If SOPA was an aircraft carrier, ACTA and TPP are nuclear submarines

SOPA is on ice for now — some say dead — but we need to remain vigilant. It’s difficult however, when governments create new laws that threaten internet freedom of speech and privacy, in secret under the guise of trade agreements.

There’s a lot of discussion around the Anti-Counterfeiting Trade Agreement (ACTA). While some hail it as the next SOPA, others see it as less insidious. Much of the anti ACTA histrionics are actually ripple effects from the interpretation of earlier drafts of the agreement, but there are definitely key issues to be concerned about.

What is ACTA?

ACTA is an international blueprint for handling intellectual property infringement. More specifically, it provides guidelines — subject to tweaking by a signing country’s own domestic laws — for dealing with counterfeit goods, generic medicines and most importantly for us netizens, copyright infringement on the internet.

Designed as a trade agreement by the US, it was signed in October of last year by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States. In January this year, the European Union and 22 of its member states signed as well, bringing the total number of signatories to 31. The remaining members (Cyprus, Estonia, Germany, Netherlands and Slovakia) are expected to sign on the completion of their respective domestic procedures. This should happen before March 31st of this year. In June there will be a final debate in the European Parliament which will ultimately decide ACTA’s fate.

I’d like to focus on ACTA issues that affect the Internet.

ACTA key issue 1 — Big Brother

Section 27.3 requires participating nations to “promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.”

Despite claims that it forces ISPs to monitor everything their users do, what section 27.3 actually seems to imply — in terms of online policies — is the possible creation of a safe harbour for ISPs with infringing subscribers. Think France’s HADOPI or the American safe harbour provision in the DMCA.

Timothy Lee from Ars Technica points out that there there are also innocuous — offline — ways a country could comply. These include holding conferences on copyright enforcement, sending literature to businesses encouraging them to respect copyright, and setting up an anonymous tip line for suspected copyright or trademark infringement.

Even so, it’s easy to see how this provision would be protested in signing countries that don’t have such laws currently, especially when citizens have no say in the matter. This brings me to my second key issue. Secrecy.

ACTA key issue 2 — Secrecy

ACTA has been negotiated in secrecy for the last three years. Until the agreement leaked out, no one knew anything about it. Unlike SOPA, which everyone saw coming like an aircraft carrier, ACTA was a nuclear submarine negotiated by non democratically elected representatives, outside the public law making process. How did that happen? ACTA was labled as an “executive agreement” which allowed negotiators to skip the ordinary Senate ratification process. In fact, ACTA will create a new governing body and bypass existing forums such as the World Trade Organization, the World Intellectual Property Organization, or the United Nations.

Citizens have no say in whether or not the agreement will become a law in their countries. It was created and signed behind their backs. When the people of Poland found out that their government joined ACTA, 250,000 citizens signed a petition and thousands marched in protest.

A member of the European Parliament even resigned his position as rapporteur to scrutinize the agreement, concluding that the entire review process is a “charade.”

There was no transparency here. No democracy.

If ACTA becomes a binding part of international law, this clandestine way of law making could set a precedent for future treaties.

In a world with ACTA, the “if you’re not with us, you’re against us” rationale could also impact countries that do not adopt the agreement. Countries that decline to sign, could run the risk of being seen as having inferior intellectual property protection.

Trans-Pacific Partnership (TPP)

Like ACTA, TPP was also created in secrecy by the US and has been in development for almost 5 years now. About 10 months ago a draft agreement leaked which allows signing countries to adopt America’s DMCA rules on digital locks, ISP liability and ISP disconnections.

Once again citizens of a country that signs the agreement won’t see it coming. As with ACTA, by the time the negotiators release a text for public comment, few major changes are still possible.

In closing

Keep an eye on these emerging threats and insist on transparency and the basic principles of democracy. These laws that affect us all should never be negotiated in secret. When they are, they create an air of doubt and fuel conjecture even if the laws don’t intend to. As an EU negotiator on ACTA told a US embassy official in Sweden, “the secrecy issue has been very damaging to the negotiating climate in Sweden… The secrecy around the negotiations has led to the legitimacy of the whole process being questioned.”