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Obama Administration Rules Texts of New IPR Agreement are State Secrets

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We have been seeking access to documents relating to negotiations on an important new intellectual property enforcement treaty. The agreement, misleadingly named the Anti-Counterfeiting Trade Agreement, or ACTA, is thought to cover a wide range of intellectual property enforcement issues -- including standards for granting injunctions for alleged infringement of patents or copyrights, damages, seizures of goods in transit, surveillance of Internet digital file transfers, searches of personal property, and a dozen other topics.

There are number of outstanding Freedom of Information Act (FOIA) requests for key documents, by groups like EFF, Public Knowledge, and KEI. In one of our FOIA requests, we asked for 7 specific documents, referenced by the exact title and date of the documents. These documents are the proposals for the text of the agreement.

The texts are available to the Japanese government. They are available to the 27 member states of the European Union. They are available to the governments of Canada, Mexico, New Zealand, Australia. They are available to Morocco, and many other countries. They are available to "cleared" advisers (mostly well connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries. But they are a secret from you, the public.

Today we received this letter from the White House, Office of the United States Trade Representative. Our FOIA request was denied on the grounds that the documents are "information that is properly classified in the interest of national security pursuant to Executive Order 12958."

Here is a link to a PDF of the denial of the FOIA request.

The original FOIA request is here:

January 31, 2009

Dear Stan McCoy

As U.S. co-chair of the TACD working group on intellectual property, and the Director of Knowledge Ecology International, I request, under FOIA, electronic copies of the following documents. I believe these documents are being widely circulated to corporate lobbyists in Europe, Japan and the U.S. There is no reason for them to be secret from the American public.

James Love, Director, KEI

Anti-Counterfeiting Trade Agreement
Discussion Draft: October 16, 2008

Anti-Counterfeiting Trade Agreement
May 20, 2008, and the EU proposals for modifications of the Japan U.S. proposal, dated 7 July 2008

3. Anti-Counterfeiting Trade Agreement, EU proposal: September 23, 2008

4. Anti-Counterfeiting Trade Agreement (ACTA)
Non-Paper on institutional issues under the Agreement. June 9, 2008

5. Anti-Counterfeiting Trade Agreement (ACTA), summary of comments on Border Measures

Anti-Counterfeiting Trade Agreement
Discussion Draft July 23, 2008
Comments added September 26, 2008

7. Anti-Counterfeiting Trade Agreement
Discussion Draft: May 8, 2008