Homeland Security’s 2008 letter to USTR: ACTA is a threat to national security

On August 7, 2008, Stewart Baker, the Assistant Secretary for Policy at the Department of Homeland Security, sent a one page letter and a three page “Policy Position on Border Measures of the Anti-Counterfeiting Trade Agreement.”

Stewart Baker was the General Counsel of the National Security Agency from 1992 to 1994, and was appointed the first Assistant Secretary for Policy at the Department of Homeland Security (DHS) by George W Bush.

In 2008, DHS was concerned that:

“some possible outcome of the ACTA negotiations may harm national security and the ability of Customs and Border Protection (CBP) to exercise managerial discretion in setting priorities for intellectual property right (IPR) enforcement.”

According to the DHS position paper on ACTA,

the proposed language on the “Border Measures” section of ACTA could codify in international law, certain provisions that would be unfavorable to CBP and, once adopted as an international agreement, even Congress would be unable to alter the rules to make them more economically justifiable. .

. . . The cost of enforcing private rights, such as trademarks, can reasonably be placed on the beneficiary. That is particularly true in a context such as this; rights holders often have a choice whether to bring enforcement actions on their own or through border measures. That choice should not be influenced by the consideration that using governmental enforcement resources will save the rights holder the cost of storing and destroying the infringing goods. For these reasons, if CBP concludes that waiving storage or destruction fees has created an unhealthy incentive to shift enforcement from the private sector to government, it should have authority to recommend that fees for storage and deconstruction be charged to the beneficiary of the enforcement action.

This section of ACTA could be interpreted as taking away that authority and protecting rights holders from measures to recover costs incurred for their benefit. This is imprudent and difficult to justify on fiscal or policy grounds.

DHS was also concerned about the impact of ACTA on “international goodwill.”

2. ACTA would expend international goodwill by requiring other governments to change organizational and legal structures.
. . .
In essence, this language would encourage foreign customs authorities to bar imports and exports if the authorities concluded on their own intiative that the goods might violate copyright or be confusing similar to trademarked goods. These are sweeping powers to act against suspected IP violators, and the powers can easily be misused either intentionally or unintentionally. Misuse could even harm small U.S. exporters competing with foreign companies favored by local governments. Generally speaking, the customs agencies of the other participating countries do not possess the same level of authority as CBP — many of them are not designated competent authorities to make determinations on IPR infringements. This substantially increases the risk that the sweeping powers wiill be misused. . . .

3. ACTA could limit CBP’s discretion in its enforcement of IPR.

. . . DHS has been fully supportive of IPR enforcement, but it does not support the U.S. Government (USG) entering into international obligations that would limit CBP’s future ability to respond to changing circumsances by reprioritizing all of its enforcement activities. In particular, the USG shoud not obligate the Department, through an international document, to pursue IPR enforcement at the expense of other seriouis enforcement priorities, and certainly not at the expense of the anti-terrorism mission of the Department. . .

. . . In managing relationships with international counterparts, DHS has and will continue to emphasize resource commitment and cooperation on priority anti-terrorism mission areas and will appropriately try to minimize expending our partner’s goodwill in areas of lesser priority.

The 2008 DHS concerns about ACTA are relevant today, both as regards ACTA, and as regards the new proposals on the same issues presented in the proposed Trans-Pacific Partnership (TPP) trade agreement, which is designed as a binding enforceable agreement.



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