The IP Treaty Is Secret Too?!?!?

A reader sent this link, reporting that the Obama Administration refuses to release under FOIA a number of documents pertaining to an intellectual property treaty negotiated under Bush.

Last September, the Bush administration defended the unusual secrecy over an anti-counterfeiting treaty being negotiated by the U.S. government, which some liberal groups worry could criminalize some peer-to-peer file sharing that infringes copyrights.

Now President Obama’s White House has tightened the cloak of government secrecy still further, saying in a letter this week that a discussion draft of the Anti-Counterfeiting Trade Agreement and related materials are "classified in the interest of national security pursuant to Executive Order 12958."


Jamie Love, director of the nonprofit group Knowledge Ecology International, filed the Freedom of Information Act request that resulted in this week’s denial from the White House. The denial letter (PDF) was sent to Love on Tuesday by Carmen Suro-Bredie, chief FOIA officer in the White House’s Office of the U.S. Trade Representative.

Love had written in his original request on January 31–submitted soon after Obama’s inauguration–that the documents "are being widely circulated to corporate lobbyists in Europe, Japan, and the U.S. There is no reason for them to be secret from the American public."


Love’s group believes that the U.S. and Japan want the treaty to say that willful trademark and copyright infringement on a commercial scale must be subject to criminal sanctions, including infringement that has "no direct or indirect motivation of financial gain." 

Frankly, I don’t know why Obama is keeping this secret. He doesn’t want Americans to realize that our largest export–Intellectual Property–is as vulnerable in some ways as the housing market? He doesn’t wants us to know that he’s maintaining, on an international level, policies which violate his claim to be net friendly on the national level? He doesn’t want us to know the technology they’re advocating for pursuing peer-to-peer software? Maybe the discussions the parties to the treaty had touched on some or all of this…

Or maybe he just want us to know what tunes Osama bin Laden has on his iPod? 

Update, from WO in comments:

I found the leaked draft on wikileaks. I suspect the reason for the secrecy is this line that I don’t think anybody has noticed:

Civil enforcement:
— Authority to order ex parte searches and other preliminary measures;

Ex parte searches? For digital materials? Sounds like the NSA’s dream come true.

45 replies
  1. Rayne says:

    We’re continuing to work on a similar, and quite possibly related story. I’ll check with my team mate working on it to see how far along he’s at with it. Once Love gets documents, assuming they get around the same national security crap, they’ll have to engage a trade expert to read the mumbo-jumbo.

    It’s ugly and convoluted crap. I suspect the reason they’ve slapped a national security denial on this has something to do with both reflexive response and the lack of a USTR in place with a solid policy about this stuff.

    • Rayne says:

      Heh. I suspect that if this is a real game of Calvinball, we’ll find that it’s the same game rather than two parallel games and the rules only appear to be used twice when they are really used once.

      Or this is where Hobbes jumps up and shouts, “PSYCH!!” before advising the rules are different.

  2. selise says:

    our intellectual property regime is also, among other things, bad for scientific progress and technological innovation.

    i thought the war on science was over?

    • Rayne says:

      This is supposed to be government of, by and for the people. Our Constitution is differentiated from all others around the world by its first three words, “We, the people.”

      We should damn well know what our government is doing in our name.

    • freepatriot says:

      you’re right

      we’re not worthy

      please take your talking points to some site where the intellectually superior peanut gallery will recognize the brilliance of your voice, and appoint you the “Biggest Brainiac In charge”

      red state might be looking for somebody with a two-digit IQ

      you might even get paid

  3. Rayne says:

    It’s not really a war on science; what most of us didn’t realize is that trade was being used so heavily as a bargaining chip by an administration which had lost all other leverage to extract performance.

    We blew our social capital as a moral player through an illegal war, torture/rendition, acting in bad faith. We blew even more power to influence by way of force, neglecting diplomacy while implementing assassination squads.

    What tools are left to extract performance? Trade is one.

    The other challenge here is the question of who is “we.” “We” blew our social capital, for something “we” wanted badly.

    What if the new “we” is only just now realizing the old “we” used trade for illegal purposes and has not yet figured out how to resolve this problem?

    Keep in mind we, the public, don’t know much yet about the assassination squads at Cheney’s disposal.

    • quake says:

      C’mon, get real. After Omaba voted for FISA immunity last year you knew what you were getting. But at least it’s better than McCain or Bush. As for the rest, it depends on public opinion.

      Right now you have Cheyney’s assination squads, the bailout for the fiancial industry while the mortgage borrowers are screwed, etc., etc. And I haven’t noticed the peasants taking to the streets with pitchforks and torches, have you?

      That being the case, Obama is as good as it gets.

  4. GregOPauls says:

    What are the Navy seal doing today?
    Do you know. I guess not.
    There are secrets you will never know.

      • freepatriot says:

        if you ignore it, it will get funnier (as it lashes out against it’s sad existence in forced isolation)

        not that you could get funnier than declaring a site to be full of morans, and then saying you fit in there

        • TheraP says:

          Forgive me, freepatriot, for treading on your territory. I usually ignore. I will now say 3 Hail Marys and an Our Father. And resolve to be quiet when trolls are around. *g*

  5. GregOPauls says:

    After I leave.
    I love this place.
    This is some of the most fun I have had in years.
    Finely a place where ideas can be exchanged, I have learned a lot.

  6. WilliamOckham says:

    Once again, we have an agency operating without a new political appointee from the Obama administration hewing to the old regime. Obama’s nominee, Ron Kirk, is sort of a doofus, but his nomination is being held up because of a tax problem (over less than $10,000 in misreported income … I hate to admit it, but I’ve made a bigger mistake on my taxes…).

    I found the leaked draft on wikileaks. I suspect the reason for the secrecy is this line that I don’t think anybody has noticed:

    Civil enforcement:
    — Authority to order ex parte searches and other preliminary measures;

    Ex parte searches? For digital materials? Sounds like the NSA’s dream come true.

  7. brendanx says:

    Today’s Post has an article “How Obama Will Handle U.S. Attorney Posts Still Unclear”.…

    Is this accurate? –

    When President Bill Clinton took office, he fired all U.S. attorneys at once, provoking intense criticism in the conservative legal community and among career lawyers at the Justice Department.

    President George W. Bush took a different approach, slowly releasing several of the prosecutors but keeping in place Mary Jo White, the U.S. attorney for the Southern District of New York, while she pursued terrorism cases and a politically sensitive investigation of Clinton’s pardon of fugitive financier Marc Rich.


  8. wavpeac says:

    America…where only “special, elite and wealthy” folks get information to help them while making all the choices for the rest of us.

    yes, I remember reading that definition of democracy…or am I confusing that with imperialism?

    NAT=Not A Troll, an annoying little insect, with no point. He’s just a (Gop)NAT.

  9. wavpeac says:

    could it be possible that obama wants to keep all this dirty stuff in…for fear of is life? (I am reaching, I know…but it’s so hard to fathom why he is supporting this bunk).

    • brendanx says:

      The more power he has, the easier his job is. And it makes the unconstitutionality of it all go down easier if his predecessors set the standard for executive self-aggrandizement. Why isn’t that sufficient explanation?

    • emptywheel says:

      I actually think that IS one of his concerns. You don’t reveal the spooks’ ugly side without the risk of retaliation (just as JFK). And there already so many right wing nutjobs threatening Obama’s life I’m sure it’d be easy to launder something evil against Obama.

      That doesn’t mean that explains his actions here. But given that Obama’s three muses in his role are JFK, Lincoln, and MLK, you gotta believe he’s conscious of the fact that not everyone survives being a real leader.

  10. wavpeac says:

    I don’t know, I guess I really bought the part of the president is supposed to protect the constitution…

    okay…so it makes his job easier but completely contradicts his purpose.

    I guess I need a better reason for that…but deep down I guess I know better.

  11. ApacheTrout says:

    I’m thinking aloud/out of my arse here, so bear with me. I’m wondering if there’s anything in this secret trade agreement that describes the technical aspects of what allows the data mining/wire tapping program work. Not so much the programs themselves, but the code in the telecoms software that creates the opening in which the data mining/wiretapping programs enter and eavesdrop.

    • readerOfTeaLeaves says:

      That’s my assumption.
      I think it’s also extremely relevant to banking encryption technologies, although FWIW it’s not at all clear to me how the US controls much of anything in the software realm these days. After watching several excellent software groups (West Coast) be outsourced to India and thereabouts, I tend to think we’re caught in some kind of weird convergence where nation states make laws that don’t necessarily function in an era of globalized multinationals.

      Also, I worked for a fine little software company that hit the skids due to rampant piracy from the Far East, so I see this topic from a number of perspectives (including lost revenue, which thoroughly pisses me off).

      I’m not convinced the right hand lives in the same universe as the left hand on some of the IP and trade issues. Plus, its an arena that — from what little I’ve seen — is really a big can of worms because if you don’t have a superb translator who takes a lot of time to clarify that ‘a’ means ‘a’ to people Z, Y, and X, you are in for tons of expensive wasted time, billable by the minute.

      My personal avenue to sanity is the Open Source movement, and Lawrence Lessig has more credibility with me than anyone on topics related to IP. Open Source simplifies a whole host of issues.

      But I realize that Open Source doesn’t apply to all technologies.

      Fundamentally, I think Rayne’s point really needs to be underscored: in a shrinking world, ’social capital’ becomes ever more valuable. People who might not steal from someone they believe treats them fairly will probably have no qualms about stealing from someone they view as ‘a torturer’ or ‘a warmonger’. So the issues of social capital and IP are related.

  12. whitewidow says:

    OK, I give up.….._0313.html

    “They continue to assert that torture was in the scope of employment and could be reasonably expected. They continue to assert that these [top officials] be entitled to immunity. They also continue to argue that detainees at Guantanamo don’t have constitutional rights.”

  13. BoxTurtle says:

    I’m going to guess the real reason for keeping this quiet is China. Negotiations there will be prickly at best, as China makes a large portion of their exports on counterfeit goods.

    Given the hand China is currently holding in the debt crisis, I’m betting they won’t settle for less than the ability to export what they please wherever they please. It’s likely that the writers are trying to figure a way to phrase that to get it past congress.

    Given the strength of the California delegation and the money that floats to elections out of the software industry, I’d be keeping a backstab quiet too.

    Boxturtle (It’s not uncommon for treaties in progress to be secret)

  14. klynn says:


    I just looked at my calendar and missed that it was “get your scroll on” day.

    Thanks for the post EW.

  15. earlofhuntingdon says:

    Whoever’s security Mr. Obama is protecting, it is not American citizen’s.

    Any claimed authority that derives from that line in a treaty would not supersede constitutional protections, if we have any left. Arguably, however, it would supersede legislation in existence at the time of the treaty.

    Let’s see how our masters in the Senate react when they are asked to give their advice and consent to that language.

  16. wavpeac says:

    well, it doesn’t seem like greed and “sheer power” fit for Obama’s personality. I don’t think he’s an innocent by any means. But I think he’s trying to “outwit” a group of anti social sociopaths…The only way this can work, is if he saves his own hide, gets some power “over” the bad guys, who will go to any length to win, and then gives back the power to the people.

    what else do we have but imagination and hope?

    • whitewidow says:

      At least the Brits are making some noise about investigating and prosecuting.

      The circle of guilt on this is so large – so many forces working to keep the secrets.

      • BoxTurtle says:

        We may have to depend on the European courts to clean up our mess. Our congress has already investigated (kept most of their results secret) and has assured us that no impeachable offenses worth considering occurred in the run up to the war.

        Boxturtle (Wonders if Cheney will have the guts to travel outside the US without a diplomatic passport)

  17. GregOPauls says:

    Did one ever think that the allegation may have never occurred in the first place.
    Just wondering?

  18. Loo Hoo. says:

    OT from Raw Story:

    In a brief filed Thursday evening, Obama Justice Department lawyers extended many of the same arguments made by Bush attorneys – that top government officials have qualified immunity from prosecution and that Guantanamo detainees do not have constitutional rights to due process.

  19. Peterr says:

    The idea of a secret treaty is as abhorrent as a secret law. If there is some international rule about my behavior, it would kind of make sense to tell me about the rule, so that I can mend my ways and become a good, treaty-abiding person.

    The secrecy implies that there is another overriding purpose in play.

  20. JohnLopresti says:

    Baucus yesterday posted an announcement Ron Kirk’s nomination to USTR passed in Finance committee. The IP issues are complexified in the global economic vortex at present, Au >1.K U$D, PRC export strain as US imports less, plus the nicely characterized @41 [SoAsia]+3rdWorld issues with respect to digital copyright.

    CQ coverage on Kirk’s progress seemed to indicate a week ago it would happen, but what I see is sameOld Republican delay tactics to slow the process of transition to the newly elected government now four months since the election. At most recent glance, Specter was soul[1] searching regarding the solicitor general nominee. There are three others the Republicans are delaying, as well, some discussed in recent threads hereabouts.

    It seems Kirk awarded speech honoraria to Austin College, instead of accepting them into his own income, but the certified public accountant entered the data on the wrong line in the tax forms, only amending the filing later, and Kyl was only moderately grumpy about that technicality, now that it is settled. The Baucus announcement has a technically broken link in one footnote, however.[2]
    [1]One of the things in Specter’s reverie is concern the nominee might approach capital punishment in a way different than is commonplace in TX, e.g. Though I need to check the committee website to see if the transcript is available yet.
    [2]The Baucus press announcement Acrobat livelink evokes a Senate404, not the actual interrogatories.

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