The following is a letter that was sent on November 3, 2009 to President Obama, asking that the negotiations regarding ACTA be made more transparent.
For more background on ACTA and the disputes over transparency, see
- KEI website on ACTA
- October 16, 2009, White House shares the ACTA Internet text with 42 Washington insiders, under non disclosure agreements
- July 22, 2009, NGO Letter to USTR on transparency
- March 2009. Some recent news on the denial of access to ACTA documents under FOIA on national security grounds
November 3, 2009
President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. President,
We are writing to express our concerns about the lack of transparency and openness surrounding the negotiations on a new Anti-Counterfeiting Trade Agreement (ACTA). Despite its name, the ACTA is designed as a trade agreement that will cover a wide range of intellectual property enforcement issues, including norms for both governments and civil litigation, as well as criminal sanctions. While we agree that the enforcement of intellectual property rights is very important, it is also a complex area where the “solutions” to the enforcement issues are often controversial, and it is important to balance a variety of competing interests, and to ensure that measures to enforce private intellectual property rights do not undermine civil rights and privacy, or unduly impede innovation.
Unlike nearly all other multilateral and plurilateral discussions about intellectual property norms, the ACTA negotiations have been held in deep secrecy. This has led to a chorus of criticism, and demands that the ACTA process be opened up, and that documents in ACTA negotiations be disclosed, as they are routinely in intellectual property negotiations at the World Intellectual Property Organization (WIPO) or the World Trade Organization (WTO).
After a year of criticism over the secrecy of this negotiation, the White House United States Trade Representative (USTR) recently began a policy of offering some persons access to documents in this negotiation, on the condition that they sign a non disclosure agreement (NDA) that prevents any public discussion of the contents of those documents. The opportunity to see the ACTA documents under the NDA was offered to a large number of business interests, but very few public interest or consumer groups, and there were no opportunities for academic experts or the general public to review the documents.
USTR officials have indicated that this policy of access by invitation and NDA fully addresses the legitimate demands for more transparency of the negotiation, and it is being considered as a model for the future.
We are opposed to this approach because it creates a small special class of citizens who have rights superior to the majority of the population, and because it gives the government too much discretion in deciding who can monitor and criticize its operations. We have no confidence in this new approach.
Some of the people who have signed such NDAs are grateful for the chance to have had special access to some information, but they also feel constrained by the inability to discuss the contents of the documents, and are confident that nothing they have seen constitutes information that in any way would prejudice the national security of the United States if it were in fact disclosed.
In our opinion, the ACTA negotiations would not exist without the support and engagement of the U.S. government, and they are too important to continue under such questionable practices.
The only rationale for keeping the proposed ACTA text from the public is to suppress criticism and critical thinking about the norms that are being proposed. It is Orwellian and an insult to our intelligence to claim that the secrecy of the ACTA text has anything to do with national security concerns, as the term is commonly understood.
A secret process of arbitrary access, conditioned upon signing non-disclosure agreements to block public debate, does not enhance openness and transparency, and does not inspire respect for the norms that will eventually emerge.
We ask that when documents such as proposals for ACTA text are circulated to all governments in the negotiations, and when those documents are shared with dozens of Washington, DC insiders, they also be shared with everyone else.
Sincerely,
cc: USTR Ambassador Ron Kirk, Stan McCoy, Tim Reif
Department of Commerce, Secretary Gary Locke, David Kappos, Arti Rai, Susan Wilson
Department of State, Hillary Clinton, Jean Bonilla
White House, Andrew McLaughlin, Susan Crawford, Vivek Kundra, Beth Noveck, Robynn Sturm, Tom Kalil, Victoria Espinel, Aneesh Chopra
Senators Patrick Leahy, Max Baucus, Al Franken, Sherrod Brown, Bernie Sanders
Representatives Nancy Pelosi, Henry Waxman, Charles Rangel, Sander Levin
Department of Justice