Two digital rights advocacy groups have filed a lawsuit against the Office of the US Trade Representative (USTR) in an attempt to get the office to turn over information about a secret international treaty, involving New Zealand, being negotiated to step up cross-border enforcement of copyright and piracy laws.
The Electronic Frontier Foundation (EFF) and Public Knowledge filed the lawsuit last week after USTR ignored repeated requests to turn over information about the proposed Anti-Counterfeiting Trade Agreement (ACTA).
New Zealand Ministry of Economic Development official George Wardell has attended meetings about the proposed pact, which it insists have not been kept secret from the public. Last month Wardle told Computerworld the meetings were about reconciling different regimes in different countries involved in the discussions.
Many of the matters under discussion are covered by the TRIPS (Trade-related Aspects of Intellectual Property Rights) agreement, signed in 1993, he says.
“TRIPS is the foundation,” says Wardle, but ACTA seeks to add more detail and stronger enforcement against IP breaches in trade.
The ACTA negotiations are “about trying to see how we can possibly accommodate different regimes and come up with something that’s stronger than TRIPS”, Wardle says.
ACTA could include an agreement for the US, Canada, the European Commission and other nations that are part of the talks to enforce each other's intellectual-property (IP) laws, with residents of each country subject to criminal charges when violating the IP laws of another country, according to a supposed ACTA discussion paper posted on Wikileaks.org in May.
The document posted on Wikileaks also talks about increasing border searches in an effort to find counterfeit goods, encouraging ISPs (internet service providers) to remove online material that infringes copyrights and increased cooperation in destroying infringing goods and the equipment used to make them. The full text of the ACTA has not been released, despite requests by EFF and Public Knowledge, as well as Canadian groups. Wikileaks is a site that posts anonymous submissions of sensitive documents.
"ACTA raises serious concerns for citizens' civil liberties and privacy rights," EFF international policy director Gwen Hinze said in a statement. "This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP. People need to see the full text of ACTA now, so that they can evaluate its impact on their lives and express that opinion to their political leaders. Instead, the USTR is keeping us in the dark while talks go on behind closed doors."
A USTR spokesman said the office is "working hard to keep the public informed" about all of its efforts to fight counterfeiting and piracy, including the trade agreement. USTR was to host a public meeting on ACTA last week, and the office has made its officials available to brief groups interested in the trade pact, says spokesman Scott Elmore.
"We will continue to engage with stakeholders as we work with our trading partners to fight the scourge of counterfeiting and piracy," Elmore says.
In the lawsuit, filed in US District Court for the District of Columbia, Public Knowledge and EFF say the trade agreement's documents are subject to the US Freedom of Information Act. FOIA requires US agencies to turn over most documents, with some exceptions, when a US resident requests them.
The two groups filed an FOIA request in June, then clarified the request two weeks later. USTR did not respond after that, and in August, a lawyer for the two groups tried to reach a USTR official dealing with the FOIA request, but a voice message was not returned.
USTR is "working diligently" to answer the FOIA request by EFF and Public Knowledge, but their request was one of nine FOIA requests related to IP filed in June with the office, Elmore said.
ACTA is being negotiated as an executive agreement, not a treaty, meaning it wouldn't be subject to congressional scrutiny and approval, says Art Brodsky, Public Knowledge's communications director.
"This is an unusual situation," he says. "At this point, we're trying to figure out what's going on. The other side is clearly working with USTR. USTR will have public meetings and listen to us, but won't show us what's going on."
US Trade Representative Susan Schwab announced plans last October to negotiate the trade agreement. USTR posted a notice asking for public comments on ACTA in February, but the only documentation included in that request was a one-and-a-half page fact sheet.
Nevertheless, several groups filed comments about ACTA. The Business Software Alliance, a trade group representing large software vendors, said it "strongly supports USTR's efforts to address counterfeiting and piracy through a plurilateral trade agreement".
The Recording Industry Association of America (RIAA) filed comments offering suggestions for the trade agreement. Among its recommendations: Countries should allow investigators to treat piracy like organised crime, giving IP enforcement efforts additional resources used to fight organised crime. The RIAA also wants laws requiring ISPs to remove infringing materials posted by subscribers, the trade group said in its comments.
The Motion Picture Association of America also filed comments supporting ACTA and offering suggestions.
Other countries involved in the ACTA talks are Switzerland, Japan, South Korea, Singapore, Australia, New Zealand, Mexico, Jordan, Morocco and the United Arab Emirates.
Additional reporting by Rob O'Neill