In the wake of the public outcry in the United States over proposed domestic antipiracy legislation, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), international regulation is also taking a hit. The edifice of the Anti-Counterfeiting Trade Agreement (ACTA) seems to have crumbled. This time, however, it happened in Europe.
The European Commission has suspended ACTA’s ratification, shunting it instead into the European Court of Justice (ECJ). This is read by some as a means of putting the debate on ice for a year. ACTA’s Commission proponents seem to hope that a favorable ruling by the ECJ will provide the political cover necessary to defuse their critics’ arguments that the agreement is a violation of fundamental rights to internet freedom and privacy.
But Brussels’ attempt to disarm opponents through a court decision is a fundamental misreading of the scope and intensity of the opposition to ACTA. Major protests took to the streets of European capitals earlier this month, with more than one hundred thousand people in Germany alone. These come on the heels of demonstrations in Warsaw and Prague, and coordinated denial of service attacks by the hackivist group Anonymous on the government websites of Poland and the Czech Republic.
ACTA is a multinational compact that aims at stemming commerce in counterfeit products, generic medicine and web-based copyright infringement. The agreement was signed in Japan in October 2011 by thirty-one governments, mostly advanced industrial economies, including the United States, EU member states, Japan, Australia and New Zealand. Of middle- and low-income countries, only Morocco came on board. Russia and China, two of the most notorious countries for their intellectual property rights (IPR) violations on- and offline, stayed away.
ACTA could be the latest casualty of a negotiating climate in Europe that has traditionally taken place without the antiseptic of public debate. The battle lines have already shifted on the issue as the rumbling opposition to ACTA crested in the European Parliament (EP) and in Central Europe.
The agreement’s most controversial section centers on the potential effects that its provisions could have on IPR enforcement online. The text requires Internet service providers (ISPs) to identify users deemed to be violating a copyright for possible legal recourse. Critics of the agreement have stated that it provides a framework for a much more intrusive relationship between law enforcement, ISPs and IPR holders on one hand and Internet users on the other. Some hint at the creation of a culture of perpetual surveillance online that could radically alter the Internet’s ecology of freedom and openness.
In the United States, Congress has not had a say in the agreement. Some on Capitol Hill, notably Senator Ron Wyden (D-OR), have questioned the administration’s ability to enter into a binding legal agreement without Congressional authorization. Washington is seen as the agreement’s primary proponent, and it was effectively ratified when President Obama signed it on October 1, 2011. That moment passed with virtually none of the public debate and fanfare that surrounded the signings of SOPA and PIPA in January 2012.
In Europe, however, national legislatures and the European Parliament (EP) will play a role in approving the agreement. Currently, five EU member states have not signed the agreement. While most originally signaled that they would sign, many have since halted the process. The European Commission has committed itself to the agreement with the lead negotiator, Dutch commissioner Neelie Kroes, tweeting that “ACTA does not limit freedom. important for ppl 2 understand all the facts. nothing changes for individual users in EU.”
The Commission is frantically attempting to dispel perceived similarities with the two maligned U.S. proposals, SOPA and PIPA. Although trade agreements have traditionally been negotiated behind closed doors, the degree of opacity in the ACTA negotiations—even from stakeholders involved in the process such as legislators and affected industries—has been marked, presaging the backlash that has taken place in the EU over the past month.
Since the introduction of the Lisbon Treaty in 2009, the European Parliament has positioned itself as a guardian of privacy, data protection and freedom from heavy policing by states. Armed with its newfound role in international agreements, the EP promptly struck down the EU’s accord with the United States on terrorist-finance tracking, known as SWIFT, on the grounds that it did not properly safeguard Europeans’ data-privacy rights. The EP only approved SWIFT after a painstaking renegotiation. The Passenger Name Record (PNR) agreement between Brussels and Washington, which provides for sharing of information about persons in transit, is currently undergoing a similarly arduous process.
Already grumbling about its lack of consultation and the secrecy with which ACTA was negotiated, some in the EP were salivating at the opportunity to reject the high-profile agreement. The French EP member responsible for drafting the body’s opinion on ACTA resigned in protest to the lack of open discussion and consolation with his legislature. At the time, he skewered the terms under which the agreement had been negotiated, describing them as a “masquerade.” The Austrian leader of the S&D, the EP’s main Center-Left group, stated: “Our main criticism relates to copyright enforcement on the internet and the definition and monitoring of activities online. The text is too vague and we need to have clarification of the role of Internet service providers (ISPs) in policing the agreement.” The Socialists released a statement condemning the agreement as “wrong in both content and process,” and the party leader, the former Bulgarian prime minister Sergei Stanishev, said that he was “proud” that his party was the first to come out against the agreement.
ACTA faced similarly dismal prospects in Germany and Central Europe. Some governments, such as those of Poland, Slovakia and Slovenia, see the agreement as a potential violation of privacy and an abdication of users’ rights. In Warsaw, demonstrators put a mask of the seventeenth-century Catholic protest leader Guy Fawkes on a statue of Ronald Reagan and threatened to do the same to other statues throughout the country. Slovenia’s ambassador to Japan has publicly apologized for signing the agreement, which she said she did out of “civic carelessness.” The Romanian government has been publicly admonished for its signature, and the Bulgarian parliament is unlikely to ratify the Sofia government’s signature, making ACTA effectively meaningless.
Europe as Harbinger
But ACTA could be just the beginning. In the coming years, the European political landscape will be a particularly fertile testing ground for the emergence of privacy, Internet-freedom and users’ rights as a tenet of foreign policy and domestic politics. The current patchwork of legal cultures on piracy and Internet freedom is breathtaking. France, for example, has one of the most stringent “three-strikes” antipiracy laws in the Western world. Paris’s 2009 loiHadopi compels French ISPs to provide information on users of pirated content to authorities who in turn reserve the right to prohibit a user’s Internet access for up to a year upon the third offence.
But in Germany and the former communist states of Central Europe, where history is rife with examples of states using vaguely worded laws as tools for invasive domestic surveillance, privacy and Internet openness as core rights have worked their way into political discourse and even into party structure. The Pirate Party took more than seven percent in the European elections in Sweden in 2009. Germany’s Pirate Party took 8.9 percent of the vote in the Berlin state elections in 2011 and now polls seven percent nationally. Spain and the Czech Republic’s Pirate Parties have won municipal representation on city councils.
The rise of the Pirate Party in Europe could be an anomaly, but the steady organizational building is reminiscent of the rise of another pan-European one-issue group—the Green Party. Once considered an ephemeral expression of environmental concern, the Green Party has become a mainstay of the New Left in continental Europe, serving in governments in states as diverse as Germany, the Czech Republic and Ireland. The confluence of issues around privacy, data protection, net neutrality and open sourcing could become a permanent fixture in the European political landscape, just as ecological issues have in the past thirty years.
Tyson Barker is director of transatlantic relations at the Bertelsmann Foundation.
Image: Christian Engström