Homeland Security: ”ACTA Negotiations May Harm National Security”

Was the Anti-Counterfeiting Trade Agreement (ACTA) a national security risk in 2008? According to one letter sent by the Department of Homeland Security, it potentially was.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

With the overwhelmingly large story of Sony’s PlayStation Network being the major story of the week, even the ACTA story is starting to seem like a small issue in comparison these days. Still, there was a rather interesting development recently.

KEI Online, one of many organizations following the ACTA story, received a rather interesting batch of information last week. This was in regards to ACTA way back in 2008. Back then, was just surfacing as a news story. If it wasn’t the largest story of 2008, it certainly was right up there.

When ACTA was first being discovered, it was also in its worst form. The treaty had a global three strikes law, demanded that all laptops, cell phones, MP3 players and other digital storage devices be seized at borders to checked for potentially infringing or “confusingly similar” content and also had DMCA-style anti-circumvention provisions. What was worse was the fact that these negotiations of the agreement were entirely secret. The only reason ACTA was even known at the time was because Wikileaks blew the lid off the agreement. Who knows what the agreement would have looked like had global outrage not been directed at the negotiations when the agreement was leaked.

There are many criticisms of ACTA. One of these criticisms was that this would be a national security risk. Indeed, ACTA had a three strikes provision (AKA graduated response) in it at one point. Such a law was very concerning to the intelligence community as seen in France when the NSA “yelled” at France for imposing a three strikes law. Since ACTA had a three strikes law as well, it’s not difficult to imagine that the same criticism could have been levelled against it while it still had that provision in the text.

With the three strikes provisions more or less removed from ACTA, is ACTA still a national security risk? Homeland Security might say so.

Acording to documents recieved by KEI Online as part of a Freedom of Information Act request, back in 2008, the Department of Homeland Security sent a letter (PDF) to the US ambassador expressing concerns over the ACTA negotiations. The concern specifically was about border security under ACTA. Why is border security named a concern? It was all about priorities of border security – namely, the priority Intellectual Property Enforcement in relation to other national security threats.

For those like us who watched the ACTA debate from the beginning, this actually makes a lot of sense. If you read ACTA, there are plenty of lines in ACTA detailing how border security would tighten to fight copyright infringement. There would be an emphasis of seizing anything deemed suspicious. Suspicious items would be stored for evidence against anyone potentially importing infringing material to another country. The question is, where would all the extra resources come from to do all of this? Not exactly clear – at least, at the time.

What is more substantial about it was when this letter was sent – August 7, 2008. This was a little over a month before the stock market crashed. In other words, even before governments around the world including the US was considering tightening the belt and even before George W. Bush sent out the first bailout. If Homeland Security was concerned about limited resources then, one can only imagine how those concerns are affected now that spending is the subject of cuts these days. A quick look for budget cuts to Homeland Security yield results. It’s not hard to see Homeland Security having less resources now than when that letter was sent.

In short, it sounds like ACTA is wanting to get Homeland Security to do more with less resources. So, it’s not hard to see why making more demands on border security would potentially put national security at risk. Knowing this, it’s not hard to envision the Department of Homeland Security (DHS) having a similar position now to the position expressed in this paragraph in the letter then:

The United States Trade Representative (USTR) is leading an effort, co-sponsored by the Government of Japan (GOJ), to negotiate a multilateral Anti-Counterfeiting Trade Agreement (ACTA). The U.S. Department of Homeland Security (DHS) supports this effort, but is concerned that some possible outcomes of the ACTA negotiations may harm national security and the ability of Customs and Border Protection (CBP) to exercise managerial discretion in setting priorities for intellectual property-right (IPR) enforcement.

It sounds like there is a choice between big national security risks and counterfeiters, especially after this paragraph:

Given these significant concerns, DHS suggests that, as ACTA is reduced to a written proposal, a preamble be included in the proposal clearly stating that ACTA does not obligate the U.S. government (or other nations) to act in any way that might infringe on national security priorities.

KEI had an additional interesting comment on this:

The 2008 DHS concerns about ACTA are relevant today, both as regards ACTA, and as regards the new proposals on the same issues presented in the proposed Trans-Pacific Partnership (TPP) trade agreement, which is designed as a binding enforceable agreement.

I certainly agree that there is something disturbing about choosing corporate interests over issues of national security. If we start getting to the point where public safety is second only to what organizations like the RIAA wants, I think we’ve gone way too far in this whole war on copyright infringement.

Does the DHS raise a valid point on ACTA and does it hold true to this day to you?

Drew Wilson on Twitter: @icecube85 and Google+.

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