Government Can Keep Key Emails With Hollywood Lobbyists About 'Six Strikes' Secret
from the can't-interfere-with-that-'commercial'-relationship dept
While we keep hearing folks in the entertainment industry and their supporters in DC talk about how great it is that the “six strikes” “Copyright Alert System” (CAS) was a “voluntary” agreement between industry players, one of the worst kept secrets in the world was that the White House was heavily involved. They basically helped Hollywood out and at least hinted strongly at the fact that if no “voluntary” agreement came through, legislation might have to be put in place (creating a novel definition of “voluntary”). Specifically, it came out that Victoria Espinel, the White House’s IP Enforcement Coordinator (IPEC), had been emailing with people about the program.
That news came out because Chris Soghoian had submitted a Freedom of Information Act (FOIA) request, seeking details of all communications between Espinel and her staff and the various players in six strikes, both the entertainment industry and the various ISPs (no need to seek communications with the real stakeholders, the public, since they weren’t even invited to the table). However, Soghoian felt that the Office of Management and Budget (OMB), in which Espinel works, kept key documents from being revealed, and appealed. Following that, OMB released a few more documents, but still kept many secret. Soghoain then went to court over the issue — arguing specifically that exemptions claimed for “trade secrets, commercial or financial interesets” and “privileged intra-agency memoranda and letters” were inappropriate. Unfortunately, the court has now rejected that case, siding with OMB.
At issue are some details of the draft “memorandum of understanding” that created the six strikes CAS program. Apparently, entertainment industry lobbyists shared those drafts with Espinel, but OMB won’t release them, claiming that they’re commercial, confidential information. OMB also argued that the documents were provided voluntarily and that the drafts “were not compelled or obligated.” In response, Soghoian argued that the documents were clearly provided to OMB for the sake of having Espinel “press ISPs for additional steps to combat copyright infringement (steps they are not legally obligated to take).” The court rejects this, saying that the info was provided confidentially, and voluntarily, and it represents commercial information. So… they remain secret.
The court also rejected an attempt to see internal discussions within the government about the six strike plans (as well as discussions on foreign laws like the Hadopi six strikes plan in France). Espinel’s office argued that these are protected because they’re a part of the “deliberative process privilege” that lets them withhold internal deliberative discussions about policy (so that government employees can discuss stuff openly before coming to an official policy position). However, here, Soghoian argued that Espinel and the IPEC have almost no policy setting role under the law, and thus this exemption makes little sense. Once again, the court disagreed. Here, they argued that since the government may make policy decisions based on whether or not six strikes formed (or how well it works) that these communications were properly classified as privileged and not open to FOIA requests.
The court goes into a bit more detail on a few specific withheld documents, but the conclusion is all the same: OMB can keep these documents secret because they involve internal deliberative discussions. This isn’t too surprising, but it also means that we don’t get to learn the full extent of the government’s involvement in this “voluntary” process.