My weekly technology law column (Toronto Star version, homepage version) notes the Gladwell article was published two days after Canada, the United States, the European Union, and a handful of other countries concluded negotiations on the Anti-Counterfeiting Trade Agreement. Although some issues must still be sorted out, the countries have agreed on a broad framework and announced that no further negotiation rounds are planned.
With the draft agreement now public, it is apparent that one of the biggest stories over the three-year negotiation was the willingness of the U.S. to compromise on the rules associated with the Internet. When it first proposed the Internet chapter, the U.S. demanded new liability requirements for Internet providers (including the possibility of terminating subscriber access based on multiple allegations of infringement) as well as tough digital lock rules that went far beyond current international treaty requirements.
The near-final version is a far cry from the initial U.S. proposal, with the Internet provider provisions removed from the treaty and the digital lock provisions rendered more flexible to accommodate the wide range of global approaches to the issue.
Several factors are likely responsible for the dramatic shift. Unexpected political developments in Europe and the U.S. led to an aggressive European Parliament demanding greater protections for privacy and civil liberties in the agreement, while the upcoming U.S. Congressional elections may have increased pressure to conclude the agreement quickly, regardless of how imperfect it might be from a U.S. perspective.
The lack of transparency associated with the agreement may have also weakened the U.S. position, since it left negotiators unable to respond to public criticism, which steadily mounted as politicians, business, and the public grew wary of a treaty being negotiated in secret locations behind closed doors.
Contrary to Gladwell’s expectations, yet another critical factor was the role of loosely connected groups around the world who used the Internet to raise awareness with the public, politicians, and the media. Unlike many advocacy efforts in this field that are limited to domestic or local activities, non-governmental groups from the U.S., Europe, New Zealand, and Canada worked in parallel to turn ACTA into a political hot potato.
Their work was supported by dozens of academics, university clinics, activists, and interested individuals around the world, who published papers, blog posts, and tweets on ACTA and its potential effects. Concerned citizens took that information and created wikis to allow for further analysis or translated the materials into Spanish, French, and other local languages.
The steady stream of information about ACTA took a relatively obscure issue and gradually moved it onto the political radar screen, leading to Parliamentary hearings in Europe and uncomfortable questions in many national legislatures (including Canada’s House of Commons).
While digital advocacy alone was not responsible for these efforts, it played a crucial role, providing instant dissemination of leaked documents and expert analysis. The battle over ACTA may not be the equivalent of the fight for civil rights in the 1960’s, but the relative success in changing the terms of the agreement that was a top U.S. priority demonstrates the power of digital advocacy and the potential for weak ties and loosely organized groups to come together to influence global policy.