The Anti-Counterfeiting Trade Agreement is some sort of international treaty that around two dozen countries from around the world have signed. The stated purpose of the treaty is ostensibly to protect intellectual property rights from around the world, particularly as relate to the illegal sharing of copyrighted material online. That the government wants to police digital copyrights is certainly nothing new — it’s been going on for years. However, the difference seems to be in the scope and authority with which this treaty would allow the violations to be policed and punished.
Additionally, the treaty’s legal status is such that none of the signatories (which include major nations like the United States and the entire European Union) had a say in the construction of the terms — it was done in a closed-door, international process. What’s nice about the process so far is that the treaty has yet to be ratified by any of the signatories, so for now, it is not enforced. However, if the link above is to be believed, some ISPs are getting a head start on enacting the treaty’s terms.
The rest of this article is a list of relevant passages lifted from chapter II of the text of the treaty with some relevant commentary. It’s just unclear enough to confuse the reader yet clear enough to proscribe some pretty sketchy terms. My interpretation will hopefully clarify the legalese for those of us who prefer plain English.
Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution. (Section 2, article 11)
This portion of text is very clear: the person who is suspected of illegally downloading copyrighted material must turn over their personal information to the copyright holder — as well as the state — in the judicial process. This information includes correspondence with anyone else who might have been involved with the infringement. It’s certainly not hard to imagine a copyright holder demanding information about the infringer’s parents or significant other –wouldn’t those people logically be the most likely to know about the infringer’s misdeed?
Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its judicial authorities with the authority to act expeditiously on requests for provisional measures and to make a decision without undue delay. (Section 2, article 12, paragraph 2)
Another point of clarification: “inaudita altera parte” is a legal concept whereby judges can make legal pronouncements without the relevant people present. Essentially, this clause means that a judge have jurisdiction over evidence that may be contained on private devices. Of course, they may only hold this power when there is a “demonstrable risk of evidence being destroyed.” But a “demonstrable risk” is of course an inherently vague term, open to interpretation.
For offences specified in paragraphs 1, 2, and 4 of Article 23 (Criminal Offences), each Party shall provide penalties that include imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity. (Section 4, article 24)
The “offences specified in paragraphs 1, 2, and 4” are copyright infringements, defined in a standard sense. This treaty’s purpose is stated as deterrence — the signatories want fines to be big and crippling, so that people will be very afraid to download illegally. Of course, once again, no specific penalty is specified, leaving the numbers up to individual decisions on particular cases.
With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence, and the assets derived from, or obtained directly or indirectly through, the alleged infringing activity. (Section 4, article 25)
This one really gets to me. Legal authorities may steal anything that an individual used to commit a copyright infringement, including, I’m sure, a personal computer that nonetheless may by used for legitimate, non-criminal activities. It’s hard to imagine that this clause will not be abused in practice….
Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. (Section 5, article 27, paragraph 2)
It seems quite hypocritical for an agreement ostensibly concerned about freedom of expression, fair process, and privacy to allow the sorts of state-sanctioned invasions of privacy — and property — as described above.
A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. (Section 4, article 27, paragraph 4)
This is the big bomb that ACTA drops on us. As long as a rights-holder files their claim in a court, they may order, with the state’s sanction, that the ISP turn over private information about the alledged infringer to the rights-holder. This means that a music publishing company can acquire your personal information if they suspect that you have downloaded their material illegally, and they can do it with the full force of law. Furthermore, if a rights-holder can demand personal information from the ISP, the impetus is on the ISP to hold more personal information to cover their interests legally. This sort of data cataloguing creates numerous risks, including a greater measure of harm that can be caused by hackers who illegally access the private information files of the ISP.
Let me reiterate that this treaty does not have any legal force in any of its signatory countries. Yet. If the CNET article linked above is to be believed, then these policies will begin to have influence on July 1st of this year. That is ten days from the date of publication of this article. Your internet service providers, if this treaty is ratified, will be under enormous pressure from the state to do more to combat internet piracy, which means that they will be forced to compile more reliable information about the private browsing habits of individuals. I fear that this sort of legislation is a gateway into further invasion of privacy. The state wants to spy on your online activities to prevent you from committing crimes. What’s to prevent them from putting cameras in your homes to ensure that you do not consume illegal drugs?
We commonly hear the following justification: if you have nothing to hide, then why do you fear intrusion? It’s not the intrusion per se that we fear; it’s the fact that the state takes these liberties from us against our will. Where does one draw a line between privacy rights and enforcement of laws, if we don’t consider the line to be important at all? What’s to prevent the further erosion of rights to protect the comfort of others? I strongly urge people to be aware of these policies which loom heavily over our heads and pose a serious threat to our rights to privacy.
Anti-Counterfeiting Trade Agreement