If you thought that the Stop Online Piracy Act (HR 3261 and Protect IP Act (S968) were bad, check out the international version.
ACTA, the Anti-Counterfeiting Trade Agreement being negotiated by the European Union, The U.S., Japan, Canada, South Korea, Australia, New Zealand, Mexico, Jordan, Morocco, Singapore, and the United Arab Emirates, has been kept mainly out of the news leading one to ponder what is being negotiated that they don’t want us to know about. Both Presidents, Bush and Obama, cited national security concerns to justify withholding information on the agreement only letting a few select individuals view its contents after requiring them to a sign a non-disclosure agreement.
On January 26, the European Union and 22 of its member states signed ACTA. Eight countries, including the U.S. [Obama] signed the agreement October 1, 2011. Little is known about the negotiations or the final draft as Obama has put forth arguments that it does not require Senate authorization because it is technically an “executive agreement.”
Senator Ron Wyden disagrees. He sent a letter to Obama in October letting him know that if the USTA ratifies ACTA without Congressional consent it may be circumventing Congress’s Constitutional authority to regulate international commerce and protect intellectual property. “It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no changes in U.S. law…the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.”
There is a real constitutional issue here. TechDirt says that “the law is clear that the only things that can be covered by executive agreements are those that involve items that are solely under the President’s mandate. That is, you can’t sign an executive agreement that impacts the things Congress has control over. Article 1, Section 8 of the Constitution gives Congress authority “to promote the Progess of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and discoveries.”
Under the provisions of ACTA, copyright holders will be granted sweeping direct powers to demand ISP’s remove material from the Internet on a whim. Whereas ISPs normally are only forced to remove content after a court order, all legal oversight will be abolished, a precedent that will apply globally, rendering the treaty worse in its poential scope for abuse than SOPA or PIPA. A country known for its enforcement of harsh Internet censorship policies like China could demand that an ISP in the U.S. remove content or terminate a website on its server altogether. This could be bad news for websites the government doesn’t like. We’ve already seen from enforcement of similar copyright policies in the U.S. that websites are sometimes targeted for no justifiable reason.
ACTA establishes a new international legal framework and creates its own governing body outside of existing international institutions such as the World Trade Organization, the World Intellectual Property Organizations or the United Nations. The European Commission explained that a free-standing agreement would provide the most flexibility to pursue the project among interested countries outside the priorities of WTO, G8, and the WIPO.
The noncriminal portion on judicial enforcement can override inconsistent state law and possibly even federal law. It could invalidate state laws that conflict with its general policies under a doctrine known as “obstacle preemption”.
Articles 5 and 6 of the treaty provides for the creation of an ACTA Committee that would have the power to make subsequent amendments to the agreement, subject to the approval of all signed parties, without public review or judicial review which means the treaty could be expanded on a whim.
After document leaks in 2008, 2009 and again in 2010, and requests to see the document were denied to the Canadian Library Association, IP Justice, Consumers Union of Japan, and Doctors Without Borders, the negotiating parties agreed to release the official current draft published on April 20, 2010, even though the text was still subject to negotiations [changes]. In March 2010 another leaked draft text showed that the European Commission had proposed language to require criminal penalties for “inciting, aiding and abetting” certain offenses, including “at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale.
The Free Software Foundation states that ACTA threatens free software by creating a culture “in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting.”
Aaron Shaw, Research Fellow at the Berkman Center for Internet and Society at Harvard University argues that ACTA “would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms remain undecided. . .removing “legal safeguards that protect Internet Service Provers from liability for the actions of their subscribers. . .facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process.”
Despite the potentially significant harmful impact on consumers and Internet innovation and the expedited time frame in which the treaty is being forced upon us, citizens that will be directly affected have been given almost no information on the final version of the treaty and very little opportunity to express their views. Obama has bound the U.S. to an international treaty that will destoy America’s freedom of expression and calling it an executive order is his means of bypassing Congress.
The hacktivist group, Anonymous attacked and took the Federal Trade Commission website off line to protest the treaty. There has also been major demonstrations across Europe and in major cities throughout Poland in protest of the treaty.
Critics of this treaty are urging those concerned about Obama’s actions to contact your Senators and demand that they take action. ACTA will be challenged in court. But, the best way to deal with Obama’s power grab is for Congress to grow a spine and stand up for our Constitution.
If Obama succeeds in expanding his powers by bypassing Congress to install a treaty without Senate ratification he will have established a precedent to bypass Congress on other international matters related to trade, communication and intellectual properties.
What next, an executive order allowing the U.N. Small Arms Treaty to become law of the land?