Obama Administration Denies Request to Release ACTA Docs

18 March 2009

Barack Obama’s administration has refused to make public a series of documents related to secretive international negotiations on an intellectual property rights enforcement treaty, citing national security concerns.
The documents at issue include government proposals for the content of the prospective Anti-Counterfeiting Trade Agreement, which is currently under negotiation by a group of mostly industrialised countries (see BRIDGES Weekly, 9 October 2008, https://www.ictsd.org/bridges-news/bridges/news/secretive-acta-negotiations-under-scrutiny). 
On the basis of the little information about the talks that has come to light, civil society groups fear that the negotiations could impede access to affordable medicines and threaten to criminalise acts like non-commercial file sharing over the internet.
Knowledge Ecology International, a Washington-based organisation, had in late January requested the release of the seven documents under the US Freedom of Information Act, a law governing public access to government records.
But the White House has chosen to keep all seven out of the public sphere. “Please be advised that the documents you seek are being withheld in full,” Carmen Suro-Bredie, a senior official in the US trade representative’s office, wrote to KEI Director James Love in a letter dated 10 March. She said that the information had been deemed “properly classified in the interest of national security,” in line with a 1995 presidential order authorising the government to keep material pertaining to economic and technological matters classified if its disclosure would cause identifiable harm to national security.
In response to an earlier request by the Electronic Frontier Foundation, the Bush administration had used similar reasoning to justify withholding or censoring all but ten of some 806 pages of records related to the ACTA talks.
Declan McCullagh wrote on Cnet News that the Obama administration’s decision did not sit easily with the new president’s instruction that government agencies “adopt a presumption in favour of disclosure,” a reversal of the Bush White House’s policy of reticence in the face of FOIA requests.
One of Obama’s first acts in office was to sign a memo declaring that “the Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
In his column on the Huffington Post website, KEI’s Love wrote that although the public did not have access to the ACTA negotiating documents, a group of “’cleared’ advisers (mostly well-connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries” did.
Governmental secrecy about the ACTA negotiations has been criticised in other participating countries. Most recently, the European Parliament last week called on the Commission to “make available all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement – which will contain a new international benchmark on intellectual property right enforcement.”
ICTSD reporting; “Copyright treaty is classified for ‘national security,” CNET NEWS, 12 March 2009; “James Love: Obama Administration Rules Texts of New IPR Agreement are State Secrets,” HUFFINGTON POST, 12 March 2009.

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