Will proposed treaty make border agents copyright cops?

An Anti-Counterfeiting Trade Agreement (ACTA) under quiet negotiation by several countries including the U.S and Canada is raising concern in some quarters after a leaked document, purportedly offering more details on the nascent agreement, was posted on the Internet.

The document, titled "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement" (download PDF), was posted last week by the Wikileaks whistle-blower Web site. The four-page document was apparently quietly provided to select lobbyists in the "intellectual property industry" late last year -- but not, apparently, to public-interest organizations, according to Wikileaks.

Plans for the trade agreement were announced last October by the office of the U.S. Trade Representative (USTR). At that time, the agreement was described by the USTR as a "major" step in the fight against the global piracy and counterfeiting of intellectual property.

The countries that have been identified as engaged in ACTA discussions are the U.S., Canada, the 27 member states of the European Union, Japan, Korea, Mexico, New Zealand, and Switzerland. In a fact sheet (download PDF) accompanying the announcement, the USTR said that ACTA would focus on increasing international cooperation and information sharing around IP protection, the creation of stronger and standard enforcement mechanisms, and the establishment of a more "effective" legal framework for combating piracy and counterfeiting. Among the legal provisions being considered are those for criminal enforcement, "border measures" and for Internet distribution of IP.

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Importantly, the treaty -- if adopted as proposed -- also has the potential to turn customs and border patrol agents into copyright cops, said Caleb Sullivan, an attorney specializing in international trade and customs law with Becker & Poliakoff, a Florida law firm.

U.S Customs and border patrol officials have already been carrying out searches of laptops and other electronic devices belonging to travelers at U.S borders without any reasonable cause or suspicion, Sullivan said. If ACTA is adopted, it will give these officials a much broader pretext for carrying out such searches, he cautioned. "If the rules are established within this international treaty it would provide further justification from them to engage in this type of behavior," he continued, "and it won't be just at U.S. borders that travelers could be subjected to such searches, but in other countries as well."

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