Washington, D.C. - The Obama Administration's decision to support Bush-era concealment policies has forced the Electronic Frontier Foundation (EFF) and Public Knowledge (PK) to drop their lawsuit about the proposed Anti-Counterfeiting Trade Agreement (ACTA). EFF and PK had been seeking important documents about the secret intellectual property enforcement treaty that has broad implications for global privacy and innovation.
Federal judges have very little discretion to overrule Executive Branch decisions to classify information on "national security" grounds, and the Obama Administration has recently informed the court that it intends to defend the classification claims originally made by the Bush Administration.
"We're extremely disappointed that we have to end our lawsuit, but there is no point in continuing it if we're not going to obtain information before ACTA is finalized," said EFF International Policy Director Gwen Hinze. "There's a fundamental fairness issue at stake here. It's now clear that the negotiating texts and background documents for this trade agreement have been made available to representatives of major media copyright owners and pharmaceutical companies on the Industry Trade Advisory Committee on Intellectual Property. Yet private citizens -- who stand to be greatly affected by ACTA -- have had to rely on unofficial leaks for any substantive information about the treaty and have had no opportunity for meaningful input into the negotiation process. This can hardly be described as transparent or balanced policy-making."
"Even though we have reluctantly dropped this lawsuit, we will continue to press the U.S. Trade Representative and the Obama Administration on the ACTA issues," said Public Knowledge Deputy Legal Director Sherwin Siy. "The issues are too far-reaching and too important to allow this important agreement to be negotiated behind closed doors," he added.
Very little is known about ACTA, currently under negotiation between the U.S. and more than a dozen other countries, other than that it is not limited to anti-counterfeiting measures. Leaked documents indicate that it could establish far-reaching customs regulations governing searches over personal computers and iPods. Multi-national IP corporations have publicly requested mandatory filtering of Internet communications for potentially copyright-infringing material, as well as the adoption of "Three Strikes" policies requiring the termination of Internet access after repeat allegations of copyright infringement, like the legislation recently invalidated in France. Last year, more than 100 public interest organizations around the world called on ACTA country negotiators to make the draft text available for public comment.
EFF and Public Knowledge first filed suit against the Office of the U.S. Trade Representative in September of 2008 demanding that background documents on ACTA be disclosed under the Freedom of Information Act (FOIA). Rather than pursuing a lawsuit with little chance of forcing the disclosure of key ACTA documents, EFF and Public Knowledge will devote their efforts to advocating for consumer representation on the U.S. Industry Trade Advisory Committee on IP, the creation of a civil society trade advisory committee, and greater government transparency about what ACTA means for citizens.
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Electronic Frontier Foundation
International Policy Director
Electronic Frontier Foundation