[A2k] IP-Watch: US Wrestles With Transparency As Europeans Urge Release Of ACTA Texts

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/2009/03/27/us-wrestles-with-transparency-as-=
europeans-urge-release-of-acta-texts/

27 March 2009
US Wrestles With Transparency As Europeans Urge Release Of ACTA Texts
By Kaitlin Mara @ 10:43 am

The parliaments of Sweden and the European Union are urging the
European Union to make public all documentation related to a secretive
global anti-counterfeiting treaty, while the United States has claimed
the papers are a matter of national security and therefore a state
secret. But now the US has decided to undertake a review of its
transparency.

The Office of the United States Trade Representative has said that the
agency will undertake a thorough review of its transparency to the
public, in accordance with the new Obama administration=92s assertion
that a =93democracy requires accountability=94 and =93in the face of doubt,
openness prevails=94 in his government. The timeline for the review has
not been set, according to a USTR spokesperson.

The review was first announced by advocacy group Knowledge Ecology
International, which met with USTR and other civil society groups on
19 March to discuss the openness issue. A follow-up meeting with civil
society will be held in about a month to talk more specifically about
possible changes, according to Eddan Katz of the Electronic Frontier
Foundation, who participated in the 19 March meeting.

The US government on 10 March sent a letter to KEI, in response to a
Freedom of Information Act (FOIA) request on the anti-counterfeiting
treaty denying the group access to the documents it sought.

The Anti-Counterfeiting Trade Agreement (ACTA) is still under
negotiation among a number of nations. Its proponents say it is needed
to counter the rising threat from the proliferation of intellectual
property rights infringement which they say is potentially damaging to
the sustainability of the global economy.

But the secrecy of the treaty as well as concern over what it might
contain has spurred critique of the treaty by civil society groups,
those in the technology industry, and some government representatives.
(IPW, Enforcement, 20 December 2008; 14 December 2008; 3 October 2008).

USTR seemed determine to maintain this secrecy, however, stating in
its 10 March letter to KEI [pdf] that the documents =93are being
withheld=94 as the information =93is properly classified in the interest
of national security.=94

But the letter was sent prior to a meeting between USTR officials and
KEI, EFF and fellow advocacy groups Essential Action and the Consumers
Union at which the USTR promised it would be undertaking a full review
of its policies with a view towards transparency.

It was also sent before a 19 March memorandum [pdf] from the US
Attorney General to the heads of executive departments and agencies -
in response to Obama=92s declaration that openness prevails - that
states: =93an agency should not withhold information simply because it
may do so legally.=94 The Justice Department, it said, will defend a
denial of a FOIA request only if there is reason that disclosure would
harm an interest protected by statutory exemptions or if it is
prohibited by law.

This represents a departure from the closed-lips policies of the Bush
years, when reasons to deny a FOIA request were much broader,
including =93institutional, commercial, and personal privacy interests=94
that might be affected by disclosure.

These parallel processes of the transparency review and the openness
to FOIA requests, said Katz, may indicate a shift in direction.
=93There=92s a lot of opportunity for change in the way that things have
gone on ACTA and on trade policy,=94 he added, especially with new USTR
Ron Kirk now sworn in.

=93As the source of innovation and creative production in the US widens,
and more innovative companies are emerging as reliable parts of the
economy, it=92s wise at this moment of transition to pay attention to
what this broad segment has to say,=94 Katz said.

Transparency Review to =93Maximise=94 Available Information

Kirk, in his opening statement as the new USTR [pdf], asserted that he
and the president =93believe fundamentally that fair, open and
transparent rules-based trade can act as catalyst to benefit working
families and business, large and small, throughout this country.=94

The Office of Intergovernmental Relations at USTR with the offices of
the General Counsel and Congressional Affairs will be coordinating the
review internally, USTR Deputy Assistant for Public Affairs Debbie
Mesloh told Intellectual Property Watch.

The goal, she said, is the =93maximise the information we can make
available to the public without compromising our ability to negotiate
agreements that maximise the gains for Americans to benefit from
international trade.=94

There is currently no set timeline for the review, but Mesloh said the
USTR would =93seek input from across the community of people interested
in or who could be affected by these issues.=94

The relationship between ACTA=92s designation as a state secret and the
new transparency review remained somewhat unclear.

=93The first step is an assessment of how the agency acquires
information from the public and transmits information to the public,=94
she said, adding they would start with a review of the USTR=92s advisory
committees and its informal consultation practices.

EU, Swedish Parliaments Call For EU Openness on ACTA

The Swedish Parliament =93urges the government=85 to investigate the
possibility to revoke the mandate of the [European] Commission to
negotiate about ACTA in secrecy,=94 said a publication of the request
available on the Swedish Green Party=92s website here.

=93This matter is urgent and a decision should be made before the
Council [of EU member governments] reaches a political agreement on
ACTA,=94 the statement continued. =93Information made available so far
clearly demonstrates that ACTA will have far-reaching consequences in
several controversial areas of law.=94 Consequences could extend to
internet access providers, border control, and even private citizens,
they said.

=93Parliamentary supervision is a prerequisite,=94 the statement
continued, =93or the agreement would set a precedent for secret law
making, in violation of the principle that all law making in the EU
must be as transparent as possible.=94

The European Parliament, too, is calling for more transparency on the
treaty negotiations, as a new text adopted by the body called for the
European Commission to =93immediately make all documents related to the
ongoing international negotiations on the Anti-Counterfeiting Trade
Agreement (ACTA) publicly available.=94 The statement comes as a part of
a broader document on pubic access to European Parliament, Council and
Commission documents.

The European Parliament seemed to hold a similar view to the Swedish
Parliament, saying on 11 March that =93no legislative documents should
be kept secret.=94

Civil Society Keeps Up Pressure

KEI made specific recommendations on how USTR could improve
transparency, including disclosure of all negotiating texts, policy
papers, and meeting agendas as well as accreditation of civil society
groups to attend meetings and the institution of public consultation
periods.

Katz said =93by opening up the process you=92ll see participation from
different kinds of companies,=94 such as search engines, internet
service providers, small businesses, software manufacturers and social
networks.

=93By opening up, we=92ll see a more balanced trade policy,=94 he added.
=93USTR has in the past been pursuing distorted exportation of US
copyright and IP policy=94 that will harm the emerging American
innovative sector when it must face stricter laws on operations abroad
than at home.

The US has, Katz said, been exporting exclusive rights but not the
flexibility and balance that facilitated the emergence of leading
thinkers in new innovative spaces such as the internet. He urged USTR
not to pursue a course that represents only a small segment of
interests of multinational companies that are served best by stricter
enforcement and the existing exercise of power.

About a dozen NGOs - including librarian, civil liberties and consumer
groups - weighed in on the matter Thursday, expressing support for the
new FOIA guidelines and hope for the review.

=93I am cautiously optimistic,=94 said Lawrence Lessig, a law professor at
Stanford University, according to a 26 March KEI blog post.

=93As Attorney General Holder=92s recent memorandum on FOIA indicates,
information should not be withheld merely because it can be,=94 Sherwin
Siy of Public Knowledge, adding, =93there must be a compelling reason =96
beyond a mere deference to habit or protocol =96 to hide the workings of
government from the public.=94

=93If Obama trade officials follow through, it will make the government
more accountable, give the public a greater voice, and connect policy
with campaign promises,=94 said Judit Rius Sanjuan of KEI.

Present at the 19 March meeting from USTR, according to KEI=92s blog,
were Assistants Daniel Sepulveda for Congressional Affairs and
Stanford McCoy for Intellectual Property and Innovation as well as
General Counsel Timothy Reif and Chief Counsel for Legal Affairs
Catherine Field.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

Categories: Access to Knowledge, Copyright Policy, Enforcement,
English, European Policy, Lobbying, News, US Policy



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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997