White House shares the ACTA Internet text with 42 Washington insiders, under non disclosure agreements

On November 4-6, 2009, the next round of negotiations for the Anti-Counterfeiting Trade Negotiations (ACTA) will take place in Seoul, Korea. The following is another strange chapter in the secrecy surrounding this negotiation.

Background

Since ACTA was first announced, KEI has pressed the negotiating governments to provide more transparency, including recently, for example

(For more examples, search the the kei web page for acta and secret).

The USTR gives certain well connected persons access to the ACTA Internet text

KEI was surprised to learn in early September that the United States Trade Representative was using nondisclosure agreements (NDAs) to selectively share copies of the ACTA Internet text outside of the USTR formal advisory board system.

When questioned about this practice, USTR told KEI that it had "consulted with an array of experts from various IP and tech industries and associations and NGOs in the process of deliberation regarding a US proposal on one section of the agreement." According to persons who have been approached by USTR, this included the opportunity to review the texts that the United States would present at the next round of ACTA negotiation. USTR did not extend KEI an offer to view the text under an NDA.

We asked USTR for the names of the persons who had signed the NDAs and had been given access to the text. USTR declined, on the grounds that the release of the names of persons who had seen the text would undermine the national security of the United States.

On September 11, 2009, KEI submitted a FOIA request to USTR, asking for the names of persons who had signed an NDA, as well as copies of the NDA they had signed. On October 9, 2009, exactly four weeks after the submission of our FOIA request, we received copies of all of the NDAs related to the ACTA Internet text, as well as the names of 10 other persons who received the text as members of one of two USTR Advisory Boards.

The relevant clause in the NDA read as follows:

Classified Information Nondisclosure Agreement

I, __________, intending to be legally bound, accept the obligations in this Agreement in return for obtaining access to classified information. As used in this Agreement, classified information means information that has been determined under Executive Order 12958 to require protection from disclosure in the interest of national security. Classified information includes information, such as trade agreement negotiating texts, that the United States Government (USG) has provided to or received from another government or an international organization in an expectation that it would be held in confidence.

[snip]

Below are the names of persons who received the documents under the NDA, or as members of a USTR advisory board, beginning with the names of the persons who were given the opportunity, and used the opportunity, to view the text under an NDA.

Table 1: USTR says these people signed a Non-Disclosure Agreement (NDA) to see the U.S. proposed Internet text for ACTA
Name Firm Date
Emery Simon Business Software Alliance (BSA) 08/11/09`
Jesse Feder Business Software Alliance (BSA) 08/11/09
Bill Patry Google 08/11/09
Daphne Keller Google 08/11/09
Johanna Shelton Google 08/11/09
Lisa Pearlman Wilmer Hale 08/11/09
Robert Novick Wilmer Hale 08/11/09
Bob Kruger Consultant to eBay 08/13/09
Brian Bieron eBay 08/13/09
Hillary Brill eBay 08/13/09
Sarah Deutch Verizon 08/17/09
David Weller Wilmer Hale 08/17/09
Steve Metalitz International Intellectual Property Alliance (IIPA), Mitchell Silberberg & Knupp LLP 08/20/09
Veronica O'Connell Consumer Electronics Association (CEA) 08/25/09
Jim Burger Dow Lohnes, Counsel to Intel 08/27/09
Jonathan Band Jonathan Band PLLC 09/01/09
Gigi Sohn Public Knowledge 09/01/09
Rashmi Rangnath Public Knowledge 09/01/09
Sherwin Siy Public Knowledge 09/01/09
Maritza Castro Dell 09/02/09
Jeff Lawrence Intel 09/07/09
Mathew Schruers CCIA 09/09/09
David Sohn Center for Democracy and Technology (CDT) 09/22/09
Michael Pericone Consumer Electronics Association (CEA) 09/22/09
Ryan Triplette Intel 09/22/09
Janet O'Callaghan News Corporation 09/23/09
Chris Israel PCT Government Relations 09/23/09
Alicia Smith Sony Pictures Entertainment 09/23/09
Cameron Gilreath Time Warner 09/23/09
Seth Greensten Constantine Cannon LLP, for Consumer Electronics Association(CEA) 09/24/09
Daniel Dougherty eBay 09/29/09
David Fares News Corporation 09/30/09

The additional 10 persons who received the Internet ACTA text as a member of one of the USTR Advisory Boards included the following seven persons from ITAC 15 and three persons from ITAC 8:

Table 2: Persons who received the ACTA Internet text who are members of ITAC 15 - the Industry Trade Advisory Committee on Intellectual Property Rights
Name Affiliation
Anissa S. Whitten Vice President, International Affairs and Trade Policy, Motion Picture Association of America, Inc.
Eric Smith President, International Intellectual Property Alliance
Neil I. Turkewitz Executive Vice President, International, Recording Industry Association of America
Sandra M. Aistars Assistant General Counsel, Intellectual Property, Time Warner Inc.
Stevan D. Mitchell Vice President, Intellectual Property Policy, Entertainment Software Association
Thomas J. Thomson Executive Director, Coalition for Intellectual Property Rights
Timothy P. Trainer President, Global Intellectual Property Strategy Center, P.C., Zippo Manufacturing Company

Table 3: Persons who received the ACTA Internet text who are members of ITAC 8 - the Industry Trade Advisory Committee on Information and Communications Technologies, Services, and Electronic Commerce
Name Affiliation
Jacquelynn Ruff Vice President, International Public Policy, and Regulatory Affairs Verizon Communications Inc.
John P. Goyer Vice President, International Trade,Negotiations and Investment, U.S. Coalition of Service Industries
Mark F. Bohannon General Counsel and Senior Vice President, Public Policy, Software and Information Industry Association

The day the USTR sent KEI the FOIA with the names of persons signing the NDA, the following memo was also sent to selected news organizations.

USTR NEWS

UNITED STATES TRADE REPRESENTATIVE

www.ustr.gov Washington, D.C. 20508 202-395-3230

MEMORANDUM

TO: Reporters and Editors
FROM: Carol Guthrie, Assistant USTR for Public and Media Affairs
DATE: October 9, 2009
RE: Update on USTR Preparation for Upcoming ACTA Round

The next round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations will be held in Korea in the first week of November 2009. Today USTR is releasing the draft agenda for that meeting, which will cover enforcement procedures in the digital environment, criminal procedures to deal with counterfeiting and piracy, and transparency issues. The draft agenda can be found on the ACTA page of the USTR website here.

In preparing for this upcoming round of ACTA negotiations, USTR has broadened its consultations to include a diverse range of views including not only the cleared advisors who give input to USTR on a regular basis on intellectual property matters, but also to interested domestic stakeholders representing a broad range of views and expertise on internet and digital issues, including representatives from non-governmental organizations (NGOs) and industry leaders in intellectual property and technology.

The input of these additional domestic stakeholders has been crucial for USTR in preparing for the complex nature of these upcoming discussions, where USTR will be pressing for provisions that strengthen the ability of governments to deal with the serious issue of internet piracy, while at the same time ensuring that the balance of rights and limitations and exceptions found in US law is also reflected. In order to increase transparency while still maintaining confidentiality, these individuals were asked to sign non-disclosure agreements before viewing the current ACTA text or giving input to USTR. USTR strives to be as open and transparent as possible to the American public while also maintaining the ability of ACTA negotiating partners to engage in the frank exchange of views necessary to reach agreement on complex issues.

BACKGROUND

Negotiations on the ACTA began in June 2008. The objective of the ACTA negotiations is to create a new, state-of-the art agreement to combat counterfeiting and piracy. The United States has been working with several trading partners, including Australia, Canada, the European Union and its 27 member states, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland, to negotiate the agreement. When it is finalized, the ACTA is intended to assist in the efforts of governments around the world to combat more effectively the proliferation of counterfeit and pirated goods, which undermines legitimate trade and the sustainable development of the world economy, and in some cases contributes to organized crime and exposes American consumers to dangerous fake products.

The U.S. approach to the legal framework provisions of ACTA has been to view the IPR enforcement provisions of recent U.S. free trade agreements as a model. Members of the public with questions about the status of the negotiations should contact Kira Alvarez, Chief Negotiator and Deputy Assistant U.S. Trade Representative for Intellectual Property Enforcement at (202) 395-4510.

###

The following is an October 13, 2009 statement by Sherwin Siy of Public Knowledge, a group that received copies of the text:

Our first exposure to any text was on fairly short notice. We were allowed to view a draft of one proposed section as we sat in a room at USTR with some of its negotiators and counsel. We were not allowed to take any copies of the text with us when we left the meeting about an hour later.We were urged to keep any notes we took secure, and not to discuss the substance of what we saw unless USTR confirmed that the other party had also seen the text. The meeting proceeded with USTR discussing each point of the text in turn as we viewed it for the first time and compared the text to existing statutes, trade agreements, and treaties.

We were invited to set up additional meetings or call USTR to confirm our recollections if we wanted to verify what we remembered from the meeting, as we were not allowed to photograph, scan, or (presumably) transcribe the documents. We were told that some edits might be made in the near future to account for various concerns.

A meeting a few weeks later convened a range of people who had been cleared to see the text, and functioned as a roundtable, at this meeting, a slightly altered version was shown, which in some areas was slightly better, in some slightly worse, but without some of the most troubling aspects resolved.

While we appreciate USTR's recognition that increased participation is important, and its efforts in that regard, this process is still miles away from anything approaching real, public transparency. In terms of openness, a lot of the tension between what USTR says it wants to do and what has been done so far seems to come from the characterization of ACTA as a trade agreement, when its aims seem considerably broader than that. If we're going to be seeing a new kind of trade agreement that more broadly affects policy and legal interpretation, we're going to need a new, more open kind of process that lets the public see what agenda its government is pushing.

Analysis

USTR told KEI the new policy of giving access to documents to a selected group of people meets the promise by the President to be transparent. We were told that everyone who needed to see the documents has seen them. Outside of Public Knowledge and CDT, everyone who received the documents was representing a large corporate entity, including several foreign owned publishers. USTR does not think that KEI needs to see the documents. USTR certainly does not think the broader public should see the documents. The handful of people who did see the documents cannot say what they saw.

The following is a statement on USTR NDA policy by Robert Weissman, President of Public Citizen:

There is a strong presumption in US law favoring openness of government documents for a reason: People have a right to know what their government is doing, not just some people, not even government-chosen representatives of the people. It is self-evident that ad hoc processes to choose a few public interest representatives to comment on material, to counterbalance the broad sharing of the material with a wide swath of self-interested corporations is a deeply flawed process. Public interest groups have different interests, orientations, conflicts and areas of expertise. Worst of all in this process is the conceit that USTR should be selecting who sees policy proposals that will have far-reaching and long-lasting effect on how information and knowledge is shared (or enclosed and monopolized) around the world. This should be part of an open and public debate, full stop.

The following is the KEI statement on the USTR policy:

USTR has decided that the views of the public are unimportant. The use of non-disclosure agreements to this hand picked group is an insult to any pretense of openness. Apparently everyone representing a giant corporation, including foreign owned publishers, could see the text through an NDA. No academic experts were consulted. Among the many civil society groups that pressed USTR to disclose the text, only Public Knowledge and CDT were given access, and both groups are bound by the NDA to not discuss the contents.

KEI was not offered access to the text under an NDA, and we would not have signed an NDA if we had had the chance. The White House needs to make the ACTA texts public, so that everyone can read them, and speak freely about them.


Other reports:
KEI FOIA requests for information about the NDA policy are available here.
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