Copyright treaty is classified for 'national security'

Weeks after President Obama said his administration would be open and transparent, it claims that a copyright treaty under consideration is "classified in the interest of national security."

Last September, the Bush administration defended the unusual secrecy over an anti-counterfeiting treaty being negotiated by the U.S. government, which some liberal groups worry could criminalize some peer-to-peer file sharing that infringes copyrights.

Now President Obama's White House has tightened the cloak of government secrecy still further, saying in a letter this week that a discussion draft of the Anti-Counterfeiting Trade Agreement and related materials are "classified in the interest of national security pursuant to Executive Order 12958."

The 1995 Executive Order 12958 allows material to be classified only if disclosure would do "damage to the national security and the original classification authority is able to identify or describe the damage."

Jamie Love, director of the nonprofit group Knowledge Ecology International, filed the Freedom of Information Act request that resulted in this week's denial from the White House. The denial letter (PDF) was sent to Love on Tuesday by Carmen Suro-Bredie, chief FOIA officer in the White House's Office of the U.S. Trade Representative.

Love had written in his original request on January 31--submitted soon after Obama's inauguration--that the 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."

The White House appears to be continuing the secretive policy of the Bush administration, which wrote to the Electronic Frontier Foundation (PDF) on January 16 that out of 806 pages related to the treaty, all but 10 were "classified in the interest of national security pursuant to Executive Order 12958."

In one of his first acts as president, Obama signed a memo saying FOIA "should be administered with a clear presumption: In the face of doubt, openness prevails. The government should not keep information confidential merely because public officials might be embarrassed by disclosure."

Love's group believes that the U.S. and Japan want the treaty to say that willful trademark and copyright infringement on a commercial scale must be subject to criminal sanctions, including infringement that has "no direct or indirect motivation of financial gain."

A June 2008 memo (PDF) from the International Chamber of Commerce, signed by pro-copyright groups, says: "intellectual property theft is no less a crime than physical property theft. An effective ACTA should therefore establish clear and transparent standards for the calculation and imposition of effective criminal penalties for IP theft that...apply to both online and off-line IP transactions." Similarly, the U.S. Chamber of Commerce has called for "criminal penalties for IP crimes, including online infringements."

Last fall, two senators--Patrick Leahy (D-Vt.) and Arlen Specter (R-Penn.)--known for their support of stringent intellectual property laws, expressed concern that the ACTA could be too far-reaching.

 

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