Papers on Anti-Counterfeit Talks Show Industry Influence, EFF Says
The few documents released by the U.S. Trade Representative about negotiations of the Anti-Counterfeiting Trade Agreement don’t offer much information beyond what was already available, the Electronic Frontier Foundation said, but they do point to industry influence. The newly released documents also show that negotiators agreed to share documents only within government negotiating teams or outsiders who are part of the “domestic consultation process” and that the U.S. said it would “hold ACTA documents in confidence for a fixed period of time after negotiations conclude.”
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The U.S. Trade Representative released two batches of documents -- in November and on Jan. 16, the last business day of the Bush administration -- in response to a Freedom of Information Act request by EFF and Public Knowledge. The groups filed a lawsuit in September to require the trade representative to release documents. Gwen Hinze, EFF’s international policy director, said the organizations will file a motion for a stay until the attorney general publishes new FOIA guidelines reflecting the “presumption of disclosure” that President Barack Obama has told agencies to use. They'll also ask the Justice Department to file a report once the new guidelines are issued on whether the trade representative should reconsider its previous decision to withhold the vast majority of ACTA documents. “I think there’s an opportunity for them to revisit what they're sharing,” said Eddan Katz, EFF’s international affairs director.
EFF posted a sampling of the 159 released pages on its Web site. More than 1,300 pages have been withheld, it said. A letter from the trade representative to EFF Jan. 16 says documents were withheld under three exceptions in FOIA - on national security, inter- and intra-agency communications protected by the deliberative process and attorney-client privilege and invasion of third parties’ personal privacy.
The number of private meetings disclosed between representatives of business groups and representatives of the trade representative’s office is telling, Hinze said. EFF said the documents show that government officials met three times in 2008 with supporters of the agreement the Coalition Against Counterfeiting and Privacy and the Global Leadership Group of the International Chamber of Commerce’s Business Action to Stop Counterfeiting and Piracy.
The documents also show general agendas for some of the meetings, though not the latest round in December. Observers had been relying on agenda announcements from other countries, especially Australia, Hinze said. In addition, the documents add context to business memos that had been leaked to Wikileaks, she said. The Wikileaks document had left it unclear which businesses signed on to the memos, she said, but the documents released include company logos. “I think that solves one mystery, perhaps,” she said.
Canadian activists have obtained documents through their country’s open-information law, and law Prof. Michael Geist said on his blog that the documents verified a leaked discussion paper. That paper raised hackles because it suggested increased border search powers, criminal measures and encouragement to ISPs to “cooperate with right holders in the removal of infringing material,” EFF said. An e-mail from lead negotiator Stanford McCoy, included among the documents EFF obtained, says border enforcement provisions won’t require searching people’s music players or laptops. “The focus of the discussion on border measures has been on how to deal with large-scale intellectual property infringements,” he wrote. Past U.S. free trade agreements called for ex officio authority for border enforcement, he said, so agents could act on their own without waiting for a complaint, but they're not required to conduct searches.