The European Union's privacy chief has called for transparency in the creation of a global intellectual property trade agreement, which is being negotiated in secret by countries including the US, Australia and the EU.
In an official opinion published on Monday, Peter Hustinx warned that the Anti-Counterfeiting Trade Agreement (Acta) negotiations raise "significant issues as to the impact of the measures taken to combat counterfeiting and piracy on individuals' fundamental rights, and in particular their right to privacy and data protection".
Hustinx, the European Data Protection Supervisor (EDPS), said he "particularly regrets" that the European Commission did not consult him on the content of the agreement. Not having access to the text being negotiated by the EU, the US, Australia and others, he framed his opinion as "guidance to the Commission on the privacy and data protection related aspects that should be considered in the Acta negotiations".
"The EDPS strongly encourages the European Commission to establish a public and transparent dialogue on Acta, possibly by means of a public consultation, which would also help ensuring that the measures to be adopted are compliant with EU privacy and data protection law requirements," Hustinx said.
According to the EU trade commission, Acta "aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy". The Commission — like all other participants in the negotiating process — has not made publicly available any of the text being discussed.
Hustinx wrote that, even if Acta is only meant to pursue large-scale intellectual property infringements, "it cannot be excluded that activities of ordinary citizens might be captured under Acta, especially as enforcement measures take place in the digital environment".
He urged guarantees to protect citizens' privacy and data-protection rights, and pointed out that such rights applied to all individuals, including those who are potentially involved in counterfeiting and piracy activities.
"Privacy and data protection must be taken into account from the very beginning of the negotiations, not when the schemes and procedures have been defined and agreed and it is therefore too late to find alternative, privacy-compliant solutions," Hustinx wrote.
The Acta negotiations have been ongoing since 2007, with the most recent round of talks taking place in January in Mexico.
Several leaked negotiation documents have appeared over the past few months, including an EU commentary from October that referred to "termination of subscriptions and accounts" and noted that "the US proposal provides for both civil and criminal protection against copyright infringement" — which goes beyond anti-piracy sanctions that are currently in place.
In the last week, another document — purporting to be a recent US proposal for internet copyright enforcement — was anonymously uploaded to Google Groups. This document suggested that ISPs and other "online service providers" should have to take down copyright-infringing content. It also said that all countries signing up to Acta should make DRM circumvention — or even creating or circulating a technology that is intended to break copyright protection — a civil and criminal offence.
ZDNet UK understands from sources close to the process that the negotiating parties intend to have Acta wrapped up and signed by the end of 2010.