Secret ACTA fights over iPod border-searches

Michael Geist sez, "The leak of the full consolidated ACTA [ed: the secrete global copyright treaty] text will provide anyone interested in the treaty with plenty to work with for the next few weeks. While several chapters have already been leaked and discussed, the consolidated chapter provides a clear indication of how the negotiations have altered earlier proposals as well as the first look at several other ACTA elements. For example, last spring it was revealed that several countries had proposed including a de minimis provision to counter fears that the border measures chapter would lead to iPod searching border guards. This leak shows there are four proposals on the table."

The copyright industries wanted border-searches on anything digital you were carrying that could be used to infringe copyright, from your phone to your iPod to the laptop that had your confidential client documents, your personal email, your finances, pictures of your kids in the bath, etc. Various countries proposed loophole-riddled ways of exempting your personal goods from a search, mostly hinging on whether they're "non-commercial goods" of a "personal nature." Except that every time I cross the US or Canadian border, they tell me my laptop is "commercial goods" because I do business with it.

ACTA's De Minimis Provision: Countering the iPod Searching Border Guard Fears (Thanks, Michael!)


  1. They can and do search your laptop/cellphone/iPod/graphing calculator without suspicion anyhow, ACTA or no. The big difference would have been what border agents get to look for. Whereas now (in Canada, anyhow) they’re just looking for obscenity, child pornography, hate speech, and threats to national security, ACTA threatened to add copyright infringement to the list.

    The practicalities of actually spotting copyright infringement during a border search of personal electronics are mindboggling. Unfortunately, the search itself wouldn’t be anything new.

    1. I think the real danger is that border guards would go from having the *option* to search your laptop to having the *duty* to search your laptop.

  2. This is absurd. People who might actually care can just buy 8 and 16gb microsd cards..or simply upload all of their content to a private folder on a $5 a month all you can eat web hosting plan.

    It’s such an obviously inane and futile effort at stopping “piracy,” one has to wonder if there isn’t another reason for it.

  3. As far as iPod searches and ACTA, I’ve heard it both ways: there will be searches and there won’t be searches. Trouble is with the lies we’ve been told and the all secrecy there’s no way to be sure what to believe.

    One of my frustrations with the opposition to ACTA is the lack of organization. There is no one organized group devoted solely to stopping the ACTA Internet take over. It’s mostly one person here and a side project from another group there and no real focus.

    1. You lamented that there is “no one organized group devoted solely to stopping the ACTA”.   Which is why they are trying to keep A.C.T.A. secret. Worse, since A.C.T.A. is supposedly for the good of the media industry is it any wonder that mainstream media is NOT covering it?

      (To my mind, that is an excellent example of why we can no longer trust mainstream news to inform the public without fear or favor. )

      I’ve put a vanilla xhtml text version of the Consolidated A.C.T.A. document on my personal website: along with links to the original PDF and a pretty formatted text version. Get a copy of the version you like. Pass it on.

      Normally this is the kind of thing that I would put in my StopUBB blog, but since that’s on WordPress it could be subjected to a DMCA takedown. Since ACTA is not yet a reality, and my personal site is not in the US it is safe from DMCA interference. I would counsel caution to American Internet Freedom Fighters before risking takedowns.

      Most countries of the world now have a version of Pirate Party so that’s one place you can find info. Search #ACTA on Twitter or pr Facebook and you’ll be able to connect with others to share information with. And there is an excellent European ACTA fighting organization: And of course, keep following boingboing. [Thanks Cory.]

      Fighting ACTA has turned into a global grassroots movement. The more leaks the better. Everybody needs to tell everybody they know about A.C.T.A. because the media won’t. And complain to your government. Loudly. Often.

  4. I’m curious how a border agent will be able to tell from searching my iPod that it contains copyright infringing materials. Will they have some magic doohickey that can douse for it? A magic Z-ray machine that can detect the difference between a purchased MP3 and an illegally copied one? A fair amount of my music collection has non-Roman characters. Since border guards are likely not trained to read Korean or Chinese or Japanese or Arabic, will I be detained until they can get a translator in?

    Damn. Think I really need to “invent” that magic box and sell it to the RIAA, MPAA and USCBP at outrageous markup…

  5. That does it. I mean how are you ever gonna prove that the mp3s on your player were ripped from your own CD collection ? Even if you still have all the originals, I can’t imagine the hassle. So now I _want_ an mp3 player wich can easily read encrypted flash cards.

    Here’s how I want it: flash cards encrypted at the device level with TrueCrypt so they can be created easily in Windows/Linux. Then when you turn the device on there should be a simplified way to enter the password (after all you don’t have a full keyboard). Who wants to make one ? There’s a market for it now, and for good reasons.

  6. This would only make sense if there was a realistic chance of random border guard #23 being able to find anything they should actually be looking for. Nobody with half a brain would label their child porn “childporn 12-10-2009.avi”… or leave it in a directory that’s easy to find.

  7. Dumb question: how do they know if the songs on my iPod are legal or not? How can they tell if they were illegally downloaded, ripped from my CDs, or bought at iTunes store?

    1. @Toxa The same folks who are pushing for this legislation would want ripping from CD to be illegal too. So really, the only question is whether you can show that the content on your computer/iPod/phone was purchased from an industry-approved download site or not. That will require digital signatures and really, really strong DRM (plus tools that the border guards can use to verify every piece of content on your device).

      Of course, content that was given away for free wouldn’t be digitally-signed, so good luck explaining to the border guards that it’s your friend’s band, or a free album from Nine-Inch Nails, or your personal recording of chanting Cambodian monks, or your holiday video or whatever. Can’t show a certificate? I’m afraid we’re going to need to impound your equipment.

      Then there are eBooks. eBook piracy is going to be huge; they’ll need to check for that too. Good luck telling them that this guy Doctorow, or friends of his like Stross and Watts, give away some of their content for free. Or that Chaucer has been dead for so long that even the wildest fantasies of copyright maximalists can’t take his work out of the public domain.

      I can’t imagine how searching for digital contraband could be made workable, but I think that the guys who are behind these laws will be canny enough to set things up in such a way that we’ll be the ones to bear the burden of the impossibility of making things work right. I’m guessing it won’t be _their_ laptops that get sequestered for six months so that someone can search the hard disk for stolen music.

  8. So do I get to sue Border Patrol for copyright violation when they copy my hard drive and various files to which I own the rights to at the border?

  9. @Toxa
    That’s very controversial, but it appears that it would be up to you to prove immediately that licenses for those files have been “legally bought”.

    You would not be detained, but your equipment might be destroyed or seized at once (anyway, see point 10 of the EP mentioned resolution at the end of the message).

    Here in the European Union there’s some coordination and sync among dozens of NGOs in several Member States (see also the 5-parts ACTA guide by Michael Geist).

    Beside several oral and written parliamentary questions, one of the most important result of that activity is a resolution of the European Parliament, adopted with overwhelming majority, which among the other things tells that the Parliament wants an ACTA *only* against counterfeiting, not against file sharing and so on, limiting the Internet chapter of ACTA to a very narrow scope (point 9, but all the resolution is very good):

    The European Parliament has already shown the capacity to oppose both the Commission and the Council (for example by rejecting the major SWIFT USA-EU agreement).

  10. Certainly it’s a bad thing that the ACTA negotiations are happening in secret. Things would be much worse if Cory hadn’t campaigned against it – witness their frantic revisions! But is it a bad thing to have, in and of itself?

    Peter F. Hamilton wrote in Misspent Youth about a world where technology allowed such easy copying of material that nothing new was being created. There was simply no way of deriving enough revenue from owning the rights to content which was instantly and comprehensively pirated the moment it was published.

    Perhaps we’re already there. There have been arguments elsewhere that the main reason for the big studios embracing 3D is to defeat the cinema pirates, for example. But mainstream cinema increasingly relies upon product placement to counteract the loss of royalty revenues. Doesn’t this, and the move away from large consolidated publishers to small, independent publishers funded largely by advertising, mean an end to great works? Perhaps the ACTA participants are right to try to defend royalties as a method of compensation for content creators.

    But not in secret, and at the cost of our personal liberties, of course.

    1. “There was simply no way of deriving enough revenue from owning the rights to content which was instantly and comprehensively pirated the moment it was published.”

      …except that creative people have been known in the wild to create for reasons above and beyond revenue.

    2. MikePollitt: The RIAA and MPAA earned a combined 22 billion dollars in 2007. To put it into perspective that’s more than economies of 120 different nations. The MPAA’s sales for that period set a new record and the RIAA made more than the MPAA did. Content providers are making amounts of money that stagger the human mind; they’re not going to go out of business any time soon.

    3. There was great art before copyright law.

      Creators create. It’s that simple. If a creator manages to make any money from their work, it’s bonus. If they can earn enough money to quit their day job, they are happy because they can devote more time to their creations. But they are going to create regardless. I know this because I grew up in a creative family.

      Over the last fifty or so years all of the world’s “popular culture” has been filtered through a handful of media executives at the major media corporations. These people have no more ability to pick a winner than you or I (as William Goldman, author of work as diverse as Marathon Man and The Princess Bride famously observed, “Nobody knows nothin’.”)

      Think about it.

      Is every Hollywood movie a hit?   No.
      Every network TV show successful?   Hardly.
      What about every RIAA music recording?   LOL

      Vast quantities of creativity have been stifled since the big media guys created their monopoly. But all those creators who didn’t get a recording contract or the greenlight on their feature film or anything but a rejection letters from the big publishers keep quietly toiling away. Because that’s what creators do.

      What the internet has done is opened the door to ALL the creators. Any writer, band or film maker can distribute their own creations.

      THAT is what they want to stop.

  11. Um, who’s going to pay for this?
    Surely even the most cursory search of an mp3 player (assuming it was possible for a border guard to magically be able to tell if it contains pirated material), will take up some of the guards time, that they should be spending looking for bombs, guns, kiddy porn etc. So, more border guards are going to need to be hired to keep, an who will pay for that?

    Should be fairly easy to make the case that the entertainment industry isn’t going to bring in enough in extra taxes to make it worth while for a national government.

  12. i love how so much of the propsed copyright laws seem to revolve around the accused needing to prove their innocence. Got an MP3? can you prove you paid for it? Why not?

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