USTR Refuses To Release Congressional Research Service Study On Legality Of ACTA

from the why-is-this-kept-secret? dept

Mon, Mar 28th 2011 7:27am — Mike Masnick

We've talked about how ridiculous it is that the government keeps Congressional Research Service (CRS) reports secret. The organization, which is widely respected and tends to do thorough, objective and useful research, technically produces reports that are in the public domain. However, the recipients of those reports (usually members of Congress or other government employees) often don't want to let those documents out for that very reason. If you're pushing for a certain law, and CRS research proves that there are problems with it, you don't want that info to get out. Of course, if we had intellectually honest politicians (stop laughing!), they would not just publish the research, but would actually use it to guide some of their policy making decisions.

Back in October, you may recall that Senator Ron Wyden, one of the very few elected officials to actually understand and to worry about the implications of ACTA, asked the CRS to study ACTA to see how it would impact US law. That report has been delivered to the USTR, and KEI filed a FOIA request to see the document. However, the USTR has refused to provide the document. The USTR really seems to take a "secrecy first, transparency never" view on all things ACTA, doesn't it? It certainly makes you wonder what's in that report, doesn't it?

KEI is now appealing the rejection, claiming that the USTR's explanation for denying the request is simply not supported by the law. The USTR claims that it can't hand out the document, because it belongs to CRS. This is simply incorrect, as KEI noted in its reply. Of course, it's also unclear why Senator Wyden's office doesn't release the document itself, but the feeling there is that he doesn't want to upset the USTR either.

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Filed Under: acta, crs, transparency, ustr

31 Comments

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Anonymous Coward, 28 Mar 2011 @ 7:32am

it's also unclear why Senator Wyden's office doesn't release the document itself

Perhaps because he is like most politicians, grandstanding and spewing hot air because it resonated with some voters. He is likely less interested in the content of the document (which would require actual work to understand) and more interested in the political grandstanding moment of asking for it.
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- Anonymous Coward, 28 Mar 2011 @ 7:45am
  
  Re:
  It's not grandstanding when Wyden does it. It's only grandstanding when Mike disagrees with the position being espoused. ;)
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  - Anonymous Coward, 28 Mar 2011 @ 7:50am
    
    Re: Re:
    Haha! Work done by your government isn't actually owned by the people. Haha!
    
    It must be a matter of national security.
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    - Anonymous Coward, 28 Mar 2011 @ 7:51am
      
      Re: Re: Re:
      The turrists might steal it! Along with precious bodily fluids.
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      - Keroberos (profile), 28 Mar 2011 @ 8:37am
        
        Re: Re: Re: Re:
        That's why I drink only distilled water, or rain water, and only pure grain alcohol.
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        Hephaestus (profile), 28 Mar 2011 @ 4:02pm
        
        Re: Re: Re: Re: Re:
        "drink only ... or rain water"
        
        I hope you don't live down wind from a reactor, coal fired power plant, highway, chemical plant, or petrochemical plant.
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  - Anonymous Coward, 28 Mar 2011 @ 8:19am
    
    Re: Re:
    I just don't know why Mike can't understand that. I don't think Wyden wants the document released. I think he wants it to stay unreleased so he has something to bitch about that isn't about the facts, just about the process.
    
    If they actually had to debate facts, Wyden would be in trouble because most people's eyes would glaze over after a few paragraphs and few would pay attention to his objections at that point. It isn't about getting the information into the public's hands, it's about grandstanding when the issue is simple, not when it becomes complicated.
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    - athe, 29 Mar 2011 @ 12:28am
      
      Re: Re: Re:
      Sounds about right - if it's too difficult to understand, let's just rubber stamp it. You don't see a problem with that?
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- Ron Rezendes (profile), 28 Mar 2011 @ 9:50am
  
  Re:
  Perhaps because he is like most Anonymous Cowards, grandstanding and spewing hot air because it resonated with some voters. He is likely less interested in the content of the document (which would require actual work to understand) and more interested in the political grandstanding moment of asking for it.
  
  FTFY
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Pixelation, 28 Mar 2011 @ 7:55am

Hey Senator Wyden, If you are worried about what the USTR will do just anonymously send it to Wikileaks. Thanks.
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Wayne Borean (profile), 28 Mar 2011 @ 8:05am

Timing
Could also be a timing issue. Possibly Senator Wyden is waiting for someone to commit themselves to something spectacularly stupid, and then he's going to release it. Politics is after all, the roughest of all the Blood Sports.
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Anonymous Coward, 28 Mar 2011 @ 8:58am

The USTR is raising an issue that does have merit, though whether of not the merit is sufficient to withstand disclosure under FOIA is not clear.

The issue is this. FOIA pertains only to "agency records", i.e., records associated with the executive branch. The CRS is not an agency, but a part of the Copyright Office, which in turn is a part of the legislative branch.

This being the case, I have to wonder why KEI is using FOIA in the first place. In my opinion I see nothing that prevents it from requesting a copy from either the CRS or the Senator from Oregon. While neither have an obligation under law to provide a copy, nothing prevents them from doing so. Frankly, I would have expected KEI to first try the CRS/Senator route before launching off using FOIA.

Of course, since the Senator has the power to release the document, I do have to wonder why he has not done so. Is he playing politics? Does it say something he does not like? Other? Who knows....
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- Anonymous Coward, 28 Mar 2011 @ 9:15am
  
  Re:
  Why, oh why, is Wyden hiding this? Hmmmm... Makes you wonder...
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  - James Love (profile), 28 Mar 2011 @ 9:33am
    
    Re: Re:
    For more context, consider that the report would not have existed if Senator Wyden did not request it from CRS. And, USTR was given the report at a time when USTR was evaluating last minute changes in the agreement, or the content of a possible signing statement. As chair of a Senate subcommittee on trade, Senator Wyden works closely with the USTR. I would be looking now at USTR to release the report. If USTR claims they don't have permission to release the report, and if that is not true, then someone at USTR is lying, or not making much an effort to sort things out.
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    - Anonymous Coward, 28 Mar 2011 @ 10:21am
      
      Re: Re: Re:
      Again, it doesn't excuse the obvious - if Wyden has the report, why doesn't he just release it? Why is he playing games and circling around the issue?
      
      I suspect there are more points to be made playing this game than actually addressing what is in the report.
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      - The eejit (profile), 28 Mar 2011 @ 3:17pm
        
        Re: Re: Re: Re:
        You saw what happened to Bradley Mannign, right?
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- vivaelamor (profile), 28 Mar 2011 @ 2:56pm
  
  Re:
  "The issue is this. FOIA pertains only to "agency records", i.e., records associated with the executive branch. The CRS is not an agency, but a part of the Copyright Office, which in turn is a part of the legislative branch."
  
  I don't think it effects your point, but I'm not sure what you've said here is accurate. As far as I can tell, the CRS is part of the Library of Congress and has no direct link to the Copyright Office, although that is also part of the LoC. More relevant is the fact that if it were part of the Copyright Office then it would likely be subject to the FOIA, as the Copyright Office itself is (despite the LOC not being so).
  
  Those points of detail aside, the argument of the KEI is that the CRS does not retain control of the document: "A record produced by Congress and later acquired by the agency qualifies as an agency record if the agency controls it. U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989)". If that is the case then whether the CRS is subject to the FOIA would be irrelevant anyway.
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  - Anonymous Coward, 28 Mar 2011 @ 3:15pm
    
    Re: Re:
    You are correct. I was incorect.
    
    CRS is an organization within the Library of Congress, and at the same level as the Copyright Office.
    
    This is what I get commenting from memory. I'll be more careful next time.
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James Love (profile), 28 Mar 2011 @ 9:27am

The CRS ACTA report FOIA
CRS will not release these type of studies to the public unless a Member of Congress gives the Ok. Senator Wyden has given the report to the USTR, we believe without any restrictions regarding USTR releasing it to the public. Senator Wyden's office has not released the report to the public. Whether or not USTR can refuse the release the document will depend upon a legal determination of the control it has of the record. As the appeal notes, the mere fact that something comes from the Congress does not exempt it from FOIA. We have done everything we can, including contacting the office of the Senator, to receive and disseminate the report. We expect the report will be informative, but we will not know the conclusions the report has reached, until we see it. If this case ends up before a judge, it will have broader ramifications for FOIA law. In any case, USTR, which is part of the White House, is clearly disregarding the memo on transparency that Obama issued on his first day in office. On a more general issue, Senator Wyden has pushed for transparency of the ACTA negotiations, I think more than any other member of Congress. That says something very good about Senator Wyden, and also something negative about the other members of congress, from both parties.
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- Anonymous Coward, 28 Mar 2011 @ 10:15am
  
  Re: The CRS ACTA report FOIA
  I can tell you I know FOIA backward and forward, and particularly the exemptions. I took a quick look at them and it appears that disclosure might (note- might) be "shoehornable" into Exemption 1, but that does seem a stretch. Hence, it is not an "agency record" is the natural fallback.
  
  The practical concern I have is that arguing back and forth on the issue may very well stretch things out to a point in time where the information becomes stale. It is because of this that were I in your shoes I would be "pinging" on the good Senator for all it's worth. At least that would hold the hope that a copy could be released in real time while the matter is bouncing back and forth in court.
  
  Of course, the Senator is but one person in Congress. Surely there are others, and especially staffers, who could be sweet-talked behind the scenes to release a copy.
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Unanimous Cow Herd (profile), 28 Mar 2011 @ 9:40am

Waiting on a call back..
from Congressman Inslee (D) WA on this matter. Will provide details if/when I hear back.
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Unanimous Cow Herd (profile), 28 Mar 2011 @ 1:35pm

Is this what they wanted?
I got a rather speedy response from my congressman's office. It included a 24 page PDF from the CRS titled "The Proposed Anti-Counterfeiting Trade Agreement: Background and Key Issues. This is dated March 12, 2011. It centers around the usual assumptions (however incorrect) in the "Rationale" portions. Still reading the rest. Mod or Admin can email me if they want a copy to post here.
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- Mike Masnick (profile), 29 Mar 2011 @ 1:15am
  
  Re: Is this what they wanted?
  I got a rather speedy response from my congressman's office. It included a 24 page PDF from the CRS titled "The Proposed Anti-Counterfeiting Trade Agreement: Background and Key Issues. This is dated March 12, 2011. It centers around the usual assumptions (however incorrect) in the "Rationale" portions. Still reading the rest. Mod or Admin can email me if they want a copy to post here
  
  The report being discussed below is from March 12, *2010* not 2011, and appears to be out of date.
  
  I don't believe it's the same report being discussed here.
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  - Geraldine, 29 Mar 2011 @ 1:19pm
    
    Re: Re: Is this what they wanted?
    This is funny, in Mexico every time the goverment asked for a report the IMPI kept sending the same thing over and over, documents discussing key points of ACTA and citing the "Piracy, Film and Terrorism" study to justify the numbers.
    
    They also send it to KEI..
    
    Funny thing the top ACTA negotiator for Mexico, is out of the game. No official statemet about his leaving has been released. Next week (apr 6th) the government need to testify in the ACTA Working Group of the Mexican Senate.. and the top negotiator won't be there.
    
    how funny :)
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James Love (profile), 28 Mar 2011 @ 3:01pm

The March 12 CRS report
The March 12 CRS report is probably not the same one, since it was done several months ago. But I would love to see a copy. james.love@keionline.org
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- Unanimous Cow Herd (profile), 28 Mar 2011 @ 3:57pm
  
  Re: The March 12 CRS report
  Fwded.
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- Anonymous Coward, 28 Mar 2011 @ 4:00pm
  
  Re: The March 12 CRS report
  http://www.dtic.mil/cgi-bin/GetTRDoc?Location=U2&doc=GetTRDoc.pdf&AD=ADA521223
  
  Think this is the one referenced
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James Love (profile), 29 Mar 2011 @ 7:38am

It's not the same report
The March 12th report is similar to another much older report, and it is not that useful. The FOIA concerns something quite different.
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- Anonymous Coward, 29 Mar 2011 @ 8:03am
  
  Re: It's not the same report
  I stand corrected. In my haste perusing the report I misread the date. Yes, it is from 2010, and not 2011.
  
  Still, I would try to secure a copy from a member of Congress of a staffer since that would represent receipt in real time, versus using FOIA to receive a copy in "law" time. The two times are, of course, worlds apart in duration.
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Anonymous Coward, 6 Apr 2011 @ 12:37pm

Is this it?

http://assets.opencrs.com/rpts/R41107_20100312.pdf
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- Mike Masnick (profile), 6 Apr 2011 @ 9:47pm
  
  Re:
  Is this it?
  
  No. That's the same report mentioned multiple times above from 2010. Not 2011.
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