Piracy pseudo-treaty may get the ax when the June vote arrives; privacy concerns abound

For all the fuss and commotion surrounding the near-passage and subsequent nosedive of the U.S. House of Representative's "Stop Online Piracy Act" (SOPA) (H.R. 3261) and the U.S. Senate's Protect Intellectual Property Act (PIPA), many believe that the U.S. and other nations are on the verge of embracing a far more Orwellian mandate in the name of fighting those pesky pirates -- the Anti-Counterfeiting Trade Agreement (ACTA).

I. ACTA -- A Gateway to Oppression?

ACTA deals in both digital and physical piracy.  Some of its provisions apply to things such as counterfeit pharmaceuticals or imposter parts.  But the majority of its controversial sections apply to policing the internet

The key word in the title Anti-Counterfeiting Trade Agreement is "agreement".  ACTA is not a treaty nor a law, although it seeks to assume powers typically only granted to such legislative instruments.  Firmly supported by President Barack Obama, the bill was long kept secret from the public with drafts only available thanks to Wikileaks.

Big Brother
A series of leaks forced the Obama administration to revise its big-media-friendly ACTA proposal several times.  Now the administration is pushing the EU to sign.
[Image Source: Security Blog]

In April 2010, a public draft finally aired, trimming some of the more severe provisions  of early drafts like mandatory three strikes internet blacklisting for pirates, arbitrary device seizures by border patrol agents, and charges for "imminent infringement" (a form of thought-crime consisting of charging people for merely visiting a known piracy site, under the assumption that they were likely to pirate next).  Still the draft has drawn substantial controversy, even as it's gone through subsequent revisions to soften the blow.  Many take issue with the fact that the Obama administration claims the Prioritizing Resources and Organization for Intellectual Property Act of 2008 gives ex ante approval to the bill.

So far the Obama administration has joined with a handful of other top nation-states -- Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea -- to embrace the measure.  But the proposal's ultimate retention or abandonment may hinge on the biggest nation bloc to not yet sign on the dotted line -- the European Union.

II. EU Leans Towards Rejection

The EU will deliver their ACTA verdict in June.  But things aren't looking good for the agreement.  Thus far only 22 out of 27 member states have signed the treaty.  Notable abstainers include Denmark and Germany, where waves of protests have swayed the government to reconsider the pact, its high sticker cost, and its potentially ruinous privacy implications.

As a lead up to a full fledged examination by the European Court of Justice, as ordered by the European Commission following member complaints, the assistant European Data Protection Supervisor (EDPS) Giovanni Buttarelli delivered a 20 page analysis of the tenative agreement.

The review was a mixed bag for ACTA's proponents.  In it Mr. Buttarelli writes, "the monitoring of user's behavior and of their electronic communications on the internet [could be] highly intrusive to the private sphere of individuals and, if not implemented properly, may therefore interfere with their rights and freedoms."

EU flags
The EU is weighing the cost of ACTA to freedoms. [Image Source: AFP]

Supporters will likely interpret the criticism as a request to reword the document yet again, in hopes of placating fears of a 1984 or V is for Vendetta-like blanket of ubiquitous government surveillance.

With the abstainers agreeing to make a final decision in June, European Commissioner for Digital Agenda, Neelie Kroes, sounded decidedly pessimistic about passage prospects, commenting that EU citizens would "likely to be in a world without SOPA and without ACTA".  Ms. Kroes -- perhaps best know for her epic antitrust fines of Intel Corp. (INTC) and Microsoft Corp. (MSFT) -- called on member states to "find solutions to make the Internet a place of freedom, openness, and innovation fit for all citizens."

She says the EU must tread a fine line between freedom and anarchy, commenting, "Yes the Internet should be open; and yes it should be free. But that is not the same as being a lawless wild west."

In responses to widespread public protests by Anonymous and other activist groups in the region, Ms. Kroes remarks, "This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject."

III. If No ACTA, What's Next for the EU

One compelling reason why the proposal may stall is simply money.  While big media commands a deep-pocketed influence on EU politicians, much as it does in the U.S., the EU is also on the verge of a second dip in the cesspool of recession.  An expensive proposal to police citizens comes at an especially inopportune time for a cash-strapped EU.

The question facing Europe is what's next, assuming ACTA fails.  On the one hand, the EU is home to some enforcement extremists, such as the copyright commission chief at the European Commission, Maria Martin-Prat.  Ms. Martin-Prat had previously worked for the International Federation of the Phonographic Industry -- parent organization of the Recording Industry Association of America (RIAA), Canada's CRIA, and Britain's BPI.  While with the IFPI she focused her efforts on promoting digital rights management and on outlawing users' rights to creating backup copies of content they legally own.

ACTA opponents
Europe is a land of diverse opinions regarding how to "treat" the piracy issue.  
[Image Source: Otto de Voogd/Flickr]

On the polar opposite end of the spectrum are politicians like Liberal Dutch MEP Marietje Schaake and Swedish Pirate Party MEP Christian Engström, who openly support movements like Anonymous and the Pirate Party.  These figures accuse current leadership of corruption and favoritism in perpetuating what they view as a broken system.  While they would ideally like to protect content creators, they argue that current laws are non-sensical, destructive, and punitive.

Which of the extremes will win out in the end remains to be seen as the copyright conflict intensifies.

Sources: Europa [1; EU Press Releases], [2; PDF], [3; Press Release]

"A lot of people pay zero for the cellphone ... That's what it's worth." -- Apple Chief Operating Officer Timothy Cook

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