Three-strikes still on the table in ACTA

ACTA transparency still lacking

A document from the latest ACTA negotiation round in New Zealand has been released. Here it is.

It is a sanitized version of the draft agreement text, where all information about which positions are held by which countries has been removed. But at least it is something. It shows that the European Parliament’s resolution demanding transparency is having some effect.

But it appears that we are still quite a bit away from full transparency. They are still trying to hide things from both the European Parliament and the general public.

We can see an example of this in the highly controversial ”Internet Section” of the agreement. This is Section 4 on page 18 in the official document, with the title ”Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment”.

This is where we should be looking for ”three-strikes” provisions, and other measures for shutting people off the Internet without any due process or involvement by the courts.

When discussing ”three-strikes”, it is important to understand how this kind of provisions may be introduced. It will not be by openly requiring governments to mandate it. You can say what you will about the copyright lobby, but they’re not entirely stupid. They are a bit more subtle than that.

Instead of explicitly demanding that countries introduce three-strikes measures, they do it by attacking the Internet service providers.

ISPs are generally protected from being held responsible for what their customers do on the net. This is called ”safe harbour” or ”mere conduit”, and is an absolute necessity for any Internet service provider. If they do not have that protection, there is simply no way that they can take the risk of operating their service.

The interesting thing to look at is what conditions an ISP has to fulfill in order to qualify for ”safe harbour” or ”mere conduit” protection, and what measures they have to take against their customers if they want to be safe.

In the released document, it is true that the phrase ”three-strikes” is not mentioned explicitly anywhere. But in the previous leaked version of the document, it actually  was.

It was mentioned in a footnote, as an example of an ”appropriate measure” that ISPs could take against their customers, if the ISP wants to make sure that it does not expose itself to unlimited liability for things that its users have done.

If you compare the officially released version with the previous leaked version, and look at page 21 in the official version, you will find an interesting difference in the footnotes.

In the official version, footnote 58 on page 21 reads:

[58] At least one delegation proposes to include language in this footnote to provide greater certainty that their existing national law complies with this requirement.

In the leak, in exactly the same place, you find the three strikes footnote:

[29] An example of such a policy is providing for the termination in appropriate circumstances of subscriptions [US: and] [AUS: or] accounts on the service provider’s system or network of repeat infringers.

In other words, the US has not given up on imposing a three-strikes regime in Europe. They have just hidden the reference to it in the version that was officially released. With the consent of the EU Commission, obviously.

Is this how the Commission interprets its obligation to keep the EU Parliament fully informed at all stages of the procedure?

It appears so. I think that’s pretty disgraceful.

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Previous articles on ACTA

Andra som skriver om ACTA: Michael Geist, Rick Falkvinge (PP), ACTA-bloggen, Hax, DN,

Andra bloggar om: piratpartiet, eu, politik, informationspolitik