Yesterday, PC World came out with the news that the much-discussed, but long-secret Internet chapter of the Anti Counterfeiting Trade Agreement (ACTA) was leaked to the public. The leak confirms a number of suspicions that had been raised by previously leaked European analysis papers. So with this revelation, what remains of calls for transparency?
For instance, Michael Geist compares the text of this leak with the statement that Stan McCoy of the U.S. Trade Representative gave to us, noting that McCoy emphatically denied that the United States was asking for ACTA to include mandatory 3 strikes provisions. Of course, the key word there was mandatory. Geist notes that language in the draft text: (1) presses for increased ISP involvement in liability, and (2) specifically notes as a model the ” termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers.” Geist says that this disparity between the spirit of the earlier message and the actual text of the draft “shows how deceptive the USTR has been on this issue.” Cory Doctorow of Boingboing goes further, headlining his post on the leak with the claim that the USTR “lied about 3-strikes.” Some of the comments below the Boingboing post are noting the further ways that McCoy's statement can be parsed, including the fact that he specifies that the U.S. is not pushing for mandatory 3 strikes (perhaps other negotiating parties are?), and so on.
The hair-splitting parsing of press statements, looking for “gotcha” moments, isn't want we're after here, though. And we wouldn't have to engage in that sort of nitpicking scrutiny of statements if we had a full, officially acknowledged text to discuss publicly. Until that happens, anything that's said about ACTA by the negotiating parties is going to be probed for loopholes and potential inconsistencies, raising questions and speculation about what might be, rather than what is.
And the text we have here in the Internet chapter still doesn't tell the whole story. We can only suspect that this is an accurate account of draft ACTA text—something that has been discussed. According to the leaked European account of the negotiations in Mexico, consensus still hadn't been reached on much (if any) of the chapter, so how much this can still change is up for grabs. Nor do we have any other sections of ACTA to analyze. Note, for instance, the second footnote of the leaked draft, which says that the push for “third party liability” (such as contributory infringement and inducement) will be moved into the civil enforcement chapter of ACTA. What else is in the civil enforcement section that we ought to know about?
There's a lot to parse and discuss in the text of this leaked draft, and we'll have a few more posts coming up on those points soon. But for now, it's important to note that transparency, as part of government process, isn't just about getting information. It's about the government providing it to the public, or making it accessible and available, so that we have the knowledge that it is complete and authentic. So that we know it is, in fact, the truth, the whole truth, and nothing but. Until we have that, we don't have a healthy process.