Homeland Security Complains To USTR That ACTA Is A Threat To National Security

from the oops dept

Well, this is surprising. In response to a Freedom of Information Act request, KEI happened to get its hands on a Homeland Security "position" letter about ACTA written all the way back in 2008. The policy letter surprisingly warned that DHS felt ACTA was a potential threat to national security, in that it could restrict DHS and ICE specifically from putting in place their own policies to deal with infringement. Now, having seen ICE's idea of fighting infringement being seizing domains without much research, due process or concerns for the First Amendment... perhaps that's a good thing. But it's still interesting to see DHS warn that ACTA represents a threat to national security. The cover letter to the USTR warns:
"I am concerned that some possible outcome 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."
Then it includes the short position paper, which highlights numerous concerns with ACTA, some of which were dealt with in later drafts of ACTA, but not all of them. In particular, it's interesting to see DHS explicitly note that it wants to make sure that ACTA doesn't lead other countries to "devote resources to IPR enforcement at the expense of more important anti-terrorism efforts."

DHS also makes it clear that, contrary to claims from tons of ACTA supporters, the original intent of the proposal was to bind Congress -- something that DHS is quite worried about:
the proposed language on the "Border Measures" section of ACTA could codify in international law, certain provisions that would be unfavorable to CBP and, once adopted as an international agreement, even Congress would be unable to alter the rules to make them more economically justifiable. .
DHS also questions why the government should be the one to enforce intellectual property issues, rather than the rights holder directly (apparently, the new folks in charge at DHS have no such qualms):
. . . The cost of enforcing private rights, such as trademarks, can reasonably be placed on the beneficiary. That is particularly true in a context such as this; rights holders often have a choice whether to bring enforcement actions on their own or through border measures. That choice should not be influenced by the consideration that using governmental enforcement resources will save the rights holder the cost of storing and destroying the infringing goods. For these reasons, if CBP concludes that waiving storage or destruction fees has created an unhealthy incentive to shift enforcement from the private sector to government, it should have authority to recommend that fees for storage and deconstruction be charged to the beneficiary of the enforcement action.

This section of ACTA could be interpreted as taking away that authority and protecting rights holders from measures to recover costs incurred for their benefit. This is imprudent and difficult to justify on fiscal or policy grounds.
The report also worries that ACTA will harm "international goodwill," and that ACTA could come back to haunt the US by letting other countries punish US companies under ACTA rules. That was certainly prescient, though it appears the USTR ignored that part:
ACTA would expend international goodwill by requiring other governments to change organizational and legal structures. . . .

In essence, this language would encourage foreign customs authorities to bar imports and exports if the authorities concluded on their own intiative that the goods might violate copyright or be confusing similar to trademarked goods. These are sweeping powers to act against suspected IP violators, and the powers can easily be misused either intentionally or unintentionally. Misuse could even harm small U.S. exporters competing with foreign companies favored by local governments. Generally speaking, the customs agencies of the other participating countries do not possess the same level of authority as CBP -- many of them are not designated competent authorities to make determinations on IPR infringements. This substantially increases the risk that the sweeping powers wiill be misused. . .
Many of these concerns were dead on, though it appears that the USTR only took a few superficial concerns into account. Also, it appears that DHS's more recent obsession with aggressively acting as Hollywood's private police force means that the current management isn't as aware of the negative impact of these actions.

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  1. identicon
    John Thacker, 27 Apr 2011 @ 9:07pm

    Re:

    Yes, staff changes occurred. The letter was written by Stewart Baker, a GWB political appointee, shortly before the election in 2008. He was replaced by President Obama's own political appointee shortly thereafter. The Obama Administration folks seem more pro-ACTA.

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