Bush administration defends secrecy over anti-counterfeiting treaty

WASHINGTON--An anti-counterfeiting treaty being negotiated by the U.S. government has come under criticism from liberal groups for being negotiated "in secret" and for potentially criminalizing peer-to-peer file sharing.

On Monday, the Bush administration responded by holding a public event designed to allay fears about the so-called Anti-Counterfeiting Trade Agreement, a multilateral deal that the federal government hopes to have finished by the end of the year.

A draft of the agreement has not been released publicly, said Stanford McCoy, assistant U.S. Trade Representative (USTR) for intellectual property and innovation, because none exists yet. The United States has not even begun discussing with other countries involved certain potential elements of the agreement, he said, such as the sections that deal with the Internet.

"We have a lot of work to do," McCoy said.

The lack of public disclosure of ACTA negotiations has led two public interest groups, the Electronic Frontier Foundation and Public Knowledge, to file a Freedom of Information Act lawsuit to gain access to the contents of the agreement. At Monday's forum, those groups and representatives of Internet companies including Google argued there was a need for more public discussion and disclosure.

The ACTA Initiative, launched in October 2007, aims to build upon existing agreements to provide a legal framework for combating intellectual property rights infringement, particularly in the context of piracy and counterfeiting.

"We're doing something we haven't done in the many previous bilateral trade agreements," McCoy said. "We're weaving together commitments on the legal framework with commitments on enforcement practices."

He pointed out it is common protocol for his office to refrain from publicly discussing trade agreements under negotiation because of confidentiality agreements with trade partners.

Still, he said, "we have a clear and transparent record," noting that his office has completed about a dozen recent free trade agreements that include terms for intellectual property rights enforcement.

Consumer privacy concerns
McCoy said ACTA would focus on border measures and enforcement practices, rather than creating new regulation standards.

"We have worked out a common vision on all the substantive issues," McCoy said, citing the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, established by the World Trade Organization.

While the USTR will not release a draft of ACTA, some of the elements of the agreement that McCoy laid out mirrored an ACTA discussion paper (PDF) leaked onto the Internet, including giving law enforcement the authority to take action against intellectual property infringers without a complaint from the rights holders. (That's already the case under U.S. law, and has been for many years.)

One question that advocacy groups raised was whether U.S. citizens would be subject to enforcement of regulations not established under domestic law. Questioners at the public forum asked if U.S. citizens would be forced to turn over their laptops or music players for inspections at borders or subject to other forms of mandatory data disclosure.

"Can you assure those proposals in direct conflict with U.S. law will be rejected?" asked Eddan Katz of EFF.

McCoy answered that ACTA will focus on large-scale intellectual property infringement and "in no way requires search of personal computers or music players."

Impact on Internet companies
Representatives of Internet companies sought further clarification on the terms of the agreement that would impact their sector.

Johanna Shelton, a legislative strategist for Google, asked whether the agreement would include provisions specifying safe harbor terms for Internet companies. She also asked whether it would be consistent with U.S. law with respect to temporary copies of content.

Internet provisions should be "beyond the scope" of the agreement, Shelton said.

"We have not had any in-depth discussions about Internet-related provisions," McCoy said, though the U.S. government has had internal discussions about it. "Certainly our intention is to have an agreement fully respectful of U.S. law."

Attorney Jonathan Band, whose clients include Internet companies, said it was imperative for his industry to see a draft of the agreement because "a word here, a word there can make a difference."

He said various European regulations could be enforced to work against U.S. companies.

"We do understand some countries may go beyond the requirements in ways that are not helpful," to the United States, McCoy said, "That's a concern we have to address on a case by case, bilateral basis."

The International Intellectual Property Alliance sent a statement to reporters on Monday saying:

In the ACTA, the U.S. and other interested governments seek an agreement with provisions in three main areas: international cooperation, enforcement practices, and the legal framework for the enforcement of intellectual property rights. Given the serious global problem of copyright piracy and the need to improve effective enforcement, IIPA endorses this important initiative and looks forward to an agreement that contains high standards agreed by all the signatories. Achieving an agreement that enhances international coordination, promotes more effective enforcement, and shares ideas on best practices are essential components in the struggle against a piracy problem that knows no borders.

Participants in ACTA negotiations include the United States, Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Sinagpore, and Switzerland--even though Mexico, Korea, Canada, and some members of the EU are on the U.S.T.R.'s 301 Watch List, which monitors countries inadequately enforcing intellectual property regulations.

Representatives of the countries involved in the negotiations will meet next to discuss ACTA in Tokyo this October.

CNET's Declan McCullagh contributed to this report