Worries about the Anti-Counterfeiting Trade Agreement (ACTA) currently being drawn up in secret by the Bush administration are sometimes portrayed as "Chicken Little" concerns. Certainly, the US Trade Representative's office tried to ease everyone's mind last week with a public meeting about the treaty's progress, but it's not just digital rights groups like the EFF and Public Knowledge that are staring in horror at the sky. Even Congressional backers of the PRO-IP Act are demanding that ACTA be slowed and that a final agreement not include ISP or DRM provisions.
In a letter sent to Susan Schwab, the US Trade Representative, Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) laid into the ACTA negotiating process. "We strongly urge you not to permit the agreement to address issues of liability for service providers or for technological protection measures," says the letter. "As technology is not static, Congress must have the ability to tailor the law as developments warrant."
US Trade Rep Susan Schwab
Most of the concerns are about the limits ACTA could put on "Congress's ability to make constructive policy changes in the future." But the concerns are compounded by "the lack of transparency inherent in trade negotiations" and the "speed with which the process is moving."
ACTA negotiators have previously announced that they want an agreement concluded by the end of this year, but in last week's meeting appeared to back up from that aggressive timetable. It's not clear why the speed is necessary, though it may be related to the end of the Bush Administration and the possibility that a new president could alter the course of negotiations.
The letter is notable for coming from Leahy and Specter; the two lead the Senate Judiciary Committee and have long supported strong intellectual property rights. Leahy, in fact, was the sponsor of the "Enforcement of Intellectual Property Rights Act of 2008," which passed the Senate recently after a name change (it's now known as the PRO-IP Act).
It's not clear that Leahy and Specter are against any of the items suggested for ACTA by various rightsholder groups, but the two senators are quite concerned that ACTA not limit Congressional power to adapt laws to circumstances. The cynical among us might see the letter as little more than an attempt to preserve personal power—that is, a battle of fiefdoms more than content. Whatever the motive, though, the concerns of two powerful lawmakers at least legitimize many of the worries about ACTA.
When the agreement is complete, the two senators hope it includes only "improved coordination among nations" and "robust, but flexible standards for civil criminal, and border enforcement." Too bad for the content owners who wanted ACTA to deal with mod chips, camcording in theaters, ISP filtering, warez, and "three strikes" rules—though we won't know for months whether ACTA negotiators took the senators' advice.
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