Intellectual Property:

Federal Enforcement Has Generally Increased, but Assessing Performance Could Strengthen Law Enforcement Efforts

GAO-08-157: Published: Mar 11, 2008. Publicly Released: Mar 18, 2008.

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Federal law enforcement actions against criminals who manufacture and distribute counterfeit and pirated goods are important to enforcing intellectual property (IP) rights and protecting Americans from unsafe or substandard products. GAO was asked to: (1) examine key federal agencies' roles, priorities, and resources devoted to IP-related enforcement; (2) evaluate agencies' IP-related enforcement statistics and achievements; and (3) examine the status of the National Intellectual Property Rights Coordination Center. GAO reviewed relevant documents, interviewed officials in five key agencies, and analyzed agency IP enforcement data from fiscal years 2001 through 2006.

Five key agencies play a role in IP enforcement, and their enforcement functions include seizures, investigations, and prosecutions. While IP enforcement is generally not their highest priority, IP crimes with a public health and safety risk, such as production of counterfeit pharmaceuticals, is an IP enforcement priority at each agency. Determining agencies' IP enforcement resources is challenging because few staff are dedicated to this area, and not all agencies track staff time spent on IP enforcement. Agencies carry out some enforcement actions through their headquarters, but significant enforcement takes place in the field. Federal enforcement actions generally increased during fiscal years 2001-2006, but the key agencies have not taken key steps to assess their achievements. For example, most have not systematically analyzed their IP enforcement statistics to inform management and resource allocation decisions, collected data on their efforts to address IP crimes that affect public health and safety, or established IP-related performance measures or targets to assess their achievements. Also, Customs and Border Protection's enforcement of exclusion orders, which stop certain IP-infringing goods from entering the country, has been limited due to certain procedural weaknesses. The National Intellectual Property Rights Coordination Center, an interagency mechanism created to coordinate federal investigative efforts, has not achieved its mission and staff levels have decreased. Currently, only one agency participates in the center's activities, which focus on private sector outreach. Agencies have lacked a common understanding of the center's purpose and agencies' roles. The center's upcoming move to a new location presents an opportunity to reconsider its mission.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretaries of Homeland Security and Health and Human Services should direct the office of Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), the Food and Drug Administration (FDA), and the Department of Justice (DOJ) to systematically analyze enforcement statistics to better understand variations in IP-related enforcement activity.

    Agency Affected: Department of Health and Human Services

    Status: Closed - Implemented

    Comments: In response to the recommendation, FDA's Office of Criminal Investigations (OCI) initiated an effort to conduct a periodic analysis of its criminal case statistics involving counterfeit FDA regulated products. The analysis would be used to identify significant factors and trends in the counterfeiting of FDA regulated products, such as the prevalence and location of counterfeit products and the methods of distribution. FDA also reported that the analysis will aid its development of regulatory and enforcement strategies to improve the security and integrity of the supply chain and better protect FDA-approved products. In September 2011, FDA issued a report detailing the results obtained from a preliminary review of its diversion and counterfeit case information, as part of its continued efforts to implement the GAO recommendation. FDA found that tablets and capsules were the most common drug types associated with counterfeit and diversion schemes and that wholesalers and pharmacists represented the greatest percentage of suspects. FDA noted that the review will help the agency prioritize risk management activities to protect the legitimate drug supply and help ensure drug quality and integrity.

    Recommendation: To clarify the mission and structure of the National Intellectual Property Rights Coordination Center, the Attorney General and the Secretary of Homeland Security, in consultation with NIPLECC, should direct their IP enforcement agencies to report to Congress on the center's redefined purpose, operations, required resources, and progress within 1 year of the center's relocation.

    Agency Affected: Department of Homeland Security

    Status: Closed - Implemented

    Comments: In commenting on the report, the Department of Homeland Security (DHS) said it concurred with this recommendation and planned to discuss it with the Department of Justice (DOJ). DOJ did not comment on the recommendation. ICE has become the lead agency for the IPR Center. In the period between October 2008 and September 2010, ICE briefed staff from multiple House and Senate committees about the IPR Center and gave staff tours of the center's new space. ICE also testified several times before Congress on its IP enforcement activities, including the operations of the IPR Center. In addition, the IPR Center's structure and operations were discussed in the 2010 Joint Strategic Plan on Intellectual Property Enforcement, a plan that the U.S. Intellectual Property Enforcement Coordinator submitted to the President and Congress.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretaries of Homeland Security and Health and Human Services should direct the office of Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), the Food and Drug Administration (FDA), and the Department of Justice (DOJ) to systematically analyze enforcement statistics to better understand variations in IP-related enforcement activity.

    Agency Affected: Department of Homeland Security: United States Immigration and Customs Enforcement

    Status: Closed - Implemented

    Comments: In commenting on the report, the Department of Homeland Security (DHS) said it agreed with this recommendation and that ICE would take steps to analyze its enforcement activities to better understand variations in intellectual property (IP)enforcement activities. The 2010 Joint Strategic Plan on Intellectual Property, which was coordinated by the Intellectual Property Enforcement Coordinator (IPEC), established performance measures to track federal IP enforcement efforts. Federal law enforcement agencies, including ICE, are required to report annually on number of IP investigations opened, number of arrests, indictments, and convictions, as well as provide data on seizures of infringing goods. As part of this effort, ICE regularly collects IP enforcement statistics from each of its Special Agent-in-Charge (SAC) offices and examines the data for trends, such as number of cases opened and types of investigations, to inform management and resource allocation decisions. These statistics are then aggregated and reported each year in the IPEC's annual report.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretaries of Homeland Security and Health and Human Services should direct the office of Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), the Food and Drug Administration (FDA), and the Department of Justice (DOJ) to systematically analyze enforcement statistics to better understand variations in IP-related enforcement activity.

    Agency Affected: Department of Justice: Federal Bureau of Investigation

    Status: Open

    Comments: In comments on the report, ICE indicated it concurred with this recommendation. Neither DOJ nor HHS commented on this recommendation. In the course of ongoing work, GAO determined that FBI had taken some steps relative to this recommendation, but we have not formally evaluated those actions. We will update the status of this recommendation as we obtain additional information.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretaries of Homeland Security and Health and Human Services should direct the office of Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), the Food and Drug Administration (FDA), and the Department of Justice (DOJ) to systematically analyze enforcement statistics to better understand variations in IP-related enforcement activity.

    Agency Affected: Department of Justice

    Status: Closed - Implemented

    Comments: As required by law, DOJ reports annually to Congress its IP enforcement actions for various IP violations, including referrals and cases, disposition of defendants in concluded cases, and prison sentencing for convicted defendants. DOJ reports the statistics in aggregate in its annual Performance and Accountability Report. In 2008, GAO found that although DOJ reported that it analyzed these statistics across units before it initially decided to place its Computer Hacking and Intellectual Property (CHIP) units, DOJ could not provide evidence that it analyzes these statistics across CHIP units on a routine basis. In communication to Congress on actions it planned to take in response to the report, the Department concurred with the GAO recommendation. In June 2009, DOJ reported that the Executive Office of the U.S. Attorney, working with the National Computer Hacking and Intellectual Property (CHIP) Coordinator, was compiling IP enforcement statistics by CHIP Unit and by District based on every criminal IP statute. In addition, DOJ reported that its Criminal Division, Executive Office of the U.S. Attorney, and the Federal Bureau of Investigation (FBI) were able to use this information, among other things, to determine how to allocate FBI resources appropriated under the PRO IP Act to specific CHIP units.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretary of Homeland Security should direct ICE, FBI, and DOJ to take steps to better identify enforcement actions against IP-infringing goods that pose a risk to the public health and safety of the American people, and collect and report this data throughout each agency and to Congress.

    Agency Affected: Department of Homeland Security: United States Immigration and Customs Enforcement

    Status: Closed - Implemented

    Comments: In commenting on the report, the Department of Homeland Security (DHS) said it agreed with this recommendation and that ICE would update its law enforcement information system to categorize enforcement actions that focus on criminal IP violations that threaten public health and safety. At the time of our audit, ICE used the same code to categorize all of its IP enforcement activities. Simultaneous with our audit, a 2007 Executive Order established the Interagency Working Group on Import Safety. In November 2007, in response to the Executive Order, ICE created a new operation called Operation Guardian to combat the importation of substandard, tainted, or counterfeit products that pose a health and safety risk to consumers, and directed that all ongoing and new health and safety related investigations be coded under Operation Guardian. ICE now runs all of its enforcement actions for IP crimes affecting public health and safety under the umbrella of Operation Guardian. As a result, ICE?s enforcement actions against such crimes can be identified and tracked, and data on these efforts is reported internally and externally. ICE officials said the data is analyzed to determine patterns and trends and useful information for subsequent enforcement is shared among its field offices.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Secretary of Homeland Security should direct Customs and Border Protection (CBP) to continue to take steps to better identify IP seizures that pose a risk to the public health and safety of the American people, and collect and report this data throughout the agency and to Congress.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection

    Status: Closed - Implemented

    Comments: In March 2008, GAO's report, Intellectual Property: Federal Enforcement Has Generally Increased, but Assessing Performance Could Strengthen Law Enforcement Efforts, found that Customs and Border Protection (CBP) and other responsible federal agencies had given priority in their intellectual property (IP) enforcement efforts to IP crimes that affect public health and safety. However, we found that most of these agencies had not clearly identified which IP enforcement actions related to public health and safety and did not have data to track their efforts in this area. We reported that in January 2008, CBP, for the first time, published data that identified seized goods with public health and safety implications, and recommended that CBP continue to take steps to better identify IP seizures that pose a risk public health and safety and report this data throughout the agency and to Congress. CBP concurred with this recommendation. In January 2009, CBP again published IP seizure data that identified public health and safety related seizures and reported changes in seizure value between fiscal years 2007 and 2008. In December 2008 and January 2009, CBP also distributed the 2008 seizure data to its Commissioner, Deputy Commissioner, Assistant Commissioners, Congressional oversight committees, and to CBP staff.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General the Secretary of Homeland Security should direct CBP, ICE, FBI, and DOJ to establish performance measures and targets for IP-related enforcement activity and report such measures, targets, and actual performance to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and Congress.

    Agency Affected: Department of Homeland Security: United States Immigration and Customs Enforcement

    Status: Closed - Implemented

    Comments: ICE concurred with GAO's recommendation. According to ICE, the agency is constantly reviewing and evaluating its reporting capabilities. Congress passed the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), which eliminated NIPLECC and created the Intellectual Property Coordinator (IPEC) to enhance federal coordination and oversee the development of a joint strategic plan. The PRO-IP Act listed specific content requirements for the joint strategic plan, including the development of performance measures to monitor the results of the joint strategic plan during the following year. ICE worked with the IPEC to identify performance measures to include in the IPEC's first joint strategic plan, which was issued in June 2010. The joint strategic plan also states that the IPEC, in coordination with DHS and others, will report on training and outreach by the U.S. government involving IP. Subsequently, ICE provided 2 years of data on the number of IP investigations opened, number of arrests, indictments, and convictions for the IPEC's 2010 and 2011 annual reports as well as data on its seizures of infringing goods. In addition, the annual reports provide 2 years of data on the number of cases that were directly referred to the IPR Center (an interagency task force) and vetted as well as the number of cases de-conflicted that had been opened by the field offices of the partner law enforcement agencies, including ICE. Also, the annual reports include information on training provided by the federal agencies, including ICE, along with a link to a U.S. government data base (www.usipr.gov) that tracks U.S. IP training for some U.S. agencies. The IPEC annual reports were provided to Congress as required by the act and made available to the public on the IPEC web site.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretary of Homeland Security should direct ICE, FBI, and DOJ to take steps to better identify enforcement actions against IP-infringing goods that pose a risk to the public health and safety of the American people, and collect and report this data throughout each agency and to Congress.

    Agency Affected: Department of Justice: Federal Bureau of Investigation

    Status: Closed - Implemented

    Comments: In 2009, FBI officials told us that FBI had created a new database management system that could sort IP enforcement data by classifications, such as public health and safety, and that FBI had broken down its IP enforcement actions related to public health and safety into four sub-categories. FBI provided GAO with classified documentation of the data it is collecting on this issue and the reports that it runs to analyze the data. Based on this documentation, we believe FBI can now better identify its IP enforcement actions related to public health and safety. Further, in May 2009, the FBI Director testified during the House Judiciary Committee's FBI oversight hearings on FBI's role in two high-priority, multi-agency efforts to address dangerous health and safety related IP violations.

    Recommendation: To better inform Congress and affected rights holders regarding its enforcement of exclusion orders and address certain procedural weaknesses, the Secretary of Homeland Security should direct the Commissioner of CBP to begin collecting data on the number of exclusions, in total and per exclusion order.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection

    Status: Closed - Implemented

    Comments: In a February 2008 letter, DHS commented that it concurred with the GAO recommendation and would begin tracking the number of denials of entry related to each exclusion order and report aggregate totals by exclusion order in its end of year intellectual property rights statistics. CBP developed a web-based system to create, process, and track notices resulting from actions taken pursuant to ITC exclusion orders. In August 2010, the system became operational and was implemented throughout CBP's field offices.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General the Secretary of Homeland Security should direct CBP, ICE, FBI, and DOJ to establish performance measures and targets for IP-related enforcement activity and report such measures, targets, and actual performance to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and Congress.

    Agency Affected: Department of Justice

    Status: Closed - Implemented

    Comments: Congress passed the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), which eliminated NIPLECC and created the Intellectual Property Coordinator (IPEC) to enhance federal coordination and oversee the development of a joint strategic plan. The PRO-IP Act listed specific content requirements for the joint strategic plan, including the development of performance measures to monitor the results of the joint strategic plan during the following year. DOJ worked with the IPEC to identify performance measures to include in the IPEC's first joint strategic plan, which was issued in June 2010. The joint strategic plan also states that the IPEC, in coordination with DHS and others, will report on training and outreach by the U.S. government involving IP. Subsequently, DOJ provided 2 years of data on the number of IP investigative referrals received by U.S. Attorneys, and the number of cases charged with the number of defendants for the IPEC's 2010 and 2011 annual reports. In addition, DOJ reported on sentencing and prison terms. Also, the annual reports provide 2 years of data on the number of cases that were directly referred to the IPR Center (an interagency task force) and vetted as well as the number of cases de-conflicted that had been opened by the field offices of the partner law enforcement agencies, including DOJ. The annual reports also include information on training provided by the federal agencies, including DOJ. The IPEC annual reports were provided to Congress as required by the act and made available to the public on the IPEC web site.

    Recommendation: To clarify the mission and structure of the National Intellectual Property Rights Coordination Center, the Attorney General and the Secretary of Homeland Security, in consultation with NIPLECC, should direct their IP enforcement agencies to reassess the National Intellectual Property Rights Coordination Center's mission and how its future performance will be assessed.

    Agency Affected: Department of Homeland Security

    Status: Closed - Implemented

    Comments: In commenting on the report, the Department of Homeland Security (DHS) said it concurred with this recommendation and planned to discuss it with the Department of Justice (DOJ). DOJ had no comment. As we reported, the DHS' Immigration and Customs Enforcement (ICE) had begun to reach out to other IP enforcement agencies in early 2008 to discuss their role in the IPR Center. This action coincided with the Center's relocation to new physical space. At that time, agencies held mixed views on the future construct of the IPR Center. According to ICE, which is now the lead agency for the IPR Center, when ICE invited agencies to participate in the center in 2008, it also circulated a draft Concept of Operations for the new center. The draft document helped guide discussions among agency representatives about the center's mission and agency roles. Agencies ultimately agreed that the center would become an interagency operational hub for IP enforcement, in contrast to its former public outreach and training focus. As of July 2010, the IPR Center had 12 domestic and international law enforcement agencies that participated in its operations, and 4 agencies were on-site at the center. Other agencies participated on a part-time basis as needed. In 2008, ICE also distributed protocols to participating agencies that documented how leads on IP cases would be vetted and disseminated among participating agencies for further investigation. According to an ICE official, as of September 2010, all but one agency had signed off on these protocols. Participating agencies have not discussed how to measure the Center's performance, nor is this being considered. According to ICE, it is not practical to establish performance targets for the Center itself, partly because the work is carried out by participating agencies and any targets that the Center might establish would be vulnerable to these agencies' shifting priorities and funding issues. We continue to believe that there are ways to assess how the Center is performing its current role, such as level of agency participation and satisfaction. However, since the appointment of the U.S. Intellectual Property Enforcement Coordinator (IPEC), we believe that the structure is in place to achieve more coordination and communication across all federal IP enforcement activities, of which the IPR Center is a part. Moreover, the 2010 Joint Strategic Plan on Intellectual Property Enforcement, a multi-agency effort led by the IPEC, laid the groundwork for a more strategic approach to IP enforcement, including as carried out by key agencies that participate in the IPR Center. The strategic plan recognizes the importance of performance measures and sets out an initial list of key indicators, recognizing that modifications or additional measures may follow as the U.S. government gains experience. Based on this additional structure and strategic planning, we are closing this recommendation as implemented.

    Recommendation: To better inform Congress and affected rights holders regarding its enforcement of exclusion orders and address certain procedural weaknesses, the Secretary of Homeland Security should direct the Commissioner of CBP to identify factors currently limiting their enforcement capabilities and develop a strategy for addressing those limitations along with a timeline for implementing the strategy.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection

    Status: Closed - Implemented

    Comments: U.S. Customs and Border Protection (CBP) uses Trade Alerts posted to its intranet to notify ports of entry of exclusion orders that are to be enforced. We found several procedural weaknesses in CBP's enforcement, including no Trade Alerts for about half of the exclusion orders in force during our audit, delays in posting Trade Alerts, minimal use of electronic targeting, and no procedures for updating Trade Alerts when the status of exclusion orders changes or expires. To enforce exclusion orders, CBP requires substantial amounts of complex information from the International Trade Commission (ITC), which is responsible for issuing exclusion orders. At the time of our audit, such information was transmitted in paper form from ITC to CBP, a cumbersome process that contributed to delays in posting Trade Alerts. In response to the recommendation, the CBP office responsible for writing the Trade Alerts worked with the ITC to explore alternative means of transmitting the information. In 2009, ITC developed a secure web-based repository to allow for the exchange of information between the two agencies in a much faster manner while still protecting any confidential business information from disclosure. According to CBP, the new system has provided CBP with necessary documentation on new orders and updates on existing orders more quickly. These changes help ensure that CBP has more complete information on the exclusion orders it is to enforce.

    Recommendation: To clarify the mission and structure of the National Intellectual Property Rights Coordination Center, the Attorney General and the Secretary of Homeland Security, in consultation with NIPLECC, should direct their IP enforcement agencies to define agencies' role in the center and the number and types of resources needed to operate the center.

    Agency Affected: Department of Justice

    Status: Closed - Implemented

    Comments: In commenting on the report, DHS said it concurred with this recommendation and planned to discuss it with DOJ. DOJ did not comment on the recommendation. Whereas the center had previously been a joint partnership between ICE and FBI, ICE is now the lead agency for the center, clarifying the roles of these two agencies. According to ICE, the IPR Center is now a multi-agency partnership of 12 domestic and international law enforcement agencies. Each partner agency determined its own level of resource commitment to the center. As of July 2010, DHS staff included 49 ICE staff and 3 CBP staff. FBI's Cyber Division Unit physically moved to the center in April 2010, according to the Unit Chief, and was staffed with 5 agents as of August 2010. Other agencies represented at the center include the Food and Drug Administration, the U.S. Postal Inspection Service, and the Department of Commerce's Patent and Trademark Office, among others. The types of staff at the center include law enforcement agents, analysts, and trade specialists, among others. The ICE Assistant Secretary testified before the House Committee on Foreign Affairs in July 2010 that the center "brings together key domestic and foreign investigative agencies to increase the efficient and effective leverage of resources, skills, and authorities to provide a comprehensive response to IP theft."

    Recommendation: To clarify the mission and structure of the National Intellectual Property Rights Coordination Center, the Attorney General and the Secretary of Homeland Security, in consultation with NIPLECC, should direct their IP enforcement agencies to report to Congress on the center's redefined purpose, operations, required resources, and progress within 1 year of the center's relocation.

    Agency Affected: Department of Justice

    Status: Closed - Implemented

    Comments: In commenting on the report, the Department of Homeland Security (DHS) said it concurred with this recommendation and planned to discuss it with the Department of Justice (DOJ). DOJ did not comment on the recommendation. ICE has become the lead agency for the IPR Center. In the period between October 2008 and September 2010, ICE briefed staff from multiple House and Senate committees about the IPR Center and gave staff tours of the center's new space. ICE also testified several times before Congress on its IP enforcement activities, including the operations of the IPR Center. In addition, the IPR Center's structure and operations were discussed in the 2010 Joint Strategic Plan on Intellectual Property Enforcement, a plan that the U.S. Intellectual Property Enforcement Coordinator submitted to the President and Congress.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretary of Homeland Security should direct ICE, FBI, and DOJ to take steps to better identify enforcement actions against IP-infringing goods that pose a risk to the public health and safety of the American people, and collect and report this data throughout each agency and to Congress.

    Agency Affected: Department of Justice

    Status: Open

    Comments: GAO has requested information from DOJ concerning any actions they have taken in response to the recommendation.

    Recommendation: To clarify the mission and structure of the National Intellectual Property Rights Coordination Center, the Attorney General and the Secretary of Homeland Security, in consultation with NIPLECC, should direct their IP enforcement agencies to reassess the National Intellectual Property Rights Coordination Center's mission and how its future performance will be assessed.

    Agency Affected: Department of Justice

    Status: Closed - Implemented

    Comments: In commenting on the report, the Department of Homeland Security (DHS) said it concurred with this recommendation and planned to discuss it with the Department of Justice (DOJ). DOJ had no comment. As we reported, the DHS' Immigration and Customs Enforcement (ICE) had begun to reach out to other IP enforcement agencies in early 2008 to discuss their role in the IPR Center. This action coincided with the Center's relocation to new physical space. At that time, agencies held mixed views on the future construct of the IPR Center. According to ICE, which is now the lead agency for the IPR Center, when ICE invited agencies to participate in the center in 2008, it also circulated a draft Concept of Operations for the new center. The draft document helped guide discussions among agency representatives about the center's mission and agency roles. Agencies ultimately agreed that the center would become an interagency operational hub for IP enforcement, in contrast to its former public outreach and training focus. As of July 2010, the IPR Center had 12 domestic and international law enforcement agencies that participated in its operations, and 4 agencies were on-site at the center. Other agencies participated on a part-time basis as needed. In 2008, ICE also distributed protocols to participating agencies that documented how leads on IP cases would be vetted and disseminated among participating agencies for further investigation. According to an ICE official, as of September 2010, all but one agency had signed off on these protocols. Participating agencies have not discussed how to measure the Center's performance, nor is this being considered. According to ICE, it is not practical to establish performance targets for the Center itself, partly because the work is carried out by participating agencies and any targets that the Center might establish would be vulnerable to these agencies' shifting priorities and funding issues. We continue to believe that there are ways to assess how the Center is performing its current role, such as level of agency participation and satisfaction. However, since the appointment of the U.S. Intellectual Property Enforcement Coordinator (IPEC), we believe that the structure is in place to achieve more coordination and communication across all federal IP enforcement activities, of which the IPR Center is a part. Moreover, the 2010 Joint Strategic Plan on Intellectual Property Enforcement, a multi-agency effort led by the IPEC, laid the groundwork for a more strategic approach to IP enforcement, including as carried out by key agencies that participate in the IPR Center. The strategic plan recognizes the importance of performance measures and sets out an initial list of key indicators, recognizing that modifications or additional measures may follow as the U.S. government gains experience. Based on this additional structure and strategic planning, we are closing this recommendation as implemented.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretary of Homeland Security should direct CBP, ICE, FBI, and DOJ to establish performance measures and targets for IP-related enforcement activity and report such measures, targets, and actual performance to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and Congress.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection

    Status: Closed - Implemented

    Comments: CBP concurred with GAO's recommendation. According to CBP, work on trade enforcement measures has been an on-going process. Moreover, Congress added requirements for performance measures and strategic planning related to IP enforcement across the federal government. In July 2010, CBP issued a 5-year IP enforcement strategy in response to congressional mandates accompanying the fiscal year 2011 Department of Homeland Security Appropriations Act (P.L. 111-83). CBP's strategic plan identifies 3 enforcement activities under its authority that will be tracked: seizing and forfeiting infringing goods, conducting audits, and levying fines, and penalties for IP violations. In addition, Congress passed the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), which eliminated NIPLECC and created the Intellectual Property Coordinator (IPEC) to enhance federal coordination and oversee the development of a joint strategic plan. The PRO-IP Act listed specific content requirements for the joint strategic plan, including the development of performance measures to monitor the results of the joint strategic plan during the following year. The joint strategic plan also states that the IPEC, in coordination with DHS and others, will report on training and outreach by the U.S. government involving IP. CBP worked with the IPEC to identify performance measures to include in the IPEC's first joint strategic plan, which was issued in June 2010. Subsequently, CBP has provided 2 years of data on seizures and penalties for the IPEC's 2010 and 2011 annual reports. Also, the annual reports include information on training provided by the federal agencies, including CBP, along with a link to a U.S. government data base (www.usipr.gov) that tracks training for some U.S. agencies. The IPEC annual reports were provided to Congress as required by the act and made available to the public on the IPEC web site.

    Recommendation: To better inform management and resource allocation decisions and report on agency achievements, the Attorney General and the Secretary of Homeland Security should direct CBP, ICE, FBI, and DOJ to establish performance measures and targets for IP-related enforcement activity and report such measures, targets, and actual performance to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and Congress.

    Agency Affected: Department of Justice: Federal Bureau of Investigation

    Status: Closed - Implemented

    Comments: Congress passed the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), which eliminated NIPLECC and created the Intellectual Property Coordinator (IPEC) to enhance federal coordination and oversee the development of a joint strategic plan. The PRO-IP Act listed specific content requirements for the joint strategic plan, including the development of performance measures to monitor the results of the joint strategic plan during the following year. FBI worked with the IPEC to identify performance measures to include in the IPEC's first joint strategic plan, which was issued in June 2010. Subsequently, FBI provided 2 years of data on the number of IP investigations opened, number of arrests, indictments, and convictions for the IPEC's 2010 and 2011 annual reports. In addition, the annual reports provide 2 years of data on the number of cases that were directly referred to the IPR Center (an interagency task force) and vetted as well as the number of cases de-conflicted that had been opened by the field offices of the partner law enforcement agencies, such as the FBI. Also, the annual reports include information on training provided by the federal agencies, including FBI. The IPEC annual reports were provided to Congress as required by the act and made available to the public on the IPEC web site.

    Recommendation: To better inform Congress and affected rights holders regarding its enforcement of exclusion orders and address certain procedural weaknesses, the Secretary of Homeland Security should direct the Commissioner of CBP to examine CBP's ability to develop regulations to allow notification of exclusions to affected rights holders, and if authorized, develop such regulations.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection

    Status: Closed - Implemented

    Comments: CBP concurred with our recommendation and noted that it would research the agency's legal authority on providing affected rights holders with notification of exclusions. Although CBP determined that it did not have the statutory authority, it identified the need for legislative action as part of the Administration's review of existing laws to strengthen intellectual property enforcement. In March 2011, the Administration reported the results of its efforts and set forth 20 legislative recommendations, which included a recommendation that Congress give the Department of Homeland Security authority to notify rights holders that infringing goods have been excluded or seized pursuant to an International Trade Commission order. As of June 2012, Congress had not enacted into law this recommendation.

    Recommendation: To clarify the mission and structure of the National Intellectual Property Rights Coordination Center, the Attorney General and the Secretary of Homeland Security, in consultation with NIPLECC, should direct their IP enforcement agencies to define agencies' roles in the center and the number and types of resources needed to operate the center.

    Agency Affected: Department of Homeland Security

    Status: Closed - Implemented

    Comments: In commenting on the report, DHS said it concurred with this recommendation and planned to discuss it with DOJ. DOJ did not comment on the recommendation. Whereas the center had previously been a joint partnership between ICE and FBI, ICE is now the lead agency for the center, clarifying the roles of these two agencies. According to ICE, the IPR Center is now a multi-agency partnership of 12 domestic and international law enforcement agencies. Each partner agency determined its own level of resource commitment to the center. As of July 2010, DHS staff included 49 ICE staff and 3 CBP staff. Fib's Cyber Division Unit physically moved to the center in April 2010, according to the Unit Chief, and was staffed with 5 agents as of August 2010. Other agencies represented at the center include the Food and Drug Administration, the U.S. Postal Inspection Service, and the Department of Commerce's Patent and Trademark Office, among others. The types of staff at the center include law enforcement agents, analysts, and trade specialists, among others. The ICE Assistant Secretary testified before the House Committee on Foreign Affairs in July 2010 that the center "brings together key domestic and foreign investigative agencies to increase the efficient and effective leverage of resources, skills, and authorities to provide a comprehensive response to IP theft."

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