European data protection official criticizes ACTA treaty

The 16-page assessment finds fault with many aspects of the treaty

Europe's top data privacy watchdog has strongly criticized the international anticounterfeiting trade agreement (ACTA), warning that it could lead to widespread monitoring of the Internet and breaches of individuals' right to privacy.

The agreement is poorly worded, lacks precision about what measures could be used to tackle infringement of intellectual property rights online and could result in the processing of personal data by ISPs that goes beyond what is allowed under E.U. law, the European Data Protection Supervisor (EDPS) said in a 16-page opinion published Tuesday.

The opinion also says that ACTA does not contain "sufficient limitations and safeguards, such as effective judicial protection, due process, the principle of the presumption of innocence, and the right to privacy and data protection." It also warns that many of the measures to strengthen intellectual property enforcement online could involve "the large scale monitoring of users' behavior and of their electronic communications" including emails, private peer-to-peer file sharing and websites visited.

ACTA aims to enforce intellectual property rights and will enter into force after ratification by six signatory states of the total 11 -- the European Union, Australia, Canada, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the U.S. It was signed by the European Commission and 22 E.U. member states in January, but before it can become E.U. law it must be approved by the European Parliament.

However, the international antipiracy pact has failed to win favor with parliamentarians. And following large civil protests throughout Europe, many E.U. countries are back-pedaling on their decision to sign the agreement. Most have suspended ratification.

In an effort to placate critics, the European Commission, the body responsible for negotiating the agreement on behalf of the E.U., has asked the European Court of Justice to rule on whether the deal is compatible with the E.U. Charter of Fundamental Rights. But since the court will not evaluate the effectiveness or proportionality of the measures within the agreement, nor the potential outcome, anti-ACTA activists see it as nothing more than a time-wasting exercise.

The Parliament is expected to vote in June without waiting for the court ruling. It seems that it will vote against the agreement, after the parliamentarian charged with evaluating it, David Martin, recommended rejecting it.

The EDPS' opinion puts a further nail in ACTA's coffin. In February 2010, the independent supervisory authority, gave his first opinion on the treaty, which at the time was being negotiated in secret. That opinion raised privacy concerns, but Tuesday's document goes into more detail on the now public text.

ACTA includes permission for countries to create laws whereby an online service provider may be ordered by a "competent authority" to disclose the identity of a subscriber to a right holder. The EDPS points out that the "competent authority" is not defined. There is likewise no definition of "commercial scale" mentioned elsewhere in the text.

Article 23 of ACTA appears to create new categories of criminal offenses without providing for any legal definition of what they are, he continued. Generalized monitoring of Internet users could affect millions of individuals irrespective of whether they are under suspicion.

In short, according to the EDPS, ACTA raises huge privacy concerns.

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Jennifer Baker

IDG News Service
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