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

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 18^th Amendment to the United States Constitution. Section 1 of the 18^th 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 18^th 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.”

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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.