Will secret copyright treaty restrict your digital rights?

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Most Americans expect that their laws are only passed after some period of public debate between Republicans and Democrats or their news-channel proxies. However, the Anti-Counterfeiting Trade Agreement (ACTA) may be an exception to this rule, and if it is signed, many United States laws concerning the Internet and ownership of data may become substantively different.

Various nations (including Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the U.S.) are said to be negotiating ACTA now, with the goal of passing a joint treaty to protect intellectual property sometime in 2010. I would like to tell you much more about what’s being written into the ACTA bill, but I can’t: the contents of the treaty are secret. What we know about it is pretty much based upon leaks of earlier documents, and heavily redacted versions which were ferreted out under the guise of national transparency laws. The University of Ottawa requested the text of the bill, and received a document with everything blacked out except the title. The Electronic Frontier Foundation received a copy with 159 pages intact, but an additional 1,362 pages redacted with the claim that the contents were crucial to national security.

What has been leaked is disturbing. Some reports state that customs officials at international borders would be empowered to search the contents of your laptop, cell phone, and iPod under the pretense that they're looking for ripped or downloaded music and videos, with confiscation of your devices as a potential penalty. Others state that Internet providers would be required to look through the data traveling over their networks for illegal transmission of copyrighted material. Various officials have denied both claims as being part of outdated drafts of the treaty—but obviously, without access to the text of the treaty and with no news of the negotiations, there’s no way to confirm any of this without waiting for a fait accompli announcement.

Civil libertarians (a group of which I’m a member) are disturbed by the treaty for obvious reasons, but there’s another issue at work here which should be of interest to anyone who uses a computer or the Internet. There are many people in media industries and law enforcement who think it would be much easier to police the world, if only there were One True Digital Rights Management Scheme to keep people from copying data they shouldn’t.

On the other hand, DRM tends to break stuff and has already been dumped by the music industry—but alive and well in the realm of digital video. Moving and transforming data is central to how we live today; technological or legal restrictions on moving data result in a different way of living with our data. Especially when someone suspects that the data in question isn't ours.

On to a short course in international law. Under the U.S. Constitution, when American representatives sign a treaty, it must be passed in the Senate; afterward, the language of the treaty has the force of law in the United States. However, some treaties can be negotiated under “fast track” authority, which essentially states: “if the President and the Executive branch have the authority to implement the treaty without Congressional action, they have the authority to sign the treaty.” (Lawyers, please note: I am not one.) If it later becomes necessary to pass a U.S. law to conform to the terms of the treaty, it’s pretty much a given that the treaty’s language is going to form the baseline of its text; make too many changes, and you have to send your diplomats back to the negotiating table.

ACTA is being negotiated under the fast-track authority, which means that it could be signed and enforced with the only notice being a buried headline in the New York Times. The EFF has published a law journal article with four extremely abstruse recommendations for how to open up the process to democratic debate; I recommend it to anyone who can make heads or tails of a law journal article.

For everyone else, though, it’s probably a good time to pay attention, and perhaps make some noise. Ironically, it’s going to be very difficult to report more on ACTA here, because so few facts are being leaked; I can report the process as news, but followup articles are hard to write without relying on rumor and innuendo. So get in touch with groups like the EFF which are lobbying on the issue, and perhaps read Boing Boing (where Cory Doctorow can be counted upon to provide up-to-the-minute coverage and leaks in informative but apocalyptic style). Call your Congresspersons and let them know you’re fond of the Internet and how it works. (Residents of Alaska, please note: Ted Stevens is not your Senator any longer, so it’s no longer a series of tubes.) Secret laws and closed-door negotiations have a track record of working well only when citizens are too apathetic or distracted to care much; if this is an issue that concerns you, let people know.

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