[Ip-health] Homeland Security's 2008 letter to USTR: ACTA is a threat to national security

Jamie Love james.love at keionline.org
Fri Apr 22 04:43:24 PDT 2011


Homeland Security's 2008 letter to USTR: ACTA is a threat to national security

On August 7, 2008, Stewart Baker, the Assistance Secretary for Policy
at the Department of Homeland Security, sent a one page letter and a
three page "Policy Position on Border Measures of the
Anti-Counterfeiting Trade Agreement [1]."

Stewart Baker [2] was the General Counsel of the National Security
Agency from 1992 to 1994, and was appointed the first Assistant
Secretary for Policy at the Department of Homeland Security (DHS) by
George W Bush.

In 2008, DHS was concerned that:
"some possible outcome of the ACTA negotiations may harm national
security and the ability of Customs and Border Protection (CBP) to
exercise managerial discretion in setting priorities for intellectual
property right (IPR) enforcement."
According to the DHS position paper on ACTA,

the proposed language on the "Border Measures" section of ACTA could
codify in international law, certain provisions that would be
unfavorable to CBP and, once adopted as an international agreement,
even Congress would be unable to alter the rules to make them more
economically justifiable. .

. . . The cost of enforcing private rights, such as trademarks, can
reasonably be placed on the beneficiary. That is particularly true in
a context such as this; rights holders often have a choice whether to
bring enforcement actions on their own or through border measures.
That choice should not be influenced by the consideration that using
governmental enforcement resources will save the rights holder the
cost of storing and destroying the infringing goods. For these
reasons, if CBP concludes that waiving storage or destruction fees has
created an unhealthy incentive to shift enforcement from the private
sector to government, it should have authority to recommend that fees
for storage and deconstruction be charged to the beneficiary of the
enforcement action.

This section of ACTA could be interpreted as taking away that
authority and protecting rights holders from measures to recover costs
incurred for their benefit. This is imprudent and difficult to justify
on fiscal or policy grounds.

DHS was also concerned about the impact of ACTA on "international goodwill."

2. ACTA would expend international goodwill by requiring other
governments to change organizational and legal structures.
. . .
In essence, this language would encourage foreign customs authorities
to bar imports and exports if the authorities concluded on their own
intiative that the goods might violate copyright or be confusing
similar to trademarked goods. These are sweeping powers to act against
suspected IP violators, and the powers can easily be misused either
intentionally or unintentionally. Misuse could even harm small U.S.
exporters competing with foreign companies favored by local
governments. Generally speaking, the customs agencies of the other
participating countries do not possess the same level of authority as
CBP -- many of them are not designated competent authorities to make
determinations on IPR infringements. This substantially increases the
risk that the sweeping powers wiill be misused. . . .

3. ACTA could limit CBP's discretion in its enforcement of IPR.

. . . DHS has been fully supportive of IPR enforcement, but it does
not support the U.S. Government (USG) entering into international
obligations that would limit CBP's futgure ability to respond to
changing circumsances by reprioritizing all of its enforcement
activities. In particular, the USG shoud not obligate the Department,
through an international document, to pursue IPR enforcement at the
expense of other seriouis enforcement priority, and certainly not at
the expense of the anti-terrorism mission of the Department. . .

. . . In managing relationships with international counterparts, DHS
has and will continue to emphasize resource commitment and cooperation
on priority anti-terrorism mission areas and will appropriately try to
minimize expending our partner's goodwill in areas of lesser priority.

The 2008 DHS concerns about ACTA are relevant today, both as regards
ACTA, and as regards the new proposals on the same issues presented in
the proposed Trans-Pacific Partnership (TPP) trade agreement [3],
which is designed as a binding enforceable agreement.

Source URL: http://keionline.org/node/1117
[1] http://keionline.org/sites/default/files/steward_baker_schwab_7aug2008.pdf
[2] http://en.wikipedia.org/wiki/Stewart_Baker
[3] http://www.keionline.org/tpp
James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.

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