[A2k] Obama Administration rules texts of new IPR agreement are
statesecrets
Jeffrey A. Williams
jwkckid1@ix.netcom.com
Sat Mar 14 11:08:14 2009
Paul and all,
There is IMO no doubt that Jamie won allot here. Seems
that the Europeans are also wanting/demanding transparency
and accountability directed specifically or in particularly to
ACTA documents as well.
See:
http://arstechnica.com/tech-policy/news/2009/03/european-parliament-to-eu-turn-over-acta-docs.ars
also see:
http://yro.slashdot.org/comments.pl?sid=09/03/13/1446206
I don't believe the argument that the FOIA request was denied
on legitimate grounds that the US would without a doubt significantly
damaged as a result. In fact I believe it is much more likely that
in the current national atmosphere the US government and especially
the Obama Administration, will be at least somewhat damaged if the
FOIA request is not fully complied with. As such, perhaps Jamie should
resubmit it in a few days.
Paul Lehto wrote:
> 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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> >> http://lists.essential.org/mailman/listinfo/a2k
> >
> > Regards,
> >
> > Spokesman for INEGroup LLA. - (Over 284k members/stakeholders strong!)
> > "Obedience of the law is the greatest freedom" -
> > Abraham Lincoln
> > "YES WE CAN!" Barack ( Berry ) Obama
> >
> > "Credit should go with the performance of duty and not with what is
> > very often the accident of glory" - Theodore Roosevelt
> >
> > "If the probability be called P; the injury, L; and the burden, B;
> > liability depends upon whether B is less than L multiplied by
> > P: i.e., whether B is less than PL."
> > United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
> > ===============================================================
> > Updated 1/26/04
> > CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
> > div. of Information Network Eng. INEG. INC.
> > ABA member in good standing member ID 01257402 E-Mail
> > jwkckid1@ix.netcom.com
> > My Phone: 214-244-4827
> >
> > _______________________________________________
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>
> --
> Paul R Lehto, J.D.
> P.O. Box #1
> Ishpeming, MI 49849
> lehto.paul@gmail.com
> 906-204-2333
> 309-413-6541 fax
Regards,
Spokesman for INEGroup LLA. - (Over 284k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
Abraham Lincoln
"YES WE CAN!" Barack ( Berry ) Obama
"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt
"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
===============================================================
Updated 1/26/04
CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
div. of Information Network Eng. INEG. INC.
ABA member in good standing member ID 01257402 E-Mail
jwkckid1@ix.netcom.com
My Phone: 214-244-4827