ACTA Grossly Unconstitutional

Should your constitutional rights be violated in order to protect a statute right of another individual or corporation? By statute rights, I mean a law that is not part of the constitution. Of course you're going to say no. However, there is an increasing movement to do so under a new trade agreement known as the Anti-Counterfeiting Trade Agreement (ACTA). This new agreement deals with international copyright. Over the past 10 or so years, the amount of abuse copyright law has taken has been steadily increasing as content providers try to put the "internet genie back in the bottle", as one writer put it. The ACTA however brings this to a new low and in my opinion is grossly unconstitutional.

This new agreement was first leaked on freedom of information champion Wikileaks the other day. It will be tabled as an international agreement at the G8 meeting in Japan in a few weeks time. The agreement would turn border guards and public security personnel into copyright police. All laptops, iPods, and other media devices being brought across borders would be checked to make sure they do not contain pirated media. Under the agreement, this would include rips of CDs and DVDs that the user has legally purchased. Anyone found with pirated content would have their device confiscated or destroyed. In an interview with the Victoria Times Colonist, David Fewer from the University of Ottawa Internet Policy and Public Interest Clinic noted that "the process on ACTA so far has been cloak and dagger. This certainly raises concerns." The agreement also gives authorities the ability to act agaisnt copyright infringers without complaint from the rights holder. Michael Geist, also from UofO and copyright law expert told the National Post that "The lack of consultation, the secrecy behind it and the speculation that this will be concluded within a matter of months without any real public input is deeply troubling." Both men noted that the agreement would be almost impossible to back out of once in place. The deal would also impose strict restrictions on internet service providers, forcing them to hand over information without a warrant.

Right from the get go, the ACTA violated both the Canadian and US constitutions. We've all heard of police stopping black men just because they are driving a nice car. This is no different. The way the law is set up, just because you own an iPod, you're a pirate. The part where internet providers would have to hand over information without warrant is also worrying. The Charter of Rights and Freedoms guarantees that all Canadians have the right to be secure against unreasonable search and seizure. What separates this from inspecting bags for weapons or drugs at the airport is that there is no possibility of endangering the person's self or others with your iPod. The agreement also violates the Fourth Amendment of the United States for the same reasons. Of further concern is the fact that this agreement has been kept under wraps from both parliament and the public. That tells me that the respective governments of the countries involved did not want the public to be aware of this. Such an agreement has wide raging implications and should be discussed before parliament. The problem is that trade agreements are not laws and thus do not have to be.

The last issue of concern is the fact that this agreement seems poised to eliminate the provision of "fair use" under copyright law. Under the ACTA, every single person who owns a computer or MP3 player is a pirate. Everyone who has ripped a CD for their personal music collection is a pirate and should have their property taken. Originally, Digital Rights Management software was used to limit what you could do. As this has proven unpopular, media distributors have turned to the toughening the laws. This is the bottom of the barrel for a long range of steps by content providers such as the Recording Industry Association of America (RIAA) to attempt to remove every single right you own for legal products you legally purchased. When it comes to purchasing media, we are on a long walk of a short pier when it comes to removing consumer rights. The government should not be in the business of handing content providers with these outlandish laws and trade agreements. The government's only role should be in protecting consumers and let the market handle manufacturers. Governments recently in the western world have been taking disturbing authoritarian turns for these special interest groups. At one time, we used to refer to this as corruption but now it's just business as usual. This needs to stop.

What needs to be done is a complete revision of copyright law ensuring consumers some reasonable protection and freedom of use for media they have legally purchased. This would involve the outlawing of Digital Rights Management. Also needed are iron clad fair use laws that allow people to use media in any way for personal uses provided they are not distributing it for financial incentive. As the digital media age progresses, we have slowly lost the rights we once had back in the age of analogue. It's time we take them back. To borrow a line from the skaters, listening to my iPod is not a crime.