My weekly technology law column (Toronto Star version, homepage version) focuses on the Anti-Counterfeiting Trade Agreement (ACTA), which was shrouded in secrecy until a leaked summary of the agreement appeared on the Internet last month, and which has sparked widespread opposition as Canadians worry about the prospect of a trade deal that could lead to invasive searches of personal computers and increased surveillance of online activities. Last week, Canadian negotiators huddled with representatives from countries such as the United States, European Union, and Japan at the U.S. Mission in Geneva to continue the negotiations.
While documents obtained under the Access to Information Act reveal internal ACTA discussions as early as 2006, the trade negotiations only came to the Canadian public's attention last fall when International Trade Minister David Emerson revealed the government's intention to participate in the negotiations. Since the announcement, the Canadian government has been among the most secretive of all ACTA negotiating partners. The Department of Foreign Affairs conducted a public consultation on the treaty in April; however, the government revealed little about either the timing or substance of the agreement. By comparison, Australia launched a public consultation on the treaty before committing to participate in the ACTA talks.
Fears about the ACTA have spilled into the political arena as NDP MP Charlie Angus last week voiced concerns about its effects during Question Period 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, the government should use the opportunity to pressure its trading partners 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. 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.
ACTA transparency would further ensure that Canada's domestic and international counterfeiting strategies remain consistent. With domestic anti-counterfeiting legislation currently in the works, Industry Minister Jim Prentice could use the opportunity to highlight his domestic and international anti-counterfeiting strategies.
Given the concerns associated with counterfeiting, 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 Canadians 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 Canadians vulnerable to pharmaceutical fraud.
With the ACTA speculation at a fever pitch, there is a sense that both the U.S. and European Union are anxious to conclude negotiations by the end of the year. Canadian officials should express reservations about this aggressive timeline and insist that all parties open ACTA to the public now.