Secret agreement may have poisonous effect on the net


WIRED:Thanks to a shady backroom deal, the Anti-Counterfeiting Trade Agreement may have the power to regulate the net

THESE DAYS, when I’m thinking whimsically, I imagine international politics as a multilayered tower of bureaucracy, instead of a Tower of Babel. Each level rests on the one below, with very few ladders between the levels.

The people at the top can essentially do what they want while depending on, but paying little attention to, those at the bottom. And the Anti-Counterfeiting Trade Agreement (Acta), a little-known but poisonous secret agreement currently being negotiated among nations, must be at the very top of that unaccountable pyramid.

The Acta, as the name suggests, started out as a transnational agreement to deal with fake products being exported from one country to another: customs checks for fake Rolexes, shoring up protections against threats of dodgy medicine, etc.

As of last week, it has expanded to cover the internet – a backroom deal to regulate the one thing bigger than any single country.

There is really no accountability to speak of regarding what goes into the Acta. Not only can you not write a letter to the Acta negotiators, you can’t see what they’re talking about, nor can your local representative politician. The Acta represents the highest level of abstraction away from the democratic process imaginable.

Think of it this way. You can probably get hold of your local councillor. But it’s pretty hard for the average person (even one knowledgeable in their domain) to lobby a TD without some effort. It’s harder to reach into the Government, and harder still for one person to make an impact in Brussels, and with MEPs.

The European Parliament has been demanding access to the Acta documents for more than a year. No one will hand them over.

I used to think the most isolated, most unaccountable, most undemocratic figures on the tower of bureaucracy were delegations at international organisations such as the World Intellectual Property Organisation (Wipo) and the World Trade Organisation (WTO). At these organisations, treaties are hatched at the highest level and then handed down to individual parliaments for rubber-stamping.

But you can at least get “observer” status at the Wipo, and speak on behalf of “civic society”. You can, at least, read about WTO agreements in the papers. The chances are that a politician or two in the US state department is paying attention to what’s going on at the WTO and Wipo.

But when lobbyists proposed that the Acta include provisions that would affect the liability of companies such as YouTube and Flickr; when the European Commission suggests that “three strikes” termination policies (where you can be thrown off the internet for just the accusation of copyright infringement) might be included; when the worst parts of the US’s Digital Millennium Copyright Act (DCMA) can be transplanted to any other country signing this agreement; when all of these things happen, no politician or elected official or even dotcom company gets a direct voice in the process.

The Acta is closed and secretive, even by the standards of the WTO or Wipo (indeed, the US and Canadian delegations even admit that it was invented to evade the kind of oversight the Wipo has recently seen). All of those proposals I’ve listed maybe in the text, but we don’t know. We only know they were even proposed because someone leaked a copy of a memo summary written from an oral discussion by European and US officials, dating from a few months back.

It’s hard to convey just how damaging almost any of those proposals would be if they were included in the “digital environment” chapter of the Acta, as negotiated last week in Seoul, South Korea.

A shift in liability laws might mean that user-generated sites such as YouTube or FaceBook would have to transform themselves or risk being sued into oblivion. Including the three-strikes policy would take it from being a bizarre French anomaly to the universal expectation of all internet users – that they could be thrown on to an internet blacklist at the waft of an entertainment industry lawyer’s papers.

The export of the DMCA’s digital rights management rules would internationalise what most experts feel was a far too broad implementation of an old Wipo treaty text.

And because this isn’t a treaty, the chances are that it won’t even get democratic oversight when its text is finally revealed. Treaties have to pass the US Senate, but this is a “trade agreement”, so it could become law through a much less open process. And while Ireland would have to enforce it, it is being negotiated at EU level, so no Irish politician has had a glimpse of what’s being decided in their name.

The Acta should have been a public agreement with a narrow impact in an area few of us have any disagreement with: fighting counterfeit products.

Instead, it’s become a perfect place to launder dreadful internet law that wouldn’t have a chance in passing a proper legislative process.

Understanding how the world should regulate the internet should not require this level of Kremlinology to even estimate what is going on. And the laws that govern our most important communication system should be written by elected politicians, not lobbyists and bureaucrats far away from the real action in our 21st-century world.