April 12, 2012
“ACTA is just a way for them to control what you see and hear on the Internet.” –KTRN
In the last few weeks, we’ve seen surprising and significant developments with the Anti-Counterfeiting Trade Agreement (ACTA) in both the US and the EU. As we’ve noted before, ACTA is a plurilateral agreement designed to broaden and extend existing intellectual property enforcement laws to the Internet. In both process and in substance, it is a deeply undemocratic initiative that has bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens.
This is the first in a series of posts detailing the current state of play. Today, we’re reviewing recent U.S. developments and what we and others are doing to highlight the illegitimacy of this controversial agreement. In February, EFF submitted a Freedom of Information Act (FOIA) request to the U.S. State Department, seeking a copy of the “Circular 175” memorandum for ACTA, and the accompanying Memorandum of Law – key documents regarding the constitutionality of ACTA. The State Department is due to respond tomorrow.
The U.S. Trade Ambassador, Ronald Kirk, signed ACTA in October 2011 at a much-heralded ceremony in Tokyo. However, that does not necessarily mean that ACTA is a done deal in the U.S. Whether ACTA is now binding on the U.S. government, and whether Congress should have any role in reviewing ACTA, continue to be much-debated questions. Several U.S. Congressional representatives have recently taken action to highlight the unusually secretive process used to negotiate ACTA as compared to other IP agreements, and the particular efforts that were taken to evade normal Congressional review of the agreement.
Since 2008, the U.S. Trade Representative’s Office (USTR) has repeatedly stated that ACTA was negotiated as a “sole executive agreement” under the President’s power to conclude agreements regarding matters delegated to the President under Article II of the U.S. Constitution, and therefore does not need to be put before Congress for review and approval. That view has been criticized by leading U.S. Constitutional Law professors on several occasions (see here, here, and here, and our views).