The proposed Anti-Counterfeiting Trade Agreement, or ACTA, has been shrouded in secrecy, and the Bush and the Obama administrations have declared it unsuitable for public debate because divulging its contents could harm America's "national security."

A few recent leaks have showed that the unfinished agreement, which is being negotiated largely between the European Union and the United States, is likely to benefit the content industry. At the same time, it might pave the way for international guidelines that could lead to consumers losing their internet accounts if they are believed to be digital copyright scofflaws.

But we now know that the real reason for secrecy, the one suspected all along, was that the United States does not think it could reach an accord with Europe and the nearly dozen other nations if the proposal came under public scrutiny.

That's the story James Love, the director of Knowledge Ecology, tells on his blog and in a telephone interview Friday.

Love said Ron Kirk told him so.

Kirk is the United States trade representative whose office is the U.S. ACTA negotiator. The two spoke on an airline flight from Geneva on Thursday before lifting off to Washington, said Love, a prominent digital-rights and health care activist and lobbyist.

He has met Kirk before and they each knew one another. Love said while the plane was waiting on the tarmac, Kirk strolled from the front of the plane into coach to chat with other World Trade Organization meeting attendees, including Love.

Love said he asked why the administration would not lift the ACTA veil of secrecy.

"'The reason we can't make it public is people would walk away from the table,'" Love said Kirk told him.

The U.S. Trade Office confirmed Kirk was on the flight, but was not otherwise immediately prepared to comment. The office in March wrote Knowledge Ecology, in response to a FOIA on ACTA, that the negotiating texts were "properly classified" national security secrets.

Love said Kirk is a "charming guy, and he's a nice guy."

He said the conversation was brief and polite.

Kirk's concern that negotiating countries "would walk away" came a week after it was disclosed that the European Union is indeed troubled by the U.S. proposal, (.pdf) at least insofar as internet policy is concerned.

According to leaked documents, the European Union expressed alarm that the Obama administration is lobbying on behalf of the entertainment industry as part of the negotiations for the new international copyright accord.

The document, "European Union’s Comments to the U.S. Proposal," notes that the "most important provision" of the U.S.-proposed copyright section includes language noting that the United States' "overarching objective" is to "facilitate the continued development of industry."

The ACTA negotiating nations include Australia, Canada, European Union states, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.

The countries are to meet again in January and are expected to have a final accord by the end of next year.

As proposed, the agreement does not need Congress' approval.

Love told Kirk, and also wrote on his blog, that the government does not always negotiate consumer-oriented agreements in private, and he cited the 1996 World Intellectual Property Organization copyright treaties as one of several examples. Kirk replied that ACTA "was different" and ACTA topics were "more complex," Love said.

Update:

A select handful of non-government types, such as the entertainment industry and a few digital rights groups, have seen the proposed text. Confidentiality agreements preclude them from spilling the beans. They viewed the documents ahead of the last round of negotiations in South Korea, now five-weeks old.

Here is the entire unedited text of Kirk's response, via an e-mail as relayed through United States Trade Representative spokeswoman Nefeterius Akeli McPherson, who declined to confirm Kirk made those comments to Love:

While developing the US proposals for the content of trade agreements, USTR has for many years worked with the Congressionally-created system of advisory committees, as it does in the context of all other trade agreements. Under the Obama Administration, USTR used an innovative approach, greatly expanding its process of consultations about prospective U.S. positions on enforcement of intellectual property rights in the digital environment to include advice from a broad group of experts, including representatives of intellectual property right holders, Internet intermediaries, NGOs, and others. Going forward, the Administration is committed to continuing to provide opportunities for the public to give meaningful input into the ACTA negotiating process. We won endorsement of the importance of meaningful public input from all of the participants at the Seoul Round of the ACTA negotiations in November. The Administration also recognizes that confidentiality in international negotiations among sovereign entities is the standard practice to enable officials to engage in frank exchanges of views, positions, and specific negotiating proposals, and thereby facilitate the negotiation and compromise that are necessary to reach agreement on complex issues. A unilateral release of text by one trading partner would risk breaching the mutual trust that is important to successful trade negotiations. All of these perspectives were influential in shaping our proposal. We therefore strongly disagree with any assertion that the Administration is only reflecting the views of a single industry or group.

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