The Anti Counterfeiting Trade Agreement may be place by the end of 2008

DailyTech was among the first to break news of the Anti Counterfeiting Trade Agreement.  The international agreement, to which details were being ironed out, would demand investment in large policing organizations to "bust" those who download and share music and movies.

The bill was well received at the G8 meeting, the meeting of the world's largest economic superpowers which takes place each July.  The G8 published a document entitled "Declaration on the World Economy".  The document contains a section "Protection of Intellectual Property Rights", which contains the following update on the status of the ACTA legislation:

We encourage the acceleration of negotiations to establish a new international legal framework, ACTA, and seek to complete the negotiation by the end of this year.

Thus it appears that ACTA may be set in place by the end of the year.  The new policy allows random warrantless search and seizures at the border.  Under ACTA, border patrol agents will be able to seize peoples’ laptops, iPods, and other electronics which they suspect contain illegally-obtained media.  If the border patrol thinks they've found such media on the devices, they are authorized to destroy them at their discretion.

The law may affect many due to the heavy prevalence of file sharing and other forms of copyright infringement in the U.S. What may surprise some, however, is that such seizure provisions are already in place albeit in a different form.

Recently released information reveals that the Department of Homeland Security has been granted the power to without any suspicion of wrongdoing seize travelers’ "device(s) capable of storing information in digital or analog form," including “hard drives, flash drives, cell phones, iPods, pagers, beepers, and video and audio tapes" as well as "all papers and other written documentation."  After seizure, the materials may be taken off site.  The contents of the laptops can then be shared with other agencies and/or private entities for language translation, data decryption or other reasons.

The policies were apparently put in place July 16 by two DHS agencies: U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.  They have existed in a similar, but undocumented form previously.  Interestingly, while the policy contains provisions to protect business information and attorney-client privileged material, they have no provisions to protect personal medical records or other personal data like financial records.

Privacy advocacy groups are outraged and considering legal action.  "They're saying they can rifle through all the information in a traveler's laptop without having a smidgen of evidence that the traveler is breaking the law," said Greg Nojeim, senior counsel at the Center for Democracy and Technology.

Some in the U.S. government are condemning the privileges and demanding a probe into whether the government is using its power to abuse citizens’ rights.  They argue that just cause, one of the foundations of the U.S. government is being trampled.  "The policies . . . are truly alarming," said Sen. Russell Feingold (D-Wis.).

Sen. Feingold will soon be proposing legislation to require reasonable suspicion at border searches and ban profiling based on race, religion or national origin, which is thought to occur.

On the other side of the fence is the Department of Homeland Security which argues that the measures are necessary to protect against terrorism.  Customs Deputy Commissioner Jayson P. Ahern stated that the policies "do not infringe on Americans' privacy."  He argues that the policy predates the war on terror, stating that the government has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drug traffic and transportation of other contraband.

Homeland Security Secretary Michael Chertoff voiced his opinions in support of the bill in a strongly worded editorial in USA Today, in which he says that the searches have "violent jihadist materials" as well as child porn.  He also argues that "the most dangerous contraband is often contained in laptop computers or other electronic devices."

He says unfortunately, travelers themselves cannot be detained without suspicion, stating that "as a practical matter, travelers only go to secondary [for a more thorough examination] when there is some level of suspicion."  He, however, warned, "Yet legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."

Those looking to challenge the policies in court will have a tough road ahead.  The seizures without suspicion were upheld in the U.S. Court of Appeals for the 9th Circuit in San Francisco, setting a legal precedent.

"A politician stumbles over himself... Then they pick it out. They edit it. He runs the clip, and then he makes a funny face, and the whole audience has a Pavlovian response." -- Joe Scarborough on John Stewart over Jim Cramer

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