Proposed multi-lateral intellectual property trade agreement

Political Philosophy
1

In 2007 a group of G8 nations began a treaty-making process to create a new global standard for intellectual property rights enforcement. Dubbed the Anti-Counterfeiting Trade Agreement (ACTA), signatory nations will form an international coalition against copyright infringement. This year, it is being negotiated in secret, and Freedom of Information Act requests have been denied by the Obama administration on the grounds that it contains “information that is properly classified in the interest of national security pursuant to Executive Order 12958.”

What is known about the act is that it contans a section on “Border Measures” which some have dubbed as “the Copyright Ghestapo” which will be empowered to perform warrantless searches and seizures of iPods, phones, laptops, and other digital devices at airports and borders of participating countries.

Sources:

http://www.aardvark.co.nz/daily/2008/0526.shtml

http://en.wikipedia.org/wiki/Anti-Counterf…Trade_Agreement

http://www.canada.com/vancouversun/story.h…c96ce5e&p=1

http://wikileaks.org/w/index.php?title=Pro…amp;oldid=29522

http://www.washingtonpost.com/wp-dyn/conte…ml?hpid=topnews

Reading the document from WikiLeaks.com, it includes authority to perform ex parte searches and provides “authority to seize and destroy IPR-infringing goods” and authority “to conduct random ex officio searches of laptops, MP3 players, and cellular phones for illegally downloaded or ‘ripped’ music and movies. Travellers with infringing content would be subject to a fine and may have their devices confiscated or destroyed.”

In July 2008, the United States Department of Homeland Security disclosed that its border search policies allow US Customs and Border Protection agents to conduct random searches of electronic devices for “information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.”

It is already a fact that the US Supreme Court has ruled in United States v. Flores-Montano and United States v. Montoya de Hernandez that the Fourth and Fifth Amendment don’t apply to the borders of the United States, including ports of entry such as an airport.

http://en.wikipedia.org/wiki/Border_search_exception

And in United States v. Arnold, 2008, the Ninth Circuit Court of Appeals has ruled that “reasonable suspicion is not needed for customs officials to search a laptop or other electronic device at the international border.”

So if the Objectivist position is one upholding IP and copyright laws, does Objectivism support warrantless searches for copyrighted materal at borders, or otherwise? What is the Objectivist position on the Anti-Counterfeiting Trade Agreement?

2

So if the Objectivist position is one upholding IP and copyright laws, does Objectivism support warrantless searches for copyrighted materal at borders, or otherwise?

If a warrantless search is morally proper within a country, it would be morally proper at the borders of a country. So the primary question is, are warrantless searches morally proper? They are, I would maintain, when there is just cause. They are not proper when conducted at random, and they can be proper when conducted in response to sufficient evidence. (I will go out on a limb and say “as recognized under US law”, since AFAIK for-cause search law is basically correct, though I welcome correction by any cops or lawyers). A secondary question, though, regards the proper nature of IP law, specifically, should copyright infringement be a crime (as opposed to a legally recognized civil matter); and if copyright infringement is a tort, are warrantless searches ever proper in connection with a tort. I’ll simplify the matter and say “No, never”.

3

The case ought not to be framed in terms of defending property rights - if that were the case, the government could just go door to door and confiscate every computer, CD, hard drive, etc, and that would be legitimate.

I think the proper way to frame this is in terms of rule of law and the right of people to be secure in their persons and property. As far as rule of law, there is no coherent standard that indicates when an mp3 player should be confiscated. There is only an officer with a suspicion (or a chip on his shoulder). How on Earth can the officer even scan the contents and determine if there is indeed stolen material? How would he know that an mp3 was obtained by ripping a CD (legal use) or torrented (illegal use)? The mp3 player only sees it as a series of ones and zeroes.

Nor can people know how to avoid being singled out, because again, there is no standard. If people cannot know what is criminal before they do it, then it simply cannot be legitimately called criminal. Plus, people generally ought to have their space respected unless there’s a very good reason why not.

There might be some basis for a greater degree of searching than is normal for airports, depending on the real security risks involved. That’s a wholly different issue.