Obama administration says treaty text is state secret

By , IDG News Service |  Legal, intellectual property

The Office of U.S. Trade Representative (USTR), part of President Barack Obama's office, has denied a company's request for information about a secretive anticounterfeiting trade agreement being negotiated, citing national security concerns.

The USTR this week denied a Freedom of Information Act (FOIA) request from Knowledge Ecology International, an intellectual-property research and advocacy group, even though Obama, in one of his first presidential memos, directed that agencies be more forthcoming with information requested by the public.

The USTR under Obama seems to be taking the same position about the Anti-Counterfeiting Trade Agreement (ACTA) as it did under former President George Bush, that the treaty documents are not open to the public. One of Obama's campaign promises was to make government more open and responsive to the public.

The USTR, in a letter to Knowledge Ecology International's director James Love, said information in ACTA, an anticounterfeiting and antipiracy pact being negotiated among the U.S. and several other nations, is "properly classified in the interest of national security."

Critics of the secrecy say the treaty could have a major impact on the way the U.S. enforces intellectual-property law, including the potential for U.S. law enforcement agencies arresting U.S. residents for breaking other countries' IP laws.

Love asked for seven documents in his FOIA request.

"The texts are available to the Japanese government," he wrote in a column on HuffingtonPost.com. "They are available to the 27 member states of the European Union. They are available to the governments of Canada, Mexico, New Zealand, Australia. They are available to Morocco, and many other countries. They are available to 'cleared' advisers (mostly well connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries. But they are a secret from you, the public. "

Two digital rights groups, Public Knowledge and the Electronic Frontier Foundation (EFF), have a pending lawsuit against USTR for its denial of their requests for information on the trade pact. That lawsuit, dating back to the administration of former President George Bush, has been stayed until June 30 as both sides wait on FOIA guidance from new U.S. Attorney General Eric Holder.

Obama gave Holder the task of laying out the ground rules related to the president's Jan. 21 FOIA memo, which instructed agencies to presume that information requested by the public should be released, unless there are compelling reasons not to.

EFF is unsure when Holder will issue his guidelines, said David Sobel, a senior attorney there. "I don't think the new FOIA policy and the commitment to openness has really percolated through the agencies," he said. "I'd like to believe the new administration is going to use that time to rethink its position."

Public Knowledge is "disappointed" in USTR's continuing decision to withhold documents about ACTA, said Art Brodsky, spokesman for the group.

ACTA could include an agreement for the U.S., Canada, the European Commission and other nations that are part of the talks to enforce each other's intellectual-property laws, with residents of each country subject to criminal charges when violating the IP laws of another country, according to a supposed ACTA discussion paper posted on Wikileaks.org in May.

The document posted on Wikileaks also talks about increasing border searches in an effort to find counterfeit goods, encouraging ISPs to remove online material that infringes copyrights, and increasing cooperation in destroying infringing goods and the equipment used to make them. Wikileaks is a site that posts anonymous submissions of sensitive documents.

Among the supporters of ACTA are the Business Software Alliance and the Recording Industry Association of America.

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