Secretive international talks about how to curb counterfeiting and Internet piracy are under way in Mexico this week. But instead of focusing on the subject at hand, negotiators will spend much of their time discussing transparency, or rather the lack of it in the whole process.
Negotiators from the U.S., the E.U. and nine other countries aim to draft an anticounterfeiting trade agreement (ACTA) by the end of this year.
They have been meeting behind closed doors over the past two years, and although the treaty they are crafting will affect almost every single user of the Internet, none of the draft text has been made public. Only firms that have signed stringent nondisclosure agreements have been allowed to see it.
But leaks about the draft text emerged late last year, revealing that it goes way beyond fighting counterfeiting. Proposals under discussion include severing the Internet connection of illegal file-sharers and making ISPs (Internet service providers) liable for copyright infringements by their customers.
If adopted in the final text, the liability clause would open up ISPs and telecom operators to lawsuits from owners of content, such as music and movies, and would force them to snoop on their subscribers in order to protect themselves from prosecution.
Transparency is one of four items on the agenda of this week's meeting in Mexico, said Velasco Martins, a senior European Commission civil servant attending the meeting, during a telephone interview. The other three subjects are civil enforcement, customs and the Internet.
"It is understandable that there are rumors and concerns about these discussions. Most other parties involved in the meeting are also aware of people's concerns. We are looking at them," he said.
He declined to comment further about the talks, but said a statement would be issued after they conclude on Friday.
Concerns about the ACTA negotiations are shared by civil liberties groups and phone and Internet companies. On Tuesday ETNO, a trade group representing telecom providers, joined the chorus of criticism of the talks. "ETNO is concerned that disproportionate and wide-ranging measures such as filtering or the possibility of disconnecting Internet users could be introduced," said Director Michael Bartholomew.
In an interview Wednesday, Bartholomew said the ACTA in its current form contradicts existing laws, especially in Europe, and would rewrite the ground rules of e-commerce in Europe.
The proposal to raise Internet service providers' legal liability for the content they carry "calls into question laws already on the books on which our members' business models are based," he said.
Martins insisted that the ACTA would not contradict existing E.U. laws. "They are our basis, our inspiration for the discussions," he said, adding that laws limiting ISPs' liability for the content they carry are flexible and leave room for interpretation to the 27 member-states of the E.U.
The specific law for telecom providers and ISPs, which act as so-called mere conduits, is the e-commerce directive, but Martins said this law doesn't totally waive firms' liability.
"They do have some obligations," he said, adding: "Keeping this flexibility is important."
Some ISPs argue that their role in distributing information for their subscribers is akin to a postal delivery, arguing that to make them liable for the context of electronic communications by subscribers would be as absurd as prosecuting the deliverer of a letter containing illegal material.
Some critics of the ACTA talks remain unconvinced by the fact that negotiators are addressing the transparency issue. "This is pretty standard -- transparency has been on the agenda for the past few meetings," said Michael Geist, a law professor and specialist in e-commerce and Internet law from Ottawa University in an e-mail.
The next meeting of ACTA negotiators will take place in New Zealand in April.
The participating countries are the U.S., the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.