Page last updated at 12:45 GMT, Tuesday, 10 June 2008 13:45 UK

Trade agreement could hit privacy

Internet law professor Michael Geist examines the shift from locking down content to locking down the network.

pills
Public needs greater protection from fake pills

Last week, negotiators from countries such as the United States, European Union, Japan, and Canada huddled at the US Mission in Geneva to negotiate the Anti-Counterfeiting Trade Agreement (ACTA).

The ACTA, which was shrouded in secrecy until a leaked summary of the agreement appeared on the internet last month, has sparked widespread opposition as many worry about the prospect of a trade deal that could lead to invasive searches of personal computers and increased surveillance of online activities.

While internal ACTA discussions began in as early as 2006, the trade negotiations only came to the public's attention last autumn when several governments simultaneously revealed their intention to participate in the negotiations.

Since the announcement, most governments have tried hard to keep the negotiations below the public's radar screen. Both the US and Canadian governments launched public consultations earlier this year that revealed little about the form or substance of the proposed treaty.

European negotiators provided a brief report on last week's negotiations, yet most of the details remain hidden from public view.

Diminished privacy

Prof Michael Geist (Michael Geist)
It could focus attention on other key concerns including greater internet service provider filtering of content, heightened liability for websites that link to allegedly infringing content, and diminished privacy for internet users.
Michael Geist

In recent weeks, fears about the ACTA have spilled into the political arena. In Canada, opposition Members of Parliament have raised concerns in the House of Commons and Toronto-area Liberal MP Bob Rae blogged that it "augurs a ridiculously intrusive national and international apparatus to police practices that are as common as eating and breathing."

With another round of talks set for next month in Japan, participating governments should use the opportunity to lift the veil of ACTA secrecy. Trade negotiators may prefer to remain outside of the spotlight, yet greater transparency is desperately needed.

Public disclosure of the draft documents might put an end to fears about iPod searching border guards by clarifying the full scope of the treaty.

Moreover, it could focus attention on other key concerns including greater internet service provider filtering of content, heightened liability for websites that link to allegedly infringing content, and diminished privacy for internet users.

Greater transparency would also lead to a more inclusive process. To date, the ACTA negotiations have excluded both civil society groups as well as developing countries.

Pharmaceutical fraud

In fact, reports suggest that trade negotiators have been required to sign non-disclosure agreements for fear of word of the treaty's provisions leaking to the public.

Given the need for cooperation from all stakeholders to battle counterfeiting concerns, an effective strategy requires broader participation and regular mechanisms for feedback.

An open ACTA also promises to increase the effectiveness of anti-counterfeiting activities.

For example, there is general consensus that law enforcement and regulators should prioritize health and safety concerns that arise from counterfeit pharmaceutical activities.

Protecting the public from pharmaceutical fraud requires a comprehensive approach, including confiscation of counterfeit and expired drugs, regulatory action against unsafe marketing claims, and assurances that consumer health will not be placed at risk due to the withholding of relevant research data.

If the leaked ACTA information is accurate, the current draft adopts a much more limited approach by focusing on confiscating drugs, thereby leaving the public vulnerable to pharmaceutical fraud.

With the ACTA speculation at a fever pitch, there is a sense that both the US and European Union are anxious to conclude negotiations by the end of the year.

The public should express reservations about this aggressive timeline and insist that all parties open the ACTA now.


Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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