TPP and Protection of Encrypted Program-Carrying Satellite and Cable Signals

By Eleanor K. Meltzer
October 27, 2015

It appears that an October 5, 2015 version of the Trans-Pacific Partnership (TPP) Intellectual Property (IP) Chapter is now available on WikiLeaks.

Absent ability to view the entire text of the proposed TPP Agreement, it is difficult to provide definitive analysis of any portion of the Intellectual Property Rights Chapter, Consolidated Text of October 5, 2015 (“IP Chapter”). The following article examines TPP/IP Chapter Article QQ.H.9, “Protection of Encrypted Program-Carrying Satellite and Cable Signals.” The discussion is based solely on the TPP/IP Chapter text, independent of the overall TPP Agreement.

 

Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite and Cable Signals} of the TPP/IP Section reads as follows (footnote numbering is reproduced from the text):

1. Each Party shall make it a criminal offense to:

(a) manufacture, assemble, modify149, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know 150 that the device or system meets at least one of the following conditions:

(i) it is intended to be used to assist,

(ii) it is primarily of assistance, or

(iii) its principal function is solely to assist, in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor151 of such signal152; and

(b) with respect to an encrypted program-carrying satellite signal, willfully:

(i) receive153 such a signal; or

(ii) further distribute154 such signal knowing that it has been decoded without the authorization of the lawful distributor of the signal.

2. Each Party shall provide for civil remedies for any person that holds an interest in an encrypted program carrying satellite signal or its content and who is injured by any activity described in paragraph 1.

3. Each Party shall provide for criminal penalties or civil remedies155 for willfully:

(a) manufacturing or distributing equipment knowing that the equipment is intended to be used in the unauthorized reception of any encrypted program-carrying cable signal; and

(b) receiving, or assisting another to receive156, an encrypted program-carrying cable signal without authorization of the lawful distributor of the signal.

 

What This Means

It is already a criminal act in the United States to intercept and/or decode an encrypted satellite signal. See 18 U.S.C. §2511. Many in the United States may not realize that similar provisions criminalizing interception of an encrypted program-carrying satellite signal are included in Free Trade Agreements already concluded by the U.S., including the North American Free Trade Agreement (NAFTA) with Canada and Mexico (Article 1707), the U.S. – Chile Free Trade Agreement (FTA)(1/1/2004) (Article 17.8), the U.S. – Australia FTA (1/1/2005)(Article 17.7), and the U.S. – Korea FTA (3/15/2012)(Article 18.7).

One might wish artfully to identify a glaring loop-hole in Paragraph 1 of TPP/IP Article QQ.H.9, similar to that in Section 1 of the 18th Amendment to the United States Constitution. Section 1 of the 18th Amendment prohibited “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States…” However, the 18th Amendment did not prohibit either possessing or imbibing said intoxicating liquors. Apparently, manufacturing, selling, or transporting alcoholic beverages were highly intoxicating activities, but actually drinking the stuff didn’t cloud judgment or impair ability one bit. The artisanal crafters of this particular Constitutional amendment clearly had all their wits about them!

With Article QQ.H.9, one might be tempted to read Paragraph 1 as permitting the possession and use of a device which can receive and de-crypt a program-carrying satellite signal (without authorization of the signal’s lawful distributor), although any of the nefarious activities enumerated in Paragraph 1(a) would be criminal. However, Footnote 153 makes clear that receipt and use, or receipt and decoding of the signal are also distinct, criminal activities.

Users of encrypted codeless and semi-codeless Global Positioning System (GPS) signals are already on notice that the U.S. government is phasing out support of these signals. See http://www.gps.gov/technical/codeless/. Phase-out of support for the L2C signals is anticipated by 2018. Under both current U.S. law and the provisions of the TPP, interception and private use of such GPS signals will presumably become a criminal act – even if available – once the U.S. government stops officially supporting them, i.e., authorizing their use.

Since Article QQ.H.9 reflects U.S. law, and is incorporated in FTAs (including the North American Free Trade Agreement) with Australia, Canada, Chile, Mexico, Peru, and Singapore, its impact will obviously be most dramatic in TPP signatories who presently do not have any or similar national criminal provisions. Brunei, Japan, Malaysia, New Zealand, and Vietnam are the TPP parties which do not have FTAs with the United States.

As a final note, the October 5, 2015 TPP/IP Chapter text made available via WikiLeaks does not appear to include an Article QQ.H.10. The Article following QQ.H.9 is Article QQ.H.11, “Government Use of Software.”

____________________

 

Footnotes to the TPP Text

149 For greater certainty, a Party may treat “assemble” and “modify” as incorporated in “manufacture.”[1]

150 For the purposes of this paragraph, a Party may provide that “having reason to know” may be demonstrated through reasonable evidence, taking into account the facts and circumstances surrounding the alleged illegal act, as part of the Party’s “knowledge” requirements. A Party may treat “having reason to know” as meaning “wilful negligence.”

151 With regard to the criminal offences and penalties in paragraphs 1 and 3, a Party may require a showing of intent to avoid payment to the lawful distributor or a showing of intent to otherwise secure a pecuniary benefit to which the recipient is not entitled.

152 The obligation regarding export may be met by making it a criminal offence to possess and distribute such a device or system. For the purposes of QQ.H.9, a Party may provide that a “lawful distributor” means a person who has the lawful right in that Party’s territory to distribute the encrypted program-carrying signal and authorize its decoding.

153 For greater certainty and for purposes of Article QQ.H.9.1(b) and QQ.H.9.3(b), a Party may provide that wilful receipt of an encrypted program-carrying satellite or cable signal means receipt and use of the signal, or means receipt and decoding of the signal.

154 For greater certainty, a Party may interpret “further distribute” as “retransmit to the public.”

155 If a Party provides for civil remedies, it may require a showing of injury.

156 A Party may comply with its obligation in respect of “assisting another to receive” by providing criminal penalties for a person willfully publishing any information in order to enable or assist another person to receive a signal without authorization of the lawful distributor of the signal.

The Author

Eleanor K. Meltzer

Eleanor K. Meltzer is a member of the State Bar of Texas and the Virginia State Bar, currently living near Austin, TX. Eleanor received her undergraduate degree from Stanford and her J.D. from Georgetown University Law Center. Ms. Meltzer has published articles on trademarks and geographical indications.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 2 Comments comments.

  1. John Willkie October 28, 2015 1:53 pm

    I suspect that Ms. Meltzer has not enough information to make the conclusion she has offered here, or has misunderstood the provision. But then, she starts off with the unproven idea that the document fragment leaked to WikiLeaks is accurate.

    Assuming in arguendo that the leak is accurate, I looked for a definition of “program” as used in “encrypted program-carrying satellite signal.” Finding none, I must assume until we see definitive language, that the term “program” is as used in international information-systems terminology: a stream of data that comprises an audio-only, audio-visual. pr audio-visual-data service. Such services are quite commonly offered via encrypted satellite signals.

    In no sense that I am familiar with are GPS data streams (regardless of whether they are encrypted or transmitted in the clear or using an ‘open key’ considered a “program.”

    I will also note that the term “program” is overloaded: in broadcasting terminology, a “television program” is one or more segments of time on a “program service.” This implementation of “program” is, at best, orthogonal to continuous global positioning service signal streams.

  2. Gene Quinn October 28, 2015 2:32 pm

    John-

    Eleanor did not assume the WikiLeaks version of the TPP is accurate, which should be pretty clear from the introduction of the article. Given that the TPP has been negotiated in secret and still not officially released it seems perfectly legitimate to me to comment on a leaked draft. If those negotiating didn’t want a rumor mill to start they could have and should have provided the agreement. If the TPP is so wonderful then why hasn’t it been officially released?

    I find it interesting that you seem to take Eleanor to task for relying on a leaked version, suggesting that making such an assumption is unwise. But then in the second paragraph you make your own assumption on the meaning of the term “program.” Funny how the assumption you think Eleanor makes is inappropriate but the assumption you make gives you no similar concern.

    -Gene