[pp.int.general] [Fwd] [opennetcoalition] Accountability for ACTA

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- ----- Forwarded message from Eddan Katz <eddan a eff.org> -----

Date: Thu, 19 Nov 2009 09:17:26 -0800
From: Eddan Katz <eddan a eff.org>
To: opennetcoalition a laquadrature.net
Subject: [opennetcoalition] Accountability for ACTA
X-Mailer: Apple Mail (2.936)

Just wanted to  share a couple posts 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 idea  is to insist
that there be an opportunity for  public comment as a result, not only
a demand  for congressional  oversight. The links  from online  are in
endnote  form here in  the email.  There is  also an  accompanying law
review article from http://www.yjil.org/ also linked to below.

I am also including my  ENDitorial for this issue of EDRi-gram further
below. As  you all  already know, Christian  Ergström, Pirate  MEP, is
soliciting help on a Parliamentary question about ACTA and the Telecom
Package. I tried to throw some initial thoughts into the ring - I'd be
interested to know if there has been some interest and/or effort to do
this in a coordinated way?

Also, given that a major soft spot of ACTA is that the negotiators are
bound by domestic laws which they  lack the authority to change, I was
wondering if anyone had looked  into or was interested in looking into
how  individual European national  laws may  need to  be changed  as a
result of  ACTA provisions, in addition  to the EU  level analysis and
advocacy   that    have   been   very    capably   analyzed   already.

The  closest we  have  to the  texts  are the  Wikileaks  docs of  the
previous                                                       sections
)                                                                   and
) in addition to the currently discussed Internet chapter. As far as I
know, there has  been such analysis done in  Canada (Geist), Australia
(Weatherall), US  (KEI/EFF), and  the EU (see  above). It seems  to me
that even within Europe, there would be significant differences in law
on some  of the issues  taken up by  ACTA - border  enforcement, civil
procedure, criminal sanctions. Let me  know if anyone is interested in
further info about this.

- -Eddan

- --------
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 2010."

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 oversight[41].

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 economy.

* 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
[2] http://www.ustr.gov/about-us/press-office/press-releases/2009/november/-office-us-trade-representative-releases-statemen
[3] http://anticounterfeitingtradeagreement.com/
[4] http://www.pcworld.com/article/181312/trade_talks_hone_in_on_internet_abuse_and_isp_liability.html
[5] http://wikileaks.org/wiki/ACTA_negotiations_brief_on_Border_Measures_and_Civil_Enforcement_2008
[6] http://torrentfreak.com/riaas-anti-piracy-trade-agreement-wishlist-08082/
[7] http://www.michaelgeist.ca/content/view/4530/125/
[8] http://works.bepress.com/cgi/viewcontent.cgi?article=1018&context=kimweatherall
[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
[13] http://www.iqsensato.org/blog/2009/04/12/acta-revelead-the-danger-signs-become-clearer/
[14] http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf
[15] http://www.virginialawreview.org/articles.php?article=204
[16] http://www.twnside.org.sg/title2/intellectual_property/development.research/SusanSellfinalversion.pdf
[17] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1108065
[18] http://news.cnet.com/8301-13578_3-10047945-38.html
[19] http://www.washingtonpost.com/wp-dyn/content/article/2009/11/13/AR2009111300852.html
[20] http://www.insidetrade.com/
[21] http://www.insidetrade.com/secure/display.asp?dn=INSIDETRADE-27-24-4&f=wto2002.ask
[22] http://www.southcentre.org/index2.php?option=com_docman&task=doc_view&gid=1231&Itemid=69
[23] http://kestudies.org/ojs/index.php/kes/article/view/34/59
[24] http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo/
[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
[32] http://bytestyle.tv/content/acta-internet-users-guilty-until-proven-innocent
[33] http://en.wikipedia.org/wiki/Treaty_Clause
[34] http://www.escholarship.org/uc/item/4px3m0fx;jsessionid=B9ABD6892022380FE562222E52E7FE3F
[35] http://www.eff.org/issues/acta
[36] http://ipjustice.org/wp/campaigns/acta/
[37] http://tacd.org/index2.php?option=com_docman&task=doc_view&gid=234&Itemid=40
[38] http://www.keionline.org/acta-petition
[39] http://blog.cdt.org/2009/03/20/intermission-at-ustrs-transparency-theater/
[40] http://www.huffingtonpost.com/james-love/white-house-creates-secre_b_322182.html
[41] http://www.publicknowledge.org/node/2710
[42] http://www.eff.org/deeplinks/2009/08/u-s-trade-advisory-committees-need-public-interest
[43] http://www.gao.gov/new.items/d02876.pdf
[44] http://www.trade.gov/itac/committees/ITAC15.IntellectualPropertyRights.asp
[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/
[49] http://www.essentialaction.org/access/index.php?/archives/213-ACTA-and-the-Drug-Monopoly-Enforcement-Agenda-A-windfall-for-big-drug-companies;-higher-medicine-prices-for-all.html
[50] http://www.wipo.int/ip-development/en/agenda/recommendations.html
[51] http://www.ivir.nl/publications/hugenholtz/limitations_exceptions_copyright.pdf
[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/
[62] http://www.eff.org/deeplinks/2009/11/leaked-acta-internet-provisions-three-strikes-and-
[63] http://www.finance.senate.gov/hearings/testimony/2009test/031109QFRs%20for%20SubmissionRK.pdf
[64] http://www.ustr.gov/sites/default/files/uploads/factsheets/2008/asset_upload_file760_15084.pdf
[65] http://www.keionline.org/blogs/2009/03/20/ustr2review-transparency
[66] http://www.ustr.gov/about-us/press-office/press-releases/2009/november/-office-us-trade-representative-releases-statemen

- --------

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

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 (4.11.2009)

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 - USA)

Opennetcoalition mailing list
Opennetcoalition a laquadrature.net

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