiting Trade Agreement currently under negotiation "could limit Congress's ability to make appropriate refinements to intellectual property law in the future."

The speed of the negotiations and their lack of transparency compound the risk that the treaty will unnecessarily constrain Congress, the letter says.

Leahy and Specter authored the recently passed Prioritizing Resources and Organization for Intellectual Property Act. Before the legislation was approved by Congress, it was stripped of a controversial provision opposed by the Bush administration that would have given the Justice Department authority to pursue civil copyright infringement cases.

"We are disappointed that the Administration has been resistant to this effort and has opposed additional enforcement authority, such as civil enforcement in copyright cases where the violation rises to the level of criminal activity," the letter says.

As chair and ranking member of the Senate Judiciary Committee, the two senators also support funding to assist foreign countries in combating U.S. intellectual property infringement.

Even though they applaud the USTR's efforts to bolster intellectual property protection, the senators said, they were concerned "about the breadth of the issues" the trade agreement could cover "and the specificity with which it could be written."

The USTR tried to allay concerns over the treaty at a public forum last month that gave some indication of what would be included in the agreement. Representatives of the USTR emphasized that the treaty would focus on the enforcement of policies already in place, rather than creating new, substantive policy agreements with other countries.

However, many at the forum still expressed their misgivings over the agreement. A representative from Google said the treaty should not include any provisions regarding Internet policy, since U.S. Internet policy is still in its nascent stages. The senators' letter mirrored those sentiments.

"Regarding the potential breadth of ACTA, we strongly urge you not to permit the agreement to address issues of liability for service providers or technological protection measures," it said. "The contours of the law and liability exposure in these areas continue to be debated in the courts."

WASHINGTON--An anti-counterfeiting treaty being negotiated by the U.S. government has come under criticism from liberal groups for being negotiated "in secret" and for potentially criminalizing peer-to-peer file sharing.

On Monday, the Bush administration responded by holding a public event designed to allay fears about the so-called Anti-Counterfeiting Trade Agreement, a multilateral deal that the federal government hopes to have finished by the end of the year.

A draft of the agreement has not been released publicly, said Stanford McCoy, assistant U.S. Trade Representative (USTR) for intellectual property and innovation, because none exists yet. The United States has not even begun discussing with other countries involved certain potential elements of the agreement, he said, such as the sections that deal with the Internet.

"We have a lot of work to do," McCoy said.

The lack of public disclosure of ACTA negotiations has led two public interest groups, the Electronic Frontier Foundation and Public Knowledge, to file a Freedom of Information Act lawsuit to gain access to the contents of the agreement. At Monday's forum, those groups and representatives of Internet companies including Google argued there was a need for more public discussion and disclosure.

The ACTA Initiative, launched in October 2007, aims to build upon existing agreements to provide a legal framework for combating intellectual property rights infringement, particularly in the context of piracy and counterfeiting.

"We're doing something we haven't done in the many previous bilateral trade agreements," McCoy said. "We're weaving together commitments on the legal framework with commitments on enforcement practices."

He pointed out it is common protocol for his office to refrain from publicly discussing trade agreements under negotiation because of confidentiality agreements with trade partners.

Still, he said, "we have a clear and transparent record," noting that his office has completed about a dozen recent free trade agreements that include terms for intellectual property rights enforcement.

Consumer privacy concerns
McCoy said ACTA would focus on border measures and enforcement practices, rather than creating new regulation standards.

"We have worked out a common vision on all the substantive issues," McCoy said, citing the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, established by the World Trade Organization.

While the USTR will not release a draft of ACTA, some of the elements of the agreement that McCoy laid out mirrored an ACTA discussion paper (PDF) leaked onto the Internet, including giving law enforcement the authority to take action against intellectual property infringers without a complaint from the rights holders. (That's already the case under U.S. law, and has been for many years.)

One question that advocacy groups raised was whether U.S. citizens would be subject to enforcement of regulations not established under domestic law. Questioners at the public forum asked if U.S. citizens would be forced to turn over their laptops or music players for inspections at borders or subject to other forms of mandatory data disclosure.

"Can you assure those proposals in direct conflict with U.S. law will be rejected?" asked Eddan Katz of EFF.

McCoy answered that ACTA will focus on large-scale intellectual property infringement and "in no way requires search of personal computers or music players."

Impact on Internet companies
Representatives of Internet companies sought further clarification on the terms of the agreement that would impact their sector.

Johanna Shelton, a legislative strategist for Google, asked whether the agreement would include provisions specifying safe harbor terms for Internet companies. She also asked whether it would be consistent with U.S. law with respect to temporary copies of content.

Internet provisions should be "beyond the scope" of the agreement, Shelton said.

"We have not had any in-depth discussions about Internet-related provisions," McCoy said, though the U.S. government has had internal discussions about it. "Certainly our intention is to have an agreement fully respectful of U.S. law."

Attorney Jonathan Band, whose clients include Internet companies, said it was imperative for his industry to see a draft of the agreement because "a word here, a word there can make a difference."

He said various European regulations could be enforced to work against U.S. companies.

"We do understand some countries may go beyond the requirements in ways that are not helpful," to the United States, McCoy said, "That's a concern we have to address on a case by case, bilateral basis."

The International Intellectual Property Alliance sent a statement to reporters on Monday saying:

In the ACTA, the U.S. and other interested governments seek an agreement with provisions in three main areas: international cooperation, enforcement practices, and the legal framework for the enforcement of intellectual property rights. Given the serious global problem of copyright piracy and the need to improve effective enforcement, IIPA endorses this important initiative and looks forward to an agreement that contains high standards agreed by all the signatories. Achieving an agreement that enhances international coordination, promotes more effective enforcement, and shares ideas on best practices are essential components in the struggle against a piracy problem that knows no borders.

Participants in ACTA negotiations include the United States, Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Sinagpore, and Switzerland--even though Mexico, Korea, Canada, and some members of the EU are on the U.S.T.R.'s 301 Watch List, which monitors countries inadequately enforcing intellectual property regulations.

Representatives of the countries involved in the negotiations will meet next to discuss ACTA in Tokyo this October.

CNET's Declan McCullagh contributed to this report