Secret copyright treaty: USA caves on border laptop/phone/MP3 player searches for copyright infringement

Michael Geist writes in with more analysis of the recently leaked draft of ACTA, the Anti-Counterfeiting Trade Agreement, a secret treaty being negotiated among rich countries whose entertainment lobbyists have decided that the United Nations is too open and balanced to be used for future copyright negotiations.
I posted yesterday on the updated Internet chapter in the latest version of ACTA, which features a major change on secondary liability [ed: e.g., holding ISPs and web-sites liable for copyright infringement if they don't surveil and censor their users] and the U.S. attempt to clawback on recent domestic DMCA changes by arguing against linking circumvention and copyright infringement [ed: that is, the attempt to broaden the reach of the US law that prohibits breaking "copy-protection" even if you're doing so for reasons that don't violate copyright, such as loading unauthorized software onto locked mobile devices like iPads].

While there remains a number of issues to be determined in that chapter (and a great deal to be addressed in the other IP enforcement chapters on criminal provisions, civil enforcement, and border measures), the rest of ACTA has largely been decided. As in the Internet chapter, where compromise was needed it was the U.S. that did most of it, as it becomes increasingly apparent that the USTR is willing to agree to almost anything in order to bring home an agreement before the next round of elections in November.

Most interesting is the U.S. decision to cave on border issues. The U.S. had sought a provision requiring that each party shall adopt and maintain appropriate measures that facilitate activities of custom authorities for better identifying and targeting for inspection at its border shipments that could contain pirated goods. The article then specified a range of activities including consultation, information exchange, and a mandatory audit power. Moreover, there was an additional article on information exchange between customs authorities. All of that has been dropped, leaving only a provision where a party may consult with stakeholders or share information.

ACTA's Enforcement Practices Chapter: Countries Reach Deal as U.S. Caves Again



  1. Now that having your laptop content examined by customs authorities is becoming commonplace, I was wondering if they were going to take the next step and start looking at your media collection in detail for copyright infringement. The nightmare scenario for me would be having to prove I rightfully own the 10,000 or so mp3s in my music collection before they let me have my laptop back. Can you imagine such idiocy? I can.

  2. Or True Crypt.

    Wonder how they’ll find a way to call you paranoid and a fear monger over this post, C. We shall see….

  3. I did find the idea that customs officials should be searching people’s iPods a bit silly. After all due process requires that the accuser prove guilt, not the other way around. so if they find 30GB of mp3s on my pod, thye have to somehow prove i got them illegally- pretty much impossible. Much of the attempted changes in copyright law seem to have to do with reversing this order though- guilty until proven innocent.

  4. Ever hear of the ten thousand paper clip rule?

    When you make out your budget, you ask for everything you really want, then you add some crap for the auditors to cut, so they can feel useful and empowered.

    “You don’t need those ten thousand paper clips! I shall deny you!”

    “Oh Brer Fox, don’t you throw me in that briar patch!

    The rule works for commercial contracts and legislative proposals, too.

    The US will get everything they actually wanted while you’re patting yourselves on the back for denying them their ten thousand paperclips.

  5. As much as I don’t want to look like I’m wearing a tin-foil sombrero, things like this are genuinely frightening.

    What this really boils down to is ultra high level Corporate lobbying from the Entertainment industry, in order to be able to trample on rights of individuals, or at the very least, to be able to sic some form of law enforcement on anyone they want.

  6. Wait, am I completely misreading this post? The last sentence says that the provisions have been dropped, meaning that these horrible provisions are not likely to be in the final treaty.

    The “USA caves” means that that, by extension, the entertainment lobby caves, not that the USA caves TO the entertainment lobby, right?

    So this is a good thing, right?

  7. @sweetcraspy

    Even if they can’t search your devices at border crossings, ISP’s are still going to be bound by international law to monitor your internet (and computer) usage and report any vaguely suspicious activity to whoever they are gonna charge with enforcing this. I’ll see you all in room 101.

  8. To quote Slashdot…

    European Parliament today adopted Written Declaration 12/2010 which basically tells the Commission to all but drop the negotiations. From the article: ‘Citizens from all around Europe helped to raise awareness about ACTA among Members of the European Parliament (MEPs) by collecting, one by one, more than 369 [of the MEPs’] signatures. With Written Declaration 12/20103, the European Parliament as a whole takes a firm position to oppose the un-democratic process of the Anti-Counterfeiting Trade Agreement (ACTA), and its content harmful to fundamental freedoms and the Internet ecosystem.’

    Original article right here

  9. For those advocating laptop encryption as a “solution” to the problem of increasingly common data-fishing expeditions at the border: it won’t work.

    So the friendly customs officer has asked you to log on to your laptop so he can “inspect” it. You politely decline. Things will not go well. Expect your laptop to be seized for forensic examination; you won’t see it again for weeks or months. Expect all of your other baggage to be thoroughly tossed. Expect to be detained by customs for several hours, just because they can. And, in this modern era of instant access to nationwide databases, expect your customs record to be flagged as “suspicious”, making every subsequent entry into the country an hours-long ordeal.

    Change the law, or stay completely under the radar. Bear-baiting a border official has always been a spectacularly bad idea, but even more so in this time of unaccountable electronic black-listing.

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