By Kaitlin Mara
Perhaps no topic over the past year has been cause for more uneasy speculation within the intellectual property community than the Anti-Counterfeiting Trade Agreement (ACTA), primarily because the negotiating process for this treaty has been behind tightly closed doors. Now two US-based public interest organisations have filed suit against the US trade office in charge of the negotiations, in hopes of being able to gain access to the records currently under lock and key.

ACTA was announced in October 2007 as a partnership to combat counterfeiting and piracy that the US and several of its trading partners view as critical threats to their businesses and the cause of billions of dollars in lost revenue annually.

But a lack of transparency in the negotiating process plus a discussion paper on the agreement leaked in the spring of 2008 have caused alarm among consumer rights groups. Attempts to gain access to negotiating documents have so far proved unfruitful. The leaked text includes provisions for the criminalisation of intellectual property infringement, including “internet piracy… without motivation for financial gain” as well as provisions for IP enforcement by customs authorities.

Now, the Electronic Frontier Foundation (EFF), a California non-profit focussing on the defence of civil liberties in the digital age, and Public Knowledge, a Washington, DC non-profit engaged in consumer advocacy on issues of intellectual property law and technology have filed suit against the USTR to try and obtain the information.

The claim [pdf] states that the USTR has “wrongfully withheld agency records” requested under the Freedom of Information Act (FOIA) and has “failed to comply with the statutory time limit for the processing” of such requests.

“ACTA raises serious concerns for citizens’ civil liberties and privacy rights,” Gwen Hinze, EFF international policy director, said in a press release on the suit. “This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP [internet service provider].” Hinze further that people “need to see the full text of ACTA now” but that the USTR “is keeping us in the dark.”

USTR Claims Inclusive Process

USTR spokesperson Scott Elmore told Intellectual Property Watch that the agency is “working hard to keep the public informed” and that it has engaged in “extensive public consultation regarding the ACTA.” He added that USTR has made “its senior officials available to brief numerous stakeholders on ACTA, both industry and non-governmental organisations, including groups involved in the recent complaint.”

Art Brodsky, communications director at Public Knowledge, told Intellectual Property Watch that while the USTR had indeed held briefings with his and other NGOs, the meetings were “asymmetrical.” It was clear that one side knew a great deal more about what was going on, he explained, and “they are willing to listen but not to say what they are doing or show us any of the language” being proposed for the ACTA agreement.

If USTR refuses to show what it is doing in private, he added, these briefings are little more than lip service, as they do not provide usable information.

Elmore said that the USTR has organised a public meeting to “consult with interested parties on the initiative” which will be held Monday, 22 September in Washington, DC.

Comments are being submitted in advance of the public meeting, including from the EFF [pdf], Essential Action, and Google. Google expressed concern over the scope of the agreement—asserting that companies such as Google and ISPs in general are the “wrong target” for the imposition of potential liability or obligations and that to do so is “potentially contrary to US law, and in any event not appropriate subject matter for an Executive agreement not submitted to the Congress.” The company objected in particular to the inclusion of language on technological protection measures, statutory damages, or ISP safe harbours in an ACTA treaty.

The company emphasised the importance of transparency in the negotiating process to allow for meaningful consultation with key stakeholders, particularly in the internet intermediary sector, and – while expressing the view that internet issues should remain outside of ACTA in general – stated particularly strong disapproval of any legislation offering protection to temporary copies or on technological protection measures.

FOIA Request and Delays

EFF and Public Knowledge had submitted a Freedom of Information Act (FOIA) request in June of this year asking for all records related to USTR meetings with industry associations, international bodies, other US government agencies, and representatives of other governments and the European Commission concerning ACTA.

According to the complaint, USTR employees David Apol and Elizabeth Glacer asked that the scope of the request be narrowed; but neither NGO has had any communication from USTR after a revised request was send at the end of July.

USTR was unable to provide comment on this silence by deadline. On the delay in providing documents, Elmore told Intellectual Property Watch that “USTR is aware of the FOIA request” submitted by the two organisations and that it was one of “nine intellectual property rights-related FOIA requests submitted during the month of June 2008.” USTR has, he said, been “working diligently to answer all of the requests.”

The Freedom of Information Act in the United States requires all federal government agencies, of which USTR is one, to provide certain information to the pubic, either online or at the request of an individual or organisation. The FOIA also has provisions for expedited provision of that information when there is an “urgency to inform the public concerning actual or alleged federal government activity” – an urgency that EFF and Public Knowledge assert exists in this case, as the USTR previously indicated [pdf] the ACTA negotiations would be completed before the end of this year.

Separately, however, a developed country official told Intellectual Property Watch this week that the agreement does not appear to be on track for completion in 2008 (IPW, Enforcement, 17 September 2008).

Earlier this week, more than 100 public interest organisations from around the world (including EFF and Public Knowledge) joined together to demand the release of ACTA’s text, which they fear may require internet service providers to monitor all internet communications; interfere with fair use of copyrighted materials; criminalise peer-to-peer electronic file sharing; and undermine access to low-cost generic medicines.

The ACTA is being negotiated by Australia, Canada, European Union, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, United States, and the United Arab Emirates.

Kaitlin Mara may be reached at kmara@ip-watch.ch.