[A2k] Obama Administration rules texts of new IPR agreement are
statesecrets
Paul Lehto
lehto.paul@gmail.com
Fri Mar 13 16:47:01 2009
Maybe you won something in this FOIA denial, specifically the ability
to make the following statement: "There's no significant doubt that
if these negotiation drafts were released, the position of the US
would be significantly damaged, since indeed that is only way that
Executive Order 129258 can be invoked: when damage to a US position
would occur from its disclosure. In a treaty about business law and
intellectual property law, what are they hiding?"
Here's the details:
Normally, in civil as opposed to criminal ("taking the 5th") contexts,
the failure to produce information where one would normally be able to
properly draw every inference against the party hiding the
information. This is the general doctrine of "spoliation" of
evidence, and in the civil, unlike the criminal, context, silence is
"probative" meaning that silence can be argued to prove one's
culpability. (e.g. taking the 5th in Bankruptcy court, a civil court,
will result in an order to compel and/or a dismissal of one's
bankruptcy)
This inference is hardwired as fact in this case because they've
invoked Executive Order 12958. I'd consider this FOIA denial an
admission of the truth of your position --namely that disclosure of
these negotiating documents would damage the US position -- at least
until such time as the detailed documents are produced, for the
following specific legal reasons:
1. The damage that this FOIA would cause to the US position must be
taken as a fact, unless Executive Order 12958 was invoked in bad
faith, in which case the FOIA should have been granted. EXECUTIVE
ORDER 12958 states at
Sec. 1.2. Classification Standards. (a) Information may be originally
classified under the terms of this order only if all of the following
conditions are met:
[...] (4) the original classification authority determines that the
unauthorized *disclosure* of the information reasonably could be
expected to *result in damage* to the national security and the
original classification authority is able to *identify or describe the
damage.*
http://www.fas.org/sgp/clinton/eo12958.html
2. Moreover, under Sec. 1.2 (b) there's "no significant doubt" that
this damage to the US position would occur.
Sec. 1.2(b) states that "If there is significant doubt about the need
to classify information, it shall not be classified."
3. Under normal contract law, a signed contract (if there is one
here) destroys all prior drafts and preliminary or even signed
agreements under what's called the parol evidence rule, or the
doctrine of "merger" -- unless the new agreement specifically
incorporates or provides for the survival of some past draft or
agreement. This "merger" into the document is purposed to keep the
meaning of contracts as certain as possible, reducing all negotiations
to the black and white on paper in the final draft only, and
minimizing the need for evidence outside the contract. (If language is
ambiguous, resort may be had to extrinsic evidence outside the
contract). The fact that these negotiation drafts are legally
inoperative to control the final signed copy weakens any claim that
there is a national security interest here that goes beyond mere
embarrassment, which, in the absence of more, is the classic example
of where transparency is most needed.
4. Under this executive order, there must be a classification of Top
Secret, Secret or Confidential, and there must be specific reasons for
it. I'd think, though I'm not 100% sure, that these classifications
and reasons should have been provided in the FOIA denial, but were not
provided.
Regards,
Paul Lehto
Juris Doctor
On 3/11/09, Jeffrey A. Williams <jwkckid1@ix.netcom.com> wrote:
> Jamie and all,
>
> I for one fully agree. There is no good reason to keep the IPR
> agreement secret, especially sense it's potential precepts will almost
> certainly have an effect on the general public. It transparency and
> accountability is a significant ethic of the Obama administration, we
> should all have access to the IPR and all documents in regard to
> ACTA.
>
> James Love wrote:
>
>> http://www.huffingtonpost.com/james-love/obama-administration-rule_b_174450.html
>>
>> Obama Administration rules texts of new IPR agreement are state secrets
>> James Love
>>
>> We have been seeking access to documents relating to negotiations on an
>> important new intellectual property enforcement treaty. The agreement,
>> misleadingly named the Anti-Counterfeiting Trade Agreement, or ACTA, is
>> thought to cover a wide range of intellectual property enforcement
>> issues -- including standards for granting injunctions for alleged
>> infringement of patents or copyrights, damages, seizures of goods in
>> transit, surveillance of Internet digital file transfers, searches of
>> personal property, and a dozen other topics.
>>
>> There are number of outstanding Freedom of Information Act (FOIA)
>> requests for key documents, by groups like EFF, Public Knowledge, and
>> KEI. In one of our FOIA requests, we asked for 7 specific documents,
>> referenced by the exact title and date of the documents. These documents
>> are the proposals for the text of the agreement.
>>
>> The texts are available to the Japanese government. They are available
>> to the 27 member states of the European Union. They are available to the
>> governments of Canada, Mexico, New Zealand, Australia. They are
>> available to Morocco, and many other countries. They are available to
>> "cleared" advisers (mostly well connected lobbyists) for the
>> pharmaceutical, software, entertainment and publishing industries. But
>> they are a secret from you, the public.
>>
>> Today we received this letter from the White House, Office of the United
>> States Trade Representative. Our FOIA request was denied on the grounds
>> that the documents are "information that is properly classified in the
>> interest of national security pursuant to Executive Order 12958."
>>
>> Here is a link to a PDF of the denial of the FOIA request.
>>
>> http://www.keionline.org/misc-docs/3/ustr_foia_denial.pdf
>>
>> The original FOIA request is here:
>> ----------------
>>
>> January 31, 2009
>>
>> Dear Stan McCoy
>>
>> As U.S. co-chair of the TACD working group on intellectual property,
>> and the Director of Knowledge Ecology International, I request, under
>> FOIA, electronic copies of the following documents. I believe these
>> documents are being widely circulated to corporate lobbyists in Europe,
>> Japan and the U.S. There is no reason for them to be secret from the
>> American public.
>>
>> James Love, Director, KEI
>>
>> 1. JAPAN - U.S. JOINT PROPOSAL
>> Anti-Counterfeiting Trade Agreement
>> Discussion Draft: October 16, 2008
>>
>> 2. JAPAN - U.S. JOINT PROPOSAL
>> Anti-Counterfeiting Trade Agreement
>> May 20, 2008, and the EU proposals for modifications of the Japan
>> U.S. proposal, dated 7 July 2008
>>
>> 3. Anti-Counterfeiting Trade Agreement, EU proposal: September 23,
>> 2008
>>
>> 4. Anti-Counterfeiting Trade Agreement (ACTA)
>> Non-Paper on institutional issues under the Agreement. June 9, 2008
>>
>> 5. Anti-Counterfeiting Trade Agreement (ACTA), summary of comments
>> on Border Measures
>>
>> 6. JAPAN - U.S. JOINT PROPOSAL
>> Anti-Counterfeiting Trade Agreement
>> Discussion Draft July 23, 2008
>> Comments added September 26, 2008
>>
>> 7. Anti-Counterfeiting Trade Agreement
>> [Definitions]
>> Discussion Draft: May 8, 2008
>>
>> --
>> James Love, Director, Knowledge Ecology International
>> http://www.keionline.org | mailto:james.love at keionline.org
>> Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile
>> +41.76.413.6584
>>
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>
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Paul R Lehto, J.D.
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