BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. For several years now, dozens of parties - including the U.S., Japan and members of the European Union - have been negotiating what’s called the Anti-Counterfeiting Trade Agreement, or ACTA. It’s a kind of treaty involving copyright and intellectual property rights, only it’s been hammered out largely behind closed doors and subject to virtually no public input. Earlier this year an official draft of the treaty was finally released, allowing legal scholars to see what our trade reps have been up to, and many are not happy. Harvard Law School’s Jonathan Zittrain, and about 70 other law professors from around the country, have written an open letter to President Obama raising a number of concerns and objections - for starters, says Zittrain, the Obama administration’s plans to treat ACTA not as a treaty but as a, quote, “executive agreement” requiring only a signature from the president.
JONATHAN ZITTRAIN: Which is very different from a formal treaty where the president signs on the dotted line and then submits it to the United States Senate for ratification, and an executive agreement of this sort isn't allowed to be inconsistent with the law of the United States.
BOB GARFIELD: Now, the U.S. trade rep has said, oh, no problem. This will not be in conflict with any existing U.S. laws. But can we take his word for that?
JONATHAN ZITTRAIN: The thing here is this agreement has gone through several drafts, and there are at least earlier drafts, that we only know of because they were leaked, that seem to be baldly in conflict with U.S. law. The most recent draft has been a little bit watered down, and this draft is the one that has finally been officially released for people to take a look at. And so there may be ways to try to delicately steer it in between, and that can hinge on just the addition or subtraction of one or two words.
BOB GARFIELD: Now, you mentioned that some of the provisions are baldly in conflict with existing law. Give me a for instance.
JONATHAN ZITTRAIN: Internet service providers could actually become liable for copyright infringement that is said to have been done by their users, and that’s something for which, in a hard-fought law passed in 1998, the Digital Millennium Copyright Act, there were actually very careful provisions that said so long as ISPs do the following kinds of actions, we guarantee they can't be held responsible for any infringement that happened up to the time that they found out about it. And at least earlier drafts of the agreement seemed to contravene that. More recently I'm not as sure that that’s the case. These are really complicated things and this agreement, when finally shared officially, rather than leaked, was shared at a point where the trade rep’s office said, there will be no public comment. That time has passed, and this is the horse we're riding into town.
BOB GARFIELD: This is all kind of jaw-dropping because [LAUGHS] it seems to me that one of the things that the Obama administration got into office complaining about was the exertion of excessive executive authority. How does it justify the way it’s gone about negotiating ACTA and kind of forcing it on the American people?
JONATHAN ZITTRAIN: You have a trade rep that’s wanting to push for an agreement that benefits the parties that say they are most affected, and of course the most focused parties in this may well be the traditional mainstream content industries. And they indeed have been consulted and a part of this process, so when we say secret, it’s not as if it’s classified. There have been outsiders to the government who have been welcomed into the process. And it’s not clear to me that they don't have a role there. It’s just it’s been uneven. There are a number of what you might call public interest groups - Public Knowledge, the Electronic Frontier Foundation, the Electronic Privacy Information Center, just within the U.S. alone – that have a lot of expertise, and you bet they have a view on what certain restrictions would do for the average Internet user or for somebody who’s wanting to share stuff on a peer-to-peer network but not infringe copyright, or something that might involve copyrighted material but count as a fair use and therefore be protected by law. These are the sorts of interests that I think were excluded because they're not really on the Rolodex. And, of course, part of it may be, too, that if they should be included, these are the types of stakeholders who when they have a problem with something they tend to shout it from a mountaintop. They really try to gather petitions and get the public [LAUGHS] involved. But you can see sociologically if your job is to somehow get this treaty rocking and rolling that you might have the people that you think are going to shout at you kept as far at bay as possible until it’s a done deal. And I think that’s basically what happened here.
BOB GARFIELD: Well, it sounds eerily reminiscent of Vice-President Cheney’s energy policy deliberations, which included energy companies, oil companies and so forth, and excluded environmentalists, for example. Is this the Obama administration version of Cheney’s Energy Task Force?
JONATHAN ZITTRAIN: But at least with the Cheney example the administration’s defense of it at the time was, look, here’s the Vice-President, he’s heading up some ideas within the administration for various things that would, you know, make [LAUGHS] America better for energy, and these are the people he chose to consult with. You know, that’s it. Take it or leave it. There are lots of problems with that, but that was as far as it went. In this case, what we have is the United States as a party to an agreement that is multilateral. It’s among lots of different governments around the world. And here, as best we can tell – and, again, this is sort of done by leaks – the United States was among those states pushing for the hardest line on intellectual property. When you look at earlier drafts of this ACTA agreement, there really are some things in it that just fly in the face completely of what Congress had already intended. And it’s not as if Congress is, you know, totally fair use and Internet-user-friendly. [LAUGHS] They have their own constituents that they respond to as well. So I would differentiate it a bit from Cheney in a way that might make it a little worse from a transparency point of view because this is the U.S. government advocating as the United States, and pushing back and forth with other countries, without consulting as broadly as it should among it own constituencies.
BOB GARFIELD: So it’s been a couple of weeks since you and your 70 colleagues signed this open letter. Have you heard from the White House?
JONATHAN ZITTRAIN: To my knowledge, you know, we've had representatives going down to the mailbox every day when the postman comes, and it’s empty so far. And, of course, in the parlance of official letters back and forth, these things can take months, without it being anything personal. And, of course, the problem is that they might see the agreement signed and be a done deal before we get a letter back thanking us for our concern, and here’s a signed autograph, and, by the way, I've referred this to the trade rep and, you know, please call the following 800 number. I guess I figure that the letter’s purpose in some way is effectuated as public pressure. It may well have an influence on whether this thing ultimately gets signed.
BOB GARFIELD: Well, Jonathan, as always, thank you very much for joining us.
JONATHAN ZITTRAIN: Thank you.
BOB GARFIELD: Jonathan Zittrain is a professor at Harvard Law School.