If there’s one thing that encapsulates what’s wrong with the way government functions today, ACTA is it. You wouldn’t know it from the name, but the Anti-Counterfeiting Trade Agreement is a plurilateral agreement designed to broaden and extend existing intellectual property (IP) enforcement laws to the Internet. While it was only negotiated between a few countries, it has global consequences. First because it will create new rules for the Internet, and second, because its standards will be applied to other countries through the U.S.’s annual Special 301 process. Negotiated in secret, ACTA bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens. Worse still, the agreement creates a new global institution, an "ACTA Committee" to oversee its implementation and interpretation that will be made up of unelected members with no legal obligation to be transparent in their proceedings. Both in substance and in process, ACTA embodies an outdated top-down, arbitrary approach to government that is out of step with modern notions of participatory democracy.
The EU and 22 of its 27 member states signed ACTA yesterday in Tokyo. This news is neither momentous nor surprising. This is but the latest step in more than three years of non-transparent negotiations. In December, the Council of the European Union—one of the European Union’s two legislative bodies, composed of executives from the 27 EU member states—adopted ACTA during a completely unrelated meeting on agriculture and fisheries. Of course, this is not the end of the story in the EU. For ACTA to be adopted as EU law, the European Parliament has to vote on whether to accept or reject it.
In the U.S., there are growing concerns about the constitutionality of negotiating ACTA as a “sole executive agreement”. This is not just a semantic argument. If ACTA were categorized as a treaty, it would have to be ratified by the Senate. But the USTR and the Administration have consistently maintained that ACTA is a sole executive agreement negotiated under the President’s power. On that theory, it does not need Congressional approval and thus ACTA already became binding on the US government when Ambassador Ron Kirk signed it last October.
But leading US Constitutional Scholars disagree. Professors Jack Goldsmith and Larry Lessig, questioned the Constitutionality of the executive agreement classification in 2010:
The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.
(And by the way, we agree [pdf].)
Senator Ron Wyden has been asking these questions for years, first demanding an explanation from USTR ambassador Ron Kirk, President Obama, and now the administration’s top international law expert Harold Koh. The distinction between executive agreement and treaty should not be lost on this administration: as a Senator, Vice President Joe Biden used the same argument to require the Bush administration to seek Senate approval for an arms reduction agreement.
Public interest groups and informed politicians have long lamented these problems with ACTA. But the impact of dubious backroom law-drafting is getting fresh attention in light of the powerful global opposition movement that has emerged out of last week’s Internet blackout protests. Activists and netizens all around the world have woken up to the dangers of overbroad enforcement law proposals drafted by monopoly industry lobbyists, and rushed into law through strategic lobbying by the same corporate interests that backed SOPA and PIPA. Tens of thousands are protesting in the streets in Poland as their ambassador signed the agreement in Tokyo. The EU Parliament’s website and others have come under attack for their involvement in these laws. The Member of the European Parliament who was appointed to be the rapporteur for ACTA in the European Parliament, Kader Arif, quit yesterday in protest. In a statement he said:
I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly…
…This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade.
We couldn’t have said it better ourselves. ACTA may have been signed by public officials, but it’s crystal clear that they are not representing the public interest.
It is now up to the collective will of the public to decide what to do next, and for individuals to ask themselves what they want their government to look like. Do you believe in democracy? Do you believe that laws should be made to reflect our collective best interests, formulated through an open transparent process? One that allows everyone, from experts to civil society members, to analyze, question and probe an agreement that will lead to laws that will impact potentially billions of lives? If we don’t do anything now, this agreement is going to crawl itself into power. With the future at stake like this, it’s never too late to fight.
If you live in Europe, follow these links to learn how you can take immediate action and stay informed on the latest updates:
La Quadrature du Net (@laquadrature): How to Act Against ACTA
European Digital Rights (@EDRi_org): Stop ACTA!
Open Rights Group (@OpenRightsGroup): ACTA: signed, not yet sealed – now it's up to us
Foundation for a Free Information Infrastructure (@FFII): ACTA Blog
For those in the U.S., you can demonstrate your opposition to the dubious decision to negotiate ACTA as a sole executive agreement to bypass proper congressional review by signing this petition on the whitehouse.gov website, demanding the Administration submit ACTA to the Senate for approval.
EFF will continue to monitor ACTA's global implementation and watch for efforts to use ACTA to broaden US enforcement powers.