In the US, ACTA is to be adopted as an Executive Agreement, it will bypass normal processes of Congressional oversight. In the EU, ACTA will only be published after the member states reach political agreement (source). Initially, ACTA will be legislation for about a billion people without any public involvement in the treaty.

In what's both a blessing and a curse the supposedly secretive ACTA process has been plagued by leaks. In November 2009 a European Union analysis of ACTA (PDF) supported earlier leaks that the treaty calls for a Guilt Upon Accusation model, increased controls on DRM, criminal punishments for copyright infringment, and threats on ISPs that may compel them to act against their customers. The leaked EU analysis was summarised by Michael Geist,

the EU analysis confirms the earlier leak (though the Internet chapter has seven sections, rather than five). The fears about the U.S. intent with respect to ACTA are confirmed - extending the WIPO Internet treaties, creating a Global DMCA, promoting a three-strikes and you're out model, even stopping efforts to create interoperability mandates [...] This latest leak also reinforces the need for all governments to come clean - releasing both the ACTA text and government analysis of the treaty should be a condition of any further participation in the talks.

The problem with these leaks is that we can't confirm their context; whether they contain mistakes that were later amended, whether there are supporting documents or whether these are in fact final texts. Any comments that artists or the wider public make on ACTA can be easily refuted as being based on inaccurate leaked information. While Hollywood lobbyists can speak authoritatively while pointing to page and line number the public are reduced to dealing with scraps of information and so they cannot effectively participate in the process of law.

Colin Jackson wrote today of New Zealand's participation in ACTA,

"The New Zealand government recently provided a face-to-face briefing to selected people. There weren’t any media in the room, and they wouldn’t allow people to blog or tweet. That seems to be a common requirement around ACTA. Someone who tried to tweet in a recent Mexico ACTA briefing was thrown out by security. Claims that the text of ACTA is no more secret than other trade agreements have been shown to be rubbish. Even the EU Parliament is demanding transparency."

Like telephones and the use of postal services the internet is a liberty necessary for participation in modern society. Government transparency comes from a much older tradition of civil liberties that's is being challenged by international negotiations. At a time like this it's good to revist the reasons for government transparency in society,

Civil liberties aren’t luxuries; they’re the foundations that our society is built upon. We live in a society that depends on our mutual cooperation. Democracy gives this legitimacy, but democracy relies on freedom of speech and association to work, with the rule of law to ensure fairness.

But direct democracy, a group of people meeting to make decisions, doesn’t scale up to a small town let alone a country of four million people. Our society has developed ways to help us cope – we have an electoral system to choose people to represent us, a parliamentary system to make laws on our behalf, and courts to enforce the laws. Around this we have built up groups of people who discuss what laws should be made and other people who report and comment on the events of the day. All of these combine to make our current civil society.

Being able to access and participate in these and other institutions is an important part of being a member in good standing of our society. Without access to these tools, you become a non-citizen, part of the underclass.

The CFF have been told that New Zealand has called for more transparency, joining the UK Government, the EU Parliament, Australia, and Canada. However, while there's a lot of talk about transparency, we have yet to see any serious moves to inform the public.

The test for these governments is whether they will continue to be part of a process that bears no resemblance to their national principles of democracy and openness, or whether they are prepared to withdraw from negotiations unless these core values are upheld. UK MPs cannot even see the text of ACTA. Which do they value more: a legitimate open process or being part of a secretive club of negotiations?

Currently our government is not living up to the tradition of open democracy, claiming that this is because of international pressure. Let's be very clear about this: it's official -- ACTA discussion and draft documents won't be released at the end of negotiations so we won't be able to comment effectively at any point in the future. NZ officials say that New Zealand can choose whether they'll sign up to ACTA, but considering the international partnerships (trade and otherwise) that may hinge on the treaty, real questions can be asked about whether this is even a remote possibility.

While it's likely that the New Zealand Government and many others have been strong-armed into secrecy, it's also revealed a loophole in our democratic process: we have no laws that require a minimum level of transparency in international negotiations. Unlike national lawmaking no transparency is required in international negotiations, and as such little is given.

The public, and any lawmaker that wants to fix this weak point in our democratic system needs to address this core issue and mandate that international involvement must have international transparency because -- as the UK Government put it -- transparency is crucial to ensure the legitimacy of law.

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