The anti-counterfeiting trade agreement (ACTA) being negotiated in secret by the US, EU and others potentially runs roughshod over European data protection requirements, European data protection supervisor (EDPS) Peter Hustinx said Monday.
"Intellectual property is important to society and must be protected [but] it should not be placed above individuals' fundamental rights to privacy and data protection," Hustinx said in statement.
His statement follows the leaking of part of the draft ACTA on Friday, which revealed plans to make internet service providers (ISPs) liable under civil law for the content of messages distributed on their networks.
The leak also revealed that negotiators, led by the US, want ISPs to monitor the content on their networks and to sever internet connections of subscribers who repeatedly upload or download copyright-protected content without permission.
The trade agreement aims to crack down on the sharing of files containing music and movies over the Internet, as well as on illegal counterfeiting of goods.
Hustinx criticised the European Commission, which is negotiating the agreement on behalf of the EU, for not consulting him "on the content of an agreement which raises significant issues as regards individuals' fundamental rights," the EDPS's office said in the statement.
In particular he is worried that an international treaty to fight piracy on the Internet "could include the imposition of obligations on ISPs to adopt "three strikes Internet disconnection policies" - also referred to as "graduated response" schemes, the EDPS statement said.
Under the draft trade agreement, to avoid being sued by a record company or Hollywood studio for illegally distributing copyright-protected content, an ISP would have to prove that it took action to prevent the copyright abuse, and in a footnote the draft agreement gave an example of the sort of policy ISPs would need to adopt to avoid being sued by content owners:
"An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat offenders," the leaked text states.
Terminating someone's subscription is the graduated response enacted in France last year that sparked widespread controversy. The French law is dubbed the "Three Strikes" law because French ISPs must give repeat file sharers two warnings before cutting off their connection.
The EDPS suggested that instead of getting ISPs to snoop on their subscribers, "less intrusive solutions with a limited scope should be considered," such as "targeted ad hoc monitoring" of some Internet traffic, instead of the blanket surveillance proposed in the draft ACTA.
He also called for safeguards for citizens' privacy. "The EDPS calls on the E.U. to implement appropriate safeguards to all data transfers made in the context of ACTA. Such safeguards should take the form of binding agreements between EU senders and third country recipients," it said in the statement.
Hustinx's office also expressed concern about the secrecy of the negotiations that have been ongoing for two years, and which aim to wrap up by the end of this year, and called for a "public and transparent dialogue on ACTA, possibly by means of a public consultation."
The lack of transparency surrounding the talks has sparked an outcry from civil liberties groups and academics, who argue that a trade agreement that will impact on Internet users around the world should be negotiated in public.
Some are calling into question the legality of the secret ACTA talks, particularly in Europe, where members of the European Parliament should be allowed to see such negotiating documents.
The Commission has regularly sent memos to the Parliament informing MEPs about progress in the international negotiations, but it has so far refused to share the draft texts being formulated.
A Commission official involved in the negotiations admitted that some in the Commission are uncomfortable about the lack of transparency in the ACTA negotiations.
"The fact that the text is not public creates suspicion. We are discussing internally whether the negotiating documents should be released," he said, but added that even if it was agreed in Brussels that the documents should be made public, such a move would require the approval of the E.U.'s ten ACTA negotiating partners.
The participating countries in ACTA are the U.S., the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco, and the United Arab Emirates.
Their next face-to-face meeting will take place in April in New Zealand.
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