[p2p-research] Fwd: [fcforum] Advocacy on ACTA

Michel Bauwens michelsub2004 at gmail.com
Thu Nov 19 15:05:18 CET 2009

---------- Forwarded message ----------
From: Eddan Katz <eddan at eff.org>
Date: Thu, Nov 19, 2009 at 5:50 PM
Subject: [fcforum] Advocacy on ACTA
To: fcforum at list.fcforum.net

 Hi all -

Just wanted to share with you some of what we're doing over on this side of
the pond at EFF on ACTA. The following is a blogpost about how negotiating
ACTA as an Executive Agreement could be a violation of the US constitution,
if the laws of the US would require some change. The links from online are
in endnote form here in the email. Given the soft spot of ACTA in regards to
it being bound by domestic and cannot change it, I was hoping people might
be interested in looking into how individual European national laws may need
to be changed in addition to the EU level analysis and advocacy that a great
many capable people are already doing. If you're interested - let me know.

I also wanted to let you all know that I mentioned the Free Culture Forum
and the Charter in an editorial for this issue of EDRi-gram which came out
yesterday. I'm including that further below. As I tried to point out in the
editorial, Christian Ergström, Pirate MEP, is soliciting our help on a
Parliamentary question about ACTA and the Telecom Package. In addition to
individually blogging and tweeting it, I thought people might have some
ideas for how to do this in a coordinated way.

Hope all's well.

Stopping the ACTA Juggernaut.

Legislative Analysis by Eddan Katz
November 19, 2009

ACTA juggernaut continues to roll ahead, despite public indignation[1] about
an agreement supposedly about counterfeiting agreement that has turned into
a regime for global Internet regulation. The Office of the United States
Trade Representative (USTR) has already announced[2] that the next round of
Anti-Counterfeiting Trade Agreement (ACTA) negotiations will take place in
January &mdash; with the aim of concluding the deal "as soon as possible in

For the rest of us, with access[3] to only leaks[4] and[5] whispers[6] of
what ACTA is about[7], there are many troubling questions. How can such a
radical proposal legally be kept so secret from the millions of Net users
and companies whose rights and freedoms stand to be affected[8]? Who decides
what becomes the law of the land and by what influence? Where is the public
oversight for an agreement that would set the legal rules for the knowledge
economy? And what can be done to fix this runaway process?

We wrestle with these questions in an essay on “The Impact of ACTA on the
Knowledge Economy”[9] in the Yale Journal of International Law (November
2009 edition)[10]. We explain how ACTA got this far, in this form, and
propose four mechanisms for USTR transparency reforms, and will give the
public a voice in ACTA, if U.S. citizens - and their elected officials -
speak loudly and quickly enough[11].

In brief, the ACTA process has been deliberately more secretive than
customary practices in international decision-making bodies[12] to evade[13]
the debates about intellectual property (IP) at established multilateral
institutions. The Office of the USTR has chosen to negotiate ACTA as a sole
executive agreement[14]. Because of a loophole[15] in democratic
accountability on sole executive agreements, the Office of the USTR can sign
off on an IP Enforcement agenda[16] without any formal congressional
involvement at all[17]. But the negotiations do not have to be secret, and
the sole executive agreement process does have mechanisms for oversight:
they have not been used in ACTA, but can and should be.

The excuse for using sole executive agreements is that ACTA will be fully
respectful of U.S. law[18]. But the constraint of coloring within the lines
of US law[19], as one anonymous trade official described it, is a fragile
linchpin upon which the weight of public trust and democratic legitimacy is
bearing down. In an interview with "Inside U.S. Trade"[20], for their June
19, 2009 edition[21] (paywall link), the USTR was far less confident:

When pressed whether the U.S. would be open to any negotiated difference
from U.S. law in the ACTA, the official said that the goal of the U.S. "is
to stick as closely to U.S. law as possible."

How can the USTR negotiate an international agreement that sets new global
IP enforcement norms requiring changes to U.S. law and policy as an
Executive Agreement, without the knowledge or involvement of Congress?
Having failed to get similar proposal adopted via the World Customs
Organization[22], the USTR conceived ACTA as a plurilateral agreement[23],
avoiding the checks and balances of existing multilateral norm-setting
bodies[24]. After the announcement of ACTA but prior to commencing formal
negotiations, the USTR had prepared a confidentiality agreement[25] that it
asked all negotiating countries to accept, which explicitly binds the
negotiating partners from public disclosure[26]. The USTR has exploited this
as the justification for classifying all correspondence between negotiating
countries in the interest of national security[27] under Executive Order
12958[28]. The Mexican IP Office hosting the next ACTA negotiations recently
suggested that they still do not intend for the documents to be made
available to the public[29]. The Internet Chapter was reportedly delivered
to negotiating partners in physical, watermarked copies designed to guard
against leaks[30]. If the traditional justification for secrecy in trade
negotiations is to safeguard details of sensitive US positions in
negotiations for diplomatic advantage over other foreign governments, then
why is this confidentiality agreement being used to prevent disclosure of
ACTA texts to its own citizens?

Upon the expiration of Trade Promotion Authority in 2007[31], the USTR chose
to negotiate ACTA as a sole executive agreement. As a result, ACTA will not
require congressional advice and approval[32], which is integral to the
constitution's delicate balance[33] of executive and legislative powers. As
staunch a defender of executive privilege as John Yoo once convincingly
argued that the limits of executive power to negotiate foreign agreements on
intellectual property matters unchecked would deprive the House of its
constitutional function[34].

>From early on[35], civil[36] society[37] has protested ACTA's secrecy, and
despite continued public pressure[38], the USTR’s transparency theater[39]
rehearsals of internal review have concluded that showing a selective few
Washington insiders[40] the Internet provisions under non-disclosure
agreements would satisfy the demands of openness, transparency, and

Sole executive agreements are not meant to be unaccountable. There are in
fact systems in place to stop our executive (and private interests) from
having untrammeled power to change the law. We've outlined four ways that
Congress, or an Administration sincere about transparency, could put their
house in order.

* Reform trade advisory committees for more diverse representation

Input to U.S. trade negotiators on IP needs to reflect the views of all
stakeholders in the U.S. knowledge economy[42] to counterbalance the
disproportionate influence of lobbyists for incumbent industries. This
requires reform of the current trade advisory committee[43] system to
include civil society and technology industry participation in the tier 3
industry trade advisory committee on intellectual property, ITAC-15[44], or
the creation of new equivalent level advisory committees[45]. Public
interest values such as health and consumer protection[46] could play an
important role in the new bipartisan trade policy[47] for the knowledge

* Strengthen congressional oversight and negotiating objectives

Congressional oversight of foreign trade negotiations, especially agreements
affecting areas of non-trade domestic policy, should require the USTR to
comply with negotiating objectives that reflect the interests of all
stakeholders in the U.S. economy. In addition to the labor and environmental
standards articulated in proposed bills like the TRADE Act (H.R. 3012)[48],
IP enforcement provisions in agreements must not undermine internationally
agreed upon commitments on public health[49], and flexibilities that protect
citizens’ access to knowledge[50], nor obstruct IP exceptions and
limitations[51] appropriate for the digital age. In addition, the
Congressional Oversight Group[52], a statutory supervisory group comprising
members House and the Senate designed to liaise with the Trade
Representative could conduct a thorough review and certify that the new
negotiating objectives have been met before a trade agreement could be
brought for a congressional vote.

* Institutionalize transparency guidelines for trade negotiations

Given the significance of the substantive provisions being debated to
Internet users, the ACTA process especially should enable citizens to
participate and provide input[53] on the public policy impacts like in other
negotiations[54] and their customary practices of making documents
available[55]. The USTR incorporating these reforms should heed the Attorney
General's instruction to adopt a presumption in favor of disclosure[56] to
usher in the President's new era of open Government[57]. At a minimum,
negotiating texts[58], when distributed to all negotiating countries should
be made public.

* Implement the State Department’s Circular 175 procedure.

Finally, the State Department plays an important role in checking the
unfettered power of the USTR through its Circular 175 Procedure[59]. These
are the regulations that "ensure the proper exercise of the treaty-making
power." The State Department Foreign Affairs Manual goes into great
detail[60] on the Legal Advisor's criteria for review of international
agreements. There are multiple procedures on hand, including formal
congressional consultation, when there is a serious question regarding the
type of agreement being negotiated. {11 FAM 723.4(b)} It is also made clear
that the approval of authorization to negotiate does not constitute advance
approval of the text or authorization to enter into the agreement. {11 FAM
724.2} The State Department investigates whether the proposed agreement is
"in conflict with other international agreements or U.S. law" {11 FAM
722(2)} and whether it follows the "general international practice as to
similar agreements." {11 FAM 723.3(8)} Most significantly for the public's
stake in Internet freedom, the Circular 175 declares that:

The interest of the public be taken into account and, where in the opinion
of the Secretary of State or his or her designee the circumstances permit,
the public be given an opportunity to comment. {11 FAM 725.1(6)}

The USTR transparency practices must be reformed, and they have failed at
reforming themselves. Now that the leaked documents[61] confirm everything
we feared[62], it is time to take a look at how we might hold USTR
Ambassador Kirk and Assistant McCoy, the lead ACTA negotiator, to account
for their promises:

-- On diverse representation for advice on trade: "I can assure you that I
am committed to working very closely with Congress and all interested
stakeholders on all of our trade agreements and negotiations, including
ACTA." (Ronald Kirk Confirmation Hearings, March 9, 2009)[63]

-- On congressional oversight and legislative power: "Q: Will the ACTA
rewrite U.S. law? A: No.  Only the U.S. Congress can change U.S. law. (ACTA
Fact Sheet, August 4, 2008)[64]

-- On transparency practices: President Obama’s trade officials met with
several civil society groups and promised a thorough review of the USTR
policies regarding transparency. The review is expected to be completed
within a few months. The process will include a meeting within a month to
discuss initial specific proposals for openness and transparency. Citizens
and NGOs are encouraged to think about the specific areas where openness and
transparency can be enhanced and how. (KEI USTR Transparency Review Report,
March 19, 2009 - as reviewed by Daniel Sepulveda, Assistant USTR for
Congressional Affairs)[65]

-- On public participation: The ACTA negotitations "[p]articipants also
discussed the importance of transparency including the availability of
opportunities for stakeholders and the public in general to provide
meaningful input into the negotiating process." (USTR Press Release,
November 6, 2009)[66]

Such accountability is available in the U.S. system, but it cannot come from
the Office of the USTR alone. If ACTA is going to regulate the global
Internet, we believe that should warrant the opportunity for public comment.

[1] http://www.boingboing.net/2009/11/03/secret-copyright-tre.html
[3] http://anticounterfeitingtradeagreement.com/
[7] http://www.michaelgeist.ca/content/view/4530/125/
[9] http://www.yjil.org/images/pdfs/katz_hinze_432.pdf
[10] http://www.yjil.org
[11] http://www.eff.org/deeplinks/2009/11/reining-in-acta
[12] http://www.keionline.org/misc-docs/4/attachment1_transparency_ustr.pdf
[14] http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf
[15] http://www.virginialawreview.org/articles.php?article=204
[17] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1108065
[18] http://news.cnet.com/8301-13578_3-10047945-38.html
[20] http://www.insidetrade.com/
[23] http://kestudies.org/ojs/index.php/kes/article/view/34/59
[25] http://www.eff.org/files/filenode/EFF_PK_v_USTR/McCoy.pdf
[26] http://www.ustr.gov/about-us/press-office/blog/ask-ambassador-acta-text
[27] http://www.keionline.org/blogs/2009/03/12/acta-state-secret
[28] http://www.fas.org/sgp/clinton/eo12958.html
[29] http://partidopiratamexicano.org/?p=497
[30] http://www.michaelgeist.ca/content/view/4510/125/
[31] http://www.fasttrackhistory.org/conclusion.html
[33] http://en.wikipedia.org/wiki/Treaty_Clause
[35] http://www.eff.org/issues/acta
[36] http://ipjustice.org/wp/campaigns/acta/
[38] http://www.keionline.org/acta-petition
[41] http://www.publicknowledge.org/node/2710
[43] http://www.gao.gov/new.items/d02876.pdf
[45] http://www.eff.org/files/filenode/acta/eff_pk_testimony.pdf
[46] http://www.cpath.org/id4.html
[47] http://www.harvardjol.com/wp-content/uploads/2009/08/377-420_Rangel.pdf
[48] http://www.citizen.org/trade/tradeact/
[50] http://www.wipo.int/ip-development/en/agenda/recommendations.html
[52] http://codes.lp.findlaw.com/uscode/19/24/3807
[53] http://www.keionline.org/node/684
[54] http://www.keionline.org/misc-docs/4/attachment3_transparency_ustr.pdf
[55] http://www.keionline.org/misc-docs/4/attachment2_transparency_ustr.pdf
[56] http://www.justice.gov/ag/foia-memo-march2009.pdf
[57] http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/
[58] http://www.publicknowledge.org/node/2753
[59] http://www.state.gov/s/l/treaty/c175/
[60] http://www.state.gov/documents/organization/88317.pdf
[61] http://www.wired.com/threatlevel/2009/11/acta/
[65] http://www.keionline.org/blogs/2009/03/20/ustr2review-transparency


ENDitorial: Mobilizing to Stop ACTA
EDRi-gram newsletter No. 7.22, 18 November, 2009

The negotiating partners of ACTA have announced that the next round of
negotiations on ACTA will take place in Mexico in January and have promised
to conclude the agreement in 2010. As the last edition of the EDRi-gram
exposed, the Internet Provisions of ACTA lay down a global foundation for
riposte graduée, a global DMCA, and increased authority for border guards to
implement an information customs regime. This global secret copyright treaty
seems unstoppable, but it stands on some fragile footing.

Not everyone was taken by surprise. The Foundation for a Free Information
Infrastructure (FFII) and especially Ante Wessels, has been working on a
sharp and thorough analysis of ACTA for quite a long time that sets forth
the issues of concern and points out the weak spots in ACTA's armor. La
Quadrature du Net also has set up a web dossier on ACTA, the OpenNet
Coalition behind the Blackout Europe campaign has been getting prepared, and
the Werebuild.eu project wiki has an ACTA page.

The European Parliament has already spoken clearly in the Susta Report last
year on the expectations for transparency to European citizens, the
limitations of the Commission's competence on the criminal provisions, the
protection of privacy, and other public interest concerns about this closed
door pact of global impact.

And this time, artists have come out to show their support for the Open
Internet and not be used as pawns in the entertainment industry's attempts
to rig an international regime to preserve their business models. The Free
Culture Forum has released their Charter for Innovation and Access to
Knowledge. The Trans-Atlantic Consumer Dialogue recently concluded the
second round of the Paris Accord, negotiating an agreement between consumers
and artists.

Now, Christian Engström, Member of European Parliament (Pirate Party) has
invited the Internet community to help him shape a question on ACTA and the
Telecom Package, to which the European Commission and Council are obliged to
respond. Below are some brief thoughts intended to engage a fuller
discussion on four areas of intersection between ACTA and the Citizen's
Rights Amendment (138) of the Telecom Package: (1) Judicial obligations; (2)
Privacy; (3) Fundamental Rights; and (4) EU Competence.

First, in regards to obligations for adjudication and enforcement on the
members states, it was a long and hard fought battle over the essence of
Amendment 138 as requiring a prior judicial ruling before termination of
Internet access. Conveniently prepared just weeks before the final
Conciliation, the legal services of the European Parliament issued an
opinion that the EU's meddling in such civil and criminal procedures is
outside the competence of the EU. Well, now it turns out that ACTA not only
wants to increase the ex officio authority of border guards, it also delves
quite specifically into changes in the remedial powers of the court,
including the calculation of damages, the mandatory availability of
injunctions, the scope of criminal sanctions, and rules regarding search and
seizure. Does the hurried legal memo apply for this vast overreach on
shaping global norms as well? The European Parliament should inquire as to
the changes ACTA may require of Members States regarding their civil and
criminal procedure.

Second, ACTA can only be agreed upon by the negotiating partners if it does
not require a change in their own laws. As the Director of the Mexican IP
Office who will be hosting the next ACTA negotiations has declared that they
are "not going to negotiate something that is outside of our legislation,
which goes against the constitution, laws or the criminal code." There are
of course differences between the diverse countries taking part in the
negotiations of ACTA. A significant difference in legal framework is in
regards to privacy, especially between the US and EU. The final Amendment
138 text emphasized the increased standard of the privacy right and the
presumption of innocence, so that their priority is preserved in the
balancing of interests when in conflict with IP enforcement, for example.
The European Parliament must make sure the general public is aware of the
potential privacy implications of ACTA well before it is concluded.

Third, it is important to remember that the fundamental rights and freedoms
ACTA impacts is not only in regards to the Internet, but is also harmful to
the global Access to Medicines. The Dutch drug seizure scandal should of
life-saving treatments that were in transit from India to Brazil confiscated
for patent infringement even though they were not under patent at neither
the origin nor destination of shipment. The leaked copies of the ACTA text
contain "in-transit" provisions that would give pharmaceutical companies the
power to control the distribution of generic versions of essential
medicines. (These "in-transit" provisions would also then presumably mean
that an electronics product that contains hardware or software under patent
in one country but not another could also be seized.) The European
Parliament should clarify how ACTA will impact the distribution of medicines
and textbooks, and the impact on accessibility and the availability of
library information across borders.

Finally, in regards to EU competence, it is a great stretch for the Article
133 Committee of the European Commission DG Trade to claim proper competence
for the sweeping changes proposed in the ACTA on a broad range of policy
issues. As the FFII analysis and the Ombudsman complaints reveal, ACTA goes
beyond the acquis communitaire in several important areas. The criminal
provisions of ACTA in particular clearly lie outside its competence, which
is why a couple representatives from the Council were reportedly invited to
previous negotiations to satisfy the need for a common accord with the
European Members States, despite the requirement for unanimity in European
Council. And as EDRi's Joe McNamee reminded us, the European Commission is
opening up the issues of third-party liability in the Internet Provisions
even though Parliament expressly declared that it shouldn't. The European
Parliament should ask for clarification on how it is justified that those
questions which are at the forefront of the controversies and debates over
digital rights and access to knowledge, which are now in the midst of the
legislative process, can be decided behind closed doors for the world,
without public input and democratic participation.

EDRi-gram: ENDitorial: ACTA revealed, European ISPs might have a big problem

FFII: ACTA analysis

La Quadrature: Acta

We Re-Build: ACTA

Free culture forum: Charter for Innovation, Creativity and Access to

The Paris Accord Round II (23-24.10.2009)

Question on ACTA and the Telecoms Package (15.11.2009)

Report on the impact of counterfeiting on international(8.11.2008)

Interview with Jorge Amigo, Director of IMPI about #ACTA (13.11.2009)

HAI Statement - Release of generic ARV medicines by Dutch Customs
Authorities (20.03.2009)

Trade Talks Hone in on Internet Abuse and ISP Liability (3.11.2009)

(Contribution by Eddan Katz - EDRi-member Electronic Frontier Foundation -

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