As long-suffering readers will know, I've been banging on about the dangers to free software – and much else – of the Anti-Counterfeiting Trade Agreement (ACTA) for a long time. The bad news is that ACTA hasn't gone away or got better in that time; the good news is that more and more people are becoming aware of just how awful it is, and why the secrecy surrounding its negotiations is just plain wrong.
One knock-on effect of that obsessive secrecy is that even ordinary parliamentarians are forbidden from seeing the drafts, which makes the negotiations not only a travesty of democracy, but also a more direct slap in the face of those politicians. Happily, the latter are beginning to wake up to the fact that they are being sidelined here, and starting to become more forceful in their demands for access to ACTA.
Here's the latest manifestation of this new ACTA activism at the European level:
"ACTA is legislation laundering on an international scale, trying to covertly push through what could never be passed in most national parliaments" declared the socialist Member of the European Parliament Lambrinidis in his presentation of a written declaration that aims at establishing the official oppositon to ACTA of Europe´s elected representatives. He also criticized ACTA's intention of "systematic monitoring of citizens in the hands of internet service providers, giving them more power than police have in anti-terror operations".
The other three MEPs, the conservative Rothova, the liberal Alvaro and the socialist Castex, all made reference to the lack of a transparent democratic process, of the great threats to the right to privacy and how the US wanted to force this agreement on Europe. Alexander Alvaro from Germany said that "third party liability for internet servers is like making the post office responsible for what is written on the letters it sends". He added that all of the 40 industries that signed non-disclosure agreemnts for access to ACTA information were from the US and none from the European Union. Rothova slammed the democratic deficit of only being allowed to say yes or no at the end of the process "because just accepting or rejecting an agreement is not an exercise of democracy as put forth in the Lisbon Treaty." Castex made reference to the potential massive attack of ACTA on personal data and privacy in violation of EU law as backed up in a report published this week by the European Union´s Data Protection Supervisor.
The heart of the EU's Data Protection Supervisor's concerns are as follows [.pdf]:
Although the EDPS acknowledges the importance of enforcing intellectual property rights, he takes the view that a three strikes Internet disconnection policy as currently known - involving certain elements of general application - constitutes a disproportionate measure and can therefore not be considered as a necessary measure. The EDPS is furthermore convinced that alternative, less intrusive solutions exist or that the envisaged policies can be performed in a less intrusive manner or with a more limited scope. Also on a more detailed legal level the three strikes approach poses problems. These conclusions will be explained below.
The EDPS wishes to emphasise the far-reaching nature of the imposed measures. The following elements must be mentioned in this regard:
(i) the fact that the (unnoticed) monitoring would affect millions of individuals and all users, irrespective of whether they are under suspicion.
(ii) the monitoring would entail the systematic recording of data, some of which may cause people to be brought to civil or even criminal courts; furthermore, some of the information collected would therefore qualify as sensitive data under Article 8 of Directive 95/46 which requires stronger safeguards.
(iii) the monitoring is likely to trigger many cases of false positives. Copyright infringement is not a straight ‘yes’ or ‘no’ question. Often Courts have to examine a very significant quantity of technical and legal detail over dozens of pages in order to determine whether there is an infringement.
(iv) the potential effects of the monitoring, which could result in disconnection of Internet access. This would interfere with individuals' right to freedom of expression, freedom of information and access to culture, e-Government applications, marketplaces, email, and, in some cases, with work-related activities. In this context it is particularly important to realize that the effects will be felt not only on the alleged infringer, but all the family relatives that use the same Internet connection, including school children who use the Internet for their school activities.
(v) the fact that the entity making the assessment and taking the decision will typically be a private entity (i.e. the copyright holders or the ISP). The EDPS already stated in a previous opinion his concerns regarding the monitoring of individuals by the private sector (e.g. ISPs or copyright holders), in areas that are in principle under the competence of law enforcement authorities.