US Wrestles With Transparency As Europeans Urge Release Of ACTA Texts

The parliaments of Sweden and the European Union are urging the European Union to make public all documentation related to a secretive global anti-counterfeiting treaty, while the United States has claimed the papers are a matter of national security and therefore a state secret. But now the US has decided to undertake a review of its transparency.

The Office of the United States Trade Representative has said that the agency will undertake a thorough review of its transparency to the public, in accordance with the new Obama administration’s assertion that a “democracy requires accountability” and “in the face of doubt, openness prevails” in his government. The timeline for the review has not been set, according to a USTR spokesperson.

The review was first announced by advocacy group Knowledge Ecology International, which met with USTR and other civil society groups on 19 March to discuss the openness issue. A follow-up meeting with civil society will be held in about a month to talk more specifically about possible changes, according to Eddan Katz of the Electronic Frontier Foundation, who participated in the 19 March meeting.

The US government on 10 March sent a letter to KEI, in response to a Freedom of Information Act (FOIA) request on the anti-counterfeiting treaty denying the group access to the documents it sought.

The Anti-Counterfeiting Trade Agreement (ACTA) is still under negotiation among a number of nations. Its proponents say it is needed to counter the rising threat from the proliferation of intellectual property rights infringement which they say is potentially damaging to the sustainability of the global economy.

But the secrecy of the treaty as well as concern over what it might contain has spurred critique of the treaty by civil society groups, those in the technology industry, and some government representatives. (IPW, Enforcement, 20 December 2008; 14 December 2008; 3 October 2008).

USTR seemed determine to maintain this secrecy, however, stating in its 10 March letter to KEI [pdf] that the documents “are being withheld” as the information “is properly classified in the interest of national security.”

But the letter was sent prior to a meeting between USTR officials and KEI, EFF and fellow advocacy groups Essential Action and the Consumers Union at which the USTR promised it would be undertaking a full review of its policies with a view towards transparency.

It was also sent before a 19 March memorandum [pdf] from the US Attorney General to the heads of executive departments and agencies – in response to Obama’s declaration that openness prevails – that states: “an agency should not withhold information simply because it may do so legally.” The Justice Department, it said, will defend a denial of a FOIA request only if there is reason that disclosure would harm an interest protected by statutory exemptions or if it is prohibited by law.

This represents a departure from the closed-lips policies of the Bush years, when reasons to deny a FOIA request were much broader, including “institutional, commercial, and personal privacy interests” that might be affected by disclosure.

These parallel processes of the transparency review and the openness to FOIA requests, said Katz, may indicate a shift in direction. “There’s a lot of opportunity for change in the way that things have gone on ACTA and on trade policy,” he added, especially with new USTR Ron Kirk now sworn in.

“As the source of innovation and creative production in the US widens, and more innovative companies are emerging as reliable parts of the economy, it’s wise at this moment of transition to pay attention to what this broad segment has to say,” Katz said.

Transparency Review to “Maximise” Available Information

Kirk, in his opening statement as the new USTR [pdf], asserted that he and the president “believe fundamentally that fair, open and transparent rules-based trade can act as catalyst to benefit working families and business, large and small, throughout this country.”

The Office of Intergovernmental Relations at USTR with the offices of the General Counsel and Congressional Affairs will be coordinating the review internally, USTR Deputy Assistant for Public Affairs Debbie Mesloh told Intellectual Property Watch.

The goal, she said, is the “maximise the information we can make available to the public without compromising our ability to negotiate agreements that maximise the gains for Americans to benefit from international trade.”

There is currently no set timeline for the review, but Mesloh said the USTR would “seek input from across the community of people interested in or who could be affected by these issues.”

The relationship between ACTA’s designation as a state secret and the new transparency review remained somewhat unclear.

“The first step is an assessment of how the agency acquires information from the public and transmits information to the public,” she said, adding they would start with a review of the USTR’s advisory committees and its informal consultation practices.

EU, Swedish Parliaments Call For EU Openness on ACTA

The Swedish Parliament “urges the government… to investigate the possibility to revoke the mandate of the [European] Commission to negotiate about ACTA in secrecy,” said a publication of the request available on the Swedish Green Party’s website here.

“This matter is urgent and a decision should be made before the Council [of EU member governments] reaches a political agreement on ACTA,” the statement continued. “Information made available so far clearly demonstrates that ACTA will have far-reaching consequences in several controversial areas of law.” Consequences could extend to internet access providers, border control, and even private citizens, they said.

“Parliamentary supervision is a prerequisite,” the statement continued, “or the agreement would set a precedent for secret law making, in violation of the principle that all law making in the EU must be as transparent as possible.”

The European Parliament, too, is calling for more transparency on the treaty negotiations, as a new text adopted by the body called for the European Commission to “immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.” The statement comes as a part of a broader document on public access to European Parliament, Council and Commission documents.

The European Parliament seemed to hold a similar view to the Swedish Parliament, saying on 11 March that “no legislative documents should be kept secret.”

Civil Society Keeps Up Pressure

KEI made specific recommendations on how USTR could improve transparency, including disclosure of all negotiating texts, policy papers, and meeting agendas as well as accreditation of civil society groups to attend meetings and the institution of public consultation periods.

Katz said “by opening up the process you’ll see participation from different kinds of companies,” such as search engines, internet service providers, small businesses, software manufacturers and social networks.

“By opening up, we’ll see a more balanced trade policy,” he added. “USTR has in the past been pursuing distorted exportation of US copyright and IP policy” that will harm the emerging American innovative sector when it must face stricter laws on operations abroad than at home.

The US has, Katz said, been exporting exclusive rights but not the flexibility and balance that facilitated the emergence of leading thinkers in new innovative spaces such as the internet. He urged USTR not to pursue a course that represents only a small segment of interests of multinational companies that are served best by stricter enforcement and the existing exercise of power.

About a dozen NGOs – including librarian, civil liberties and consumer groups – weighed in on the matter Thursday, expressing support for the new FOIA guidelines and hope for the review.

“I am cautiously optimistic,” said Lawrence Lessig, a law professor at Stanford University, according to a 26 March KEI blog post.

“As Attorney General Holder’s recent memorandum on FOIA indicates, information should not be withheld merely because it can be,” Sherwin Siy of Public Knowledge, adding, “there must be a compelling reason – beyond a mere deference to habit or protocol – to hide the workings of government from the public.”

“If Obama trade officials follow through, it will make the government more accountable, give the public a greater voice, and connect policy with campaign promises,” said Judit Rius Sanjuan of KEI.

Present at the 19 March meeting from USTR, according to KEI’s blog, were Assistants Daniel Sepulveda for Congressional Affairs and Stanford McCoy for Intellectual Property and Innovation as well as General Counsel Timothy Reif and Chief Counsel for Legal Affairs Catherine Field.