EFF, Public Knowledge Drop ACTA Lawsuit, Realizing 'National Secrets' Claim Will Block Them

from the really-unfortunate dept

Thu, Jun 18th 2009 1:17am — Mike Masnick

With the Obama administration bizarrely claiming that documents pertaining to negotiations over ACTA, the industry-written treaty that will push countries to change their copyright laws, are somehow a state secret, EFF and Public Knowledge have reluctantly decided to drop their lawsuit to try to open up the proceedings and get access to the documents (freely shared with industry lobbyists, but kept secret from consumers or consumer watchdogs). Basically, they realized that by claiming it's a national secret, there was no way the lawsuit would get anywhere. The whole situation is really unfortunate. What a shame that the administration would be covering up for an entertainment industry's attempt to increase protectionism for its own broken business model, by claiming it was a "national secret."

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Filed Under: acta, lawsuit, national secrets
Companies: eff, public knowledge

38 Comments

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Joe Barnhart, 18 Jun 2009 @ 1:20am

New openness in action...
I thought the new Obama administration was supposed to be honest, forthright, and above all OPEN and TRANSPARENT. Not exactly working out like the promises.
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- Anonymous Poster, 18 Jun 2009 @ 2:01am
  
  Re: New openness in action...
  Well, you see, this is the MPAA and RIAA they're talking about here. Totally understandable situation.
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- Anonymous Coward, 18 Jun 2009 @ 4:15am
  
  Re: New openness in action...
  Surely you jest? Anyone who though we were in for "change" was only fooling themselves. The only change was to go from Republican to Democrat and that is no change.
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  - DS, 18 Jun 2009 @ 7:30am
    
    Re: Re: New openness in action...
    Well.. there WAS a change... from bad to worse.
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- Anonymous Coward, 18 Jun 2009 @ 12:46pm
  
  Re: New openness in action...
  Quite a turncoat. Says one one thing, does another. Don't hold your breath waiting for universal health care either.
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Blatant Coward, 18 Jun 2009 @ 2:03am

Oh Yeaaaaaaaahhhhh!
In before "Meet the New boss, same as the old" reference.
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Anonymous Coward, 18 Jun 2009 @ 2:04am

Corruption sucks.
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Anonymous Coward, 18 Jun 2009 @ 2:39am

Maybe an end run...
...to some other friendly government like Canada would work. Perhaps we should ask them what's in ACTA?
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- Hephaestus (profile), 18 Jun 2009 @ 6:44am
  
  Re: Maybe an end run...
  Just go to WikiLeaks......
  
  http://wikileaks.org/wiki/Special:Search?search=ACTA&go=Go
  
  http://wikile aks.org/wiki/Classified_US%2C_Japan_and_EU_ACTA_trade_agreement_drafts%2C_2009
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imfaral (profile), 18 Jun 2009 @ 4:43am

Change
yeah right..... go Obama
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- Anonymous Coward, 18 Jun 2009 @ 1:28pm
  
  Re: Change
  yeah right..... go Obama
  
  And don't come back.
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bob, 18 Jun 2009 @ 5:51am

Sham Wow
Obama is a Marxist progressive,
We are going from a Republic to a Nationalist Fascist state.
I only hope he starts to redistribute the wealth of people like George Soros
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- Matt Tate (profile), 18 Jun 2009 @ 9:42am
  
  Re: Sham Wow
  The only thing worse than your paranoia is your miserable understanding of socioeconomic models. If Obama was a Marxist, wouldn't he advocate violent class revolt just as Marx did? And would he also try to create a Nationalist Fascist state, when Marx despised both nationalism and government authority, opting instead for workers' control of industry? The only people whose wealth George Soros redistributed was his own, him being a very wealthy philanthropist and all. In conclusion, you suck at trolling.
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  - Anonymous Coward, 18 Jun 2009 @ 11:09am
    
    Re: Re: Sham Wow
    well, his formative experiences in politics were as a rabblerouser in chicago...
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CleverName, 18 Jun 2009 @ 5:53am

Super Secret Club
Do these people really think they will receive public support of secret agreements, details of which may never be known ?
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- bikey (profile), 18 Jun 2009 @ 9:55am
  
  Re: Super Secret Club
  Public support? Since when was that an issue? The 'public' neither knows, understands, nor cares, and 'support', well...
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- Anonymous Coward, 18 Jun 2009 @ 11:24am
  
  Re: Super Secret Club
  Look at George Bush's approval ratings and tell me if public support really did anything to change his stupidity?
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Mechwarrior, 18 Jun 2009 @ 6:09am

I can see why the Obama administration lost 20 percentage points since April amongst independent voters. This is turning out to be a crapshoot of consistent policy.
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discojohnson, 18 Jun 2009 @ 7:08am

Nothing to see
Polititians are polititians, regardless of running platform, message, or the side of the bed they sleep on. With absolute power comes tremendous pressure from those that got you there. He's looking to reelection, not America's future.
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Anonymous Coward, 18 Jun 2009 @ 7:29am

There shouldn't BE any national secrets. At all.
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- Ummmm Yea, One to Go Please, 18 Jun 2009 @ 7:36am
  
  Re:
  Yea, sorry about kicking over your rock there buddy! We'll be sure to put you back in your hole and replace the rock ASAP.
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Anonymous Coward, 18 Jun 2009 @ 7:37am

Well, this just means that once content creators (you know, the real ones who don't see commercialization past paying the immediate bills) will probably shun Commercial Copyright and adopt alternative licensing such as Public Domain or Creative Commons.

Give it a few years for it to circle around the creative communities. Musicians and artists are already pissed off, they just need to re-focus their effort on the politicians responsible.
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Sean T Henry (profile), 18 Jun 2009 @ 7:42am

"Basically, they realized that by claiming it's a national secret, there was no way the lawsuit would get anywhere. The whole situation is really unfortunate."

I find that it COULD be fortunate. Who in this protectionist day and age would allow a treaty that contains "State Secretes" to be brought to the table and given to a foreign entity.

Oran's Dictionary of the Law (1983) defines treason as: "...[a]...citizen's actions to help a foreign government overthrow, make war against, or seriously injure the [parent nation]."

If the ACTA contains state secretes would that not possible, make it possible, to seriously injure the parent nation (USA). I think that it would and any person approving and releasing the ACTA document should be charged with treason.
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- Dark Helmet (profile), 18 Jun 2009 @ 8:09am
  
  Re:
  "If the ACTA contains state secretes would that not possible, make it possible, to seriously injure the parent nation (USA). I think that it would and any person approving and releasing the ACTA document should be charged with treason."
  
  Please tell me I'm missing the /sarcasm tag. It's a treaty to strengthen copyright agreements between nations. What "dangerous" state secrets could that possibly contain, other than associations between industry and politicians, which would be dangerous to the politician, not the State?
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  - Sean T Henry (profile), 18 Jun 2009 @ 9:14am
    
    Re: Re:
    I wish that it was missing a /sarcasm tag.
    
    "What "dangerous" state secrets could that possibly contain"
    
    Thats the thing we do not know its a "STATE SECRETE". If they are not willing to release the treaty to the public for that reason then it is only safe to assume that the information could harm the USA.
    
    So there for the treaty should be scrapped or have all state secretes removed. There is NO reason to have state secretes in a treaty unless to commit treason.
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    - Dark Helmet (profile), 18 Jun 2009 @ 9:59am
      
      Re: Re: Re:
      "I wish that it was missing a /sarcasm tag."
      
      ....me too.
      
      "Thats the thing we do not know its a "STATE SECRETE". If they are not willing to release the treaty to the public for that reason then it is only safe to assume that the information could harm the USA."
      
      Why is it safe to assume that? Why not assume, as I do, that the power to label things state secrets will be abused to hide things? Most importantly, what "state secrets" are involved in the wording of this treaty that is unsafe to share with the American public, or at least watchdog groups, but is okay to share with the FOREIGN GOVT. we're entering into the treaty with? That doesn't make sense.
      
      "So there for the treaty should be scrapped or have all state secretes removed. There is NO reason to have state secretes in a treaty unless to commit treason."
      
      Good, we agree, but I'd go one further. My government has proven itself to be so corrupt that it should no longer be allowed to have state secrets. It's time to open everything up, to us the public, and even to the enemies abroad. If that makes us less safe, then so be it. I'd rather we be less safe and know EXACTLY what the fuck is going on.
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- Anonymous Coward, 17 Mar 2010 @ 12:57pm
  
  Re:
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Dark Helmet (profile), 18 Jun 2009 @ 7:57am

Sigh
"With the Obama administration bizarrely claiming that documents pertaining to negotiations over ACTA, the industry-written treaty that will push countries to change their copyright laws, are somehow a state secret"

It's NOT bizarre once you understand that the "state secret" is most likely that the State is run by corporations. Face it, democracy was discarded long ago in favor of corporatocracy.
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Bettawrekonize, 18 Jun 2009 @ 9:45am

The EFF should drastically change its strategy. What it should do is focus its attention on buying up as many patents as it can (especially during patent auctions, don't let other entities buy those patents, entities that can then sue), promise not to sue anyone for patent infringement unless they sue someone else first. Then it can come to that persons defense and counter-sue with its own patent infringement lawsuits. Unfortunately this doesn't really do much to counter patent trolls (Non practicing Entities). :(
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- Anonymous Coward, 18 Jun 2009 @ 9:48am
  
  Re:
  But at least if it buys up as many patents as it can and it promises not to sue (except under very specific conditions) it has effectively invalidated those patents.
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- Anonymous Coward, 18 Jun 2009 @ 9:56am
  
  Re:
  The EFF should also focus its attention on being the first to apply for as many new patents as it can (especially obvious patents) and, when it gets those patents, promising others not to sue unless they sue someone else first (and employing the above strategy).
  
  Instead of taking such a reactive strategy (trying to fix the problem after the fact) it should take a more proactive strategy.
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  - Anonymous Coward, 18 Jun 2009 @ 12:06pm
    
    Re: Re:
    Also, perhaps the EFF can ask for patent donations where people donate their patents to the EFF for use to further their cause (or, if there has to be consideration, they can "sell" the patent for a penny and then they can donate a dollar or whatever back to the EFF).
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coolridge, 18 Jun 2009 @ 11:15am

They should keep fighting
Recently the 7th Appellate Court decided that certain determinations by the State Department though not subject to judicial review (as in this case) were still subject to being transparent in their ways and means in creating the material statement (in this case that these negotiations are in fact secret to some level). The court stated that: "A designation by an unnamed official, using unspecified criteria, that is put in a desk drawer...is the sort of tactic usually associated with totalitarian régimes. Government must operate through public laws and regulations."

Now, the issue isn't that they don't have the authority, but that they cannot simply wave about EO 12958 and state that its subject to its security classifications. No, there is a due process to this and an original classifying agency that must make the determination. Also the determination has no room for non-defined terms. The terms are very clearly defined in EO 12958 and yet in any release so far from (previously) the Bush Administration and now the Obama Administration is "get off our backs, we have Presidential Authority". Well big deal, your power comes from me, the citizen and I am asking for due process and transparency. Who the hell do they think they are?

Plus are they saying that industry insiders and PACs have some sort of official "clearance" to receive this information and debate it with them??? I think not, and again that would have to be transparent in its ways and means to the public. Hell they can't even fully claim that this is purely a "foreign relations matter" subject to arbitrary classification since the Treaty will likely affect U.S. Law. You could drive a truck through this... come on!!

They never should have dropped that suit. A very unwilling plaintiff or a very bad and lazy lawyer was at fault for dropping this. Shameful.
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btr1701 (profile), 18 Jun 2009 @ 12:35pm

Secrets
Personally, I think the EFF should amend its complaint. Instead of challenging the proceedings directly, they should challenge the claim of secrecy. If the administration is really invoking the National Secrets Act, then they have to follow it and one of the things that entails is releasing classified information only to those who hold a valid security clearance, something I’d be willing to bet no RIAA or MPAA executive has. So by including industry reps in these negotiations, the administration legally forfeits the ability to claim they proceedings are classified.
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- Anonymous Coward, 18 Jun 2009 @ 1:06pm
  
  Re: Secrets
  ...one of the things that entails is releasing classified information only to those who hold a valid security clearance, something I’d be willing to bet no RIAA or MPAA executive has.
  
  Ordinarily, getting a security clearance involves completing an arduous background investigation, proof of need to know, etc.. However, those requirements can be waived by the President and those he authorizes to do so. Using that process, I've read that they're basically handing out security clearances like candy to entertainment industry lobbyists and executives these days. (Opposing groups? No.) So they're probably covered there.
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  - coolridge, 18 Jun 2009 @ 2:03pm
    
    Re: Re: Secrets
    [b]"However, those requirements can be waived by the President and those he authorizes to do so. Using that process, I've read that they're basically handing out security clearances like candy"[/b] I have never heard of this power being given to the President. 5 U.S.C. 552.b(1) which provides further reasons why a FOIA request can be denied states that these matters which are exempt from the provisions shall be specifically authorized under criteria established by an Executive Order to be kept secret in the interest of National Defense or Foreign Policy and are in fact properly classified pursuant to such Executive Order (and such delegates of course). So no, even in there is only the statement that there has to be a criteria which can be established by Executive Order or be mandated to be classified by an Executive Order but under the current guiding EO there still must be an original classifying agency and a specific clearance definition provided. The only agency that is authorized to administer such clearances, again as delegated by EO that we all have access to is the Defense Security Services which handles all such clearance requests for many agencies that are not even defense related (Small Business Administration even... *blech!). If there is such a waiver available to the President, it is not only not in the national interest to have such an ability granted to the chief executive (says me and everyone else who loves freedom and transparent government) but it is also an authority provided in some document which currently is eluding my copious grasp of the situation. I look forward to being proved wrong so I can at least say that this broken system is, indeed, at least a system and not arbitrary rule.
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    - Anonymous Coward, 18 Jun 2009 @ 3:42pm
      
      Re: Re: Re: Secrets
      ...established by an Executive Order...pursuant to such Executive Order...
      
      The President IS the Executive. It is within his power. And Executive Orders themselves can also be secret.
      
      ...as delegated by EO that we all have access to...
      
      Which wouldn't include any secret orders.
      
      If there is such a waiver available to the President, it is not only not in the national interest to have such an ability granted to the chief executive (says me and everyone else who loves freedom and transparent government) ...
      
      I agree that it's being abused, but, for example, what do you think keeps the President from being prosecuted for disclosing "state secrets" when talking to foreign leaders about certain issues? Do you think those foreign leaders have all been through DSS investigations and "cleared" for that information? No, but the Executive can basically waive security requirements, even on the spot, when he wants to.
      
      Oh, and the DSS is part of the Department of Defense, of which the President is the Commander in Chief. So he's pretty much their boss anyway.
      
      I look forward to being proved wrong so I can at least say that this broken system is, indeed, at least a system and not arbitrary rule.
      
      Presidential authority. That's why this abuse falls squarely in his lap. If you research you can probably find some more references to what I'm talking about, if you really want to. I'm no lawyer, just going on my non-lawyer personal experience with the subject. Of course, you wouldn't have access to secret Executive Orders, or if you did, you wouldn't be able disclose them to us anyway.
      
      And "arbitrary" is in the eye of the President, it seems.
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Anonymous Panda, 21 Feb 2010 @ 4:09pm

You all smell like shit. Greetings from slashdot.
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