by Bob Sullivan
Laptop computers examined by border guards looking for pirated software. IPods seized at airport security lines on mere suspicion of containing illegally downloaded music. Home Web users hit with the Internet death penalty -- cut off from access -- by Internet providers acting at the direction of other U.S. corporations. All because of secret trade negotiations being conducted now by dozens of nations, led by U.S. officials.
That's the doomsday scenario being painted by online civil liberties advocates who say they've been shut out of discussions that could radically alter the way consumers use technology. Supported by firms that want to protect their intellectual property rights to movies, music, books and software, the talks are designed to create an international agreement that would make stopping and prosecuting offenders much easier.
But among the most likely outcomes, warns Rashmi Rangnath of advocacy group "Public Knowledge," is a new legal regime that requires Internet service providers to become an extension of law enforcement, acting as judge and jury while punishing alleged digital pirates.
"You would have Internet providers substituting their own decisions for law enforcement decisions," she said. "The result will be an agreement ... that pushes the boundaries of what (Internet users) can't do."
Secret negotiations on what's known as the Anti-Counterfeiting Trade Agreement, or ACTA, began during the Bush administration but continue under President Obama, with the most recent meeting taking place Nov. 4-6 in Seoul, South Korea. The European Union and Canada, Japan and many other nations are participating in the talks. The U.S. Trade Representative’s office, which is leading the talks for the U.S., has argued that secrecy is standard in any international negotiation.
Legally, the Obama administration can conduct the talks without consulting Congress. While international treaties require congressional approval, trade agreements can be approved directly by the White House.
Advocacy groups are hardly alone in their concerns with the talks. Controversy around ACTA began to swell last year, when a draft proposal was leaked on the Internet. It included several controversial provisions, including the possibility of a "three strikes" rule modeled after French law, which requires ISPs to cut off Net users found to be engaging in copyright-infringing activities three times.
Clear
The steady drumbeat of opposition to the process reached the U.S. Senate last week, when Sens. Sherrod Brown, D-Ohio, and Bernard Sanders, I-Vt., issued a statement urging Obama to open up the process.
"The public has a right to monitor and express informed views on proposals of such magnitude," the two senators wrote in a letter to the president. "We firmly believe that the public has a right to know the contents of the proposals being considered under ACTA, just as they have the right to read the text of bills pending before Congress."
While efforts to enhance intellectual property law enforcement are supported by many large firms in the music, software and video industries, corporations are not unanimous in their support. On Monday, a trade group for European Internet Service Providers issued perhaps the most vocal repudiation yet of the negotiations. EuroISPA issued a statement (PDF) indicating its concern that the dramatic enforcement measures being considered would attack civil liberties without denting piracy much.
Herbbox"Such heavy-handed measures would create a serious danger of undermining and restricting the open innovative space that lies at the very heart of the Internet's success," said the statement, signed by EuroISPA's president, Malcolm Hutty. "This agreement would have a negative impact on Internet users without having an appreciable impact on fighting illicit use of copyrighted material."
Experts consulted, sworn to secrecy
Earlier this year, the U.S. Trade Representative made efforts to open up the process, releasing some meeting notes and inviting a small group of U.S. experts to see the proposed new rules and offer commentary.
But underscoring the secrecy of the discussion, the experts were forced to sign a non-disclosure agreement. Then, the U.S.T.R. refused requests to reveal the identities of the participants, saying that releasing the names would compromise national security. The list was released only after a Freedom of Information Request filed by advocacy group Knowledge Ecology International.
The vast majority of participants in the review represented large corporations such as Google and News Corp., or corporate interest groups like the International Intellectual Property Alliance. Six participants represented civil liberties interests were also invited.
Rangnath and her Public Knowledge colleague Sherwin Siy were two of the six. In an interview with msnbc.com, they were severely limited in their ability to answer questions. Rangnath said she was shown a portion of the draft agreement during a one-hour meeting with U.S. officials, but wasn't allowed to copy any of the documents and was told a subsequent version would likely differ from what she was shown.
Asked if the experience made her more or less concerned about the implications of the agreement, she said only, "I don't think I can answer that."
Web users could be cut off
While Siy said some doomsday concerns, such as manual border searches of laptop computers and MP3 players, were likely impractical, Internet death penalties were a real possibility. U.S. law currently offers broad protection for Internet providers when illegal activity occurs on their networks outside their knowledge. But an international agreement could lead to additional "third-party" liability for companies that handle Web traffic. The mere threat of increased liability from such a trade agreement could be enough to have a severe chilling effect on Internet users, he said.
"An ISP coming under real legal pressure, a change that makes it easier for someone to plausibly sue (an ISP) for billions of dollars ... what risk-averse company is going to risk a 2 percent chance of a $100 billion suit?" he said. Instead, ISPs would readily side with rights holders over users, he said.
There is already disturbing precedent for blunt use of copyright enforcement tools, he said, with outcomes that should give negotiators pause. Just last month, an entire Ohio city's free municipal WiFi was shut down after Sony Pictures complained that the network was used by someone to download a pirated movie.
It's unclear if such enforcement would be continued, or enhanced, by ACTA, because so little is known about the content of the draft agreement. But based on the leaked document, Kimberlee G. Weatherall, a professor at the University of Queensland in Australia, issued a paper last year summing up the provisions (PDF).
Among the possibilities she inferred from the leaked document:
1. An extension of criminal liability by redefining what counts as copyright infringement on a "commercial scale." Most nations’ laws treat possessors of pirated goods differently than those who pirate for profit. A broader definition could land more consumers in criminal, rather than civil, courts.
2. The imposition of "deterrent-level" penalties, which could ratchet-up punishments.
3. Provisions in the agreement that would require ISPs in to actively police copyright infringement on their services
4. Additional burdens on ISPs, such as use of filters that would prevent sharing of copyright-protected materials.
5. Possible seizure and destruction of intellectual property rights “infringing goods" such as tools to mass-produce movie DVDs. This section, she writes, has given rise to fear that border guards will have the authority to seize and destroy laptops and iPods.
Weatherall writes that inclusion of such measures in the agreement could effectively create new laws outside of member nations’ legislative processes, she said.
"Such provisions have not been enacted internationally, they do not represent a consensus approach; they have been actively opposed in many countries," she wrote. "This would, in fact, be lawmaking by treaty-making."
Siy and Rangnath said the U.S.T.R.'s office assured them that nothing in the agreement will go beyond powers already afforded to authorities and it won't "change U.S. law." But the vagaries that already exist in provisions like the Digital Millennium Copyright Act -- thorny issues involving emerging new technologies that are constantly being decided by U.S. courts -- could mean ACTA would end up extending U.S. law anyway. Worse, future changes to digital U.S. law might not be possible without consulting nations that sign the ACTA.
International agreements are also poor tools for enforcing copyright law, which requires a great deal of “finesse,” Siy argued. For example, possessing child pornography is illegal. But possessing an electronic copy of a movie, song or book is often legal – its use determines its legal status. While a second copy of a book for personal use might be allowed, for instance, a second copy e-mailed to a friend might not.
So far, intellectual property rights holders and U.S. courts have yet to demonstrate the ability to consistently employ such finesse, he said. International agreements governing such situations would likely exacerbate the problem. That's why all interested parties should be able to debate potential impact of ACTA in the open, Siy said.
"Nuances with internet infringement should be taken into account as we try apply copyright laws," he said. "That's why transparency is goal number one here, but it's not the final goal. We want to roll up our sleeves and get into the muck of dealing with this. That's the important work."
