Drafting treaties in secret, especially when they concern new crackdowns on intellectual property violations, is a bit like rolling around in red meat, stuffing your pockets with raw hamburger, and jumping into a shark tank; reaction in both cases is likely to be swift and violent.

Such was the predictable fallout from a leaked document outlining a new Anti-Counterfeiting Trade Agreement (ACTA) being negotiated between the US, Canada, the EU, Japan, and other nations, and it has lead to a spate of lurid online accusations that border agents will soon be searching iPods and laptops for illicit copies of Zoolander. The reality is less thrilling but potentially more serious.

Hysteria: Not just a Def Leppard album

We've kept our eye on ACTA since its introduction last year, but there has been precious little to report. The agreement is being negotiated directly between the key countries and it will bypass existing World Trade Organization and World Intellectual Property Organization structures to create a new set of multilateral rules designed to crack down on counterfeiting and piracy.

No one has seen a draft of the agreement, and no such draft apparently exists. The various governments involved in negotiations have said little, which is why last week's leaked release (PDF) of an ACTA "discussion paper" has generated such worldwide buzz.

In Ireland, RTE's coverage suggested that "customs officers should be given the right to search laptops and media players for pirated material" under the treaty. In Canada, media reports have claimed that "security officials would be charged with checking laptops, iPods and even cellular phones for content that 'infringes' on copyright laws, such as ripped CDs and movies. The guards would also be responsible for determining what is infringing content and what is not."

And in the hands of bloggers, the headlines have grown even scarier.

The document

But when you turn to the document itself, none of this is clear. For one thing, the document is not even a draft text of a treaty but a set of "examples of the types of provisions that could be included in the agreement." While every single one of them could well wind up in the final document, there's no basis for wild statements about what border guards "would" be charged with doing. Discussion of ACTA at this point needs a lot more "might" in it.

In any event, the draft doesn't say that border guards will be searching iPods. Or cell phones. What does it say under the "Border Measures" categories? It says that some of the topics under discussion include giving customs authorities the authority to "suspend import, export, and trans-shipment of suspected IPR infringing goods." Customs could also impose "deterrent penalties" and could "disclose key information about infringing shipments to right holders."

Do "import," "export," and "shipments" sound like part of a plan that would turn the guy who stamps your passport into someone who scans your iPod for illicit movies ripped? Not really.

The real issues

What is interesting about ACTA is a different set of provisions. The first is one that would allow countries to bring criminal penalties against those who commit "willful infringements without motivation for financial gain to an extent as to prejudicially affect the copyright owner (e.g., Internet piracy)."

This provision, unlikely to be deployed against individual file-swappers and those who rip movies from their own DVDs, seems clearly targeted at sites like The Pirate Bay and other major hubs, which don't always operate to make money. While the US government has yet to go after file-swappers, the ability to bring criminal charges against the big hubs might bring the feds into the fight.

The second key provision here is the creation of a legal regime that would "encourage ISPs to cooperate with right holders in the removal of infringing material" by giving them safe harbor from certain legal threats. The US DMCA already provides this sort of thing via its "takedown notice" provisions, but in countries like Canada, this could be seen as a way of sneaking DMCA-type rules in through the back door.

The document has lead Canadian legal scholar Michael Geist to write this week, "The effect of these reforms will dramatically reshape Canadian law with Prentice and Prime Minister Stephen Harper rolling out the red carpet for President George Bush's demands and leaving Canadians wondering how their consumer, property, and privacy rights suddenly disappeared." (Geist had earlier submitted comments on ACTA to the Canadian government before many details were available.)

Possibly most worrying to US residents, due to its novelty here, is the discussion about a system to give rights holders a way to "expeditiously obtain information identifying the alleged infringer" of someone's intellectual property. Companies can do this now, of course, under judicial oversight through the subpoena process, but that can be slow and expensive.

It's not clear what ACTA negotiators have in mind, but if this is a way to bypass judicial oversight, it seems ripe for abuse. It would be especially thorny if it applied across borders, especially in Europe, where judges at the highest levels (and the European Parliament) have basically said that file-sharing is too petty a crime for this information to be turned over. ACTA could be an attempt around those decisions.

While the discussion points do suggest that a couple of nasty new legal mechanisms could emerge from negotiations, the real goal doesn't seem to be as much about a massive grab of new powers, at least in the US. Instead, ACTA looks more like a way to rachet IP rights a little tighter, then push the entire caboodle on every other country, forcing them through trade agreements to adopt US-style IP policy.

Previous WIPO treaties have allowed a good deal of leeway in implementation, especially when it comes to issues of anticircumvention of DRM; ACTA may prove less forgiving.

IP Justice, which has followed ACTA's progress for some time, sums it all up: "After the multi-lateral treaty's scope and priorities are negotiated by the few countries invited to participate in the early discussions, ACTA's text will be 'locked' and other countries who are later 'invited' to sign-on to the pact will not be able to re-negotiate its terms. It is claimed that signing-on to the trade agreement will be 'voluntary,' but few countries will have the muscle to refuse an 'invitation' to join, once the rules have been set by the select few conducting the negotiations."

A worldwide DMCA on steroids: now isn't that scarier—and way more plausible—than iPod-scanning airport guards?