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ACTA and The United States Government

While the buzz surrounding the Anti-Counterfeiting Trade Agreement (ACTA), something of a global cousin to the SOPA/PIPA movement, may have died down, the issue itself is far from over. In Europe, the...
ACTA and The United States Government
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  • While the buzz surrounding the Anti-Counterfeiting Trade Agreement (ACTA), something of a global cousin to the SOPA/PIPA movement, may have died down, the issue itself is far from over. In Europe, the agreement is awaiting full ratification, and has faced a great deal of backlash from EU citizens in many countries. While ACTA is indeed a global issue, the United States has played a major role in the agreement’s structure, while attempting to fast-track the ratification process.

    With that in mind, the Electronic Frontier Foundation published a “catching us up” article, one that reviews how U.S. official have handled the treaty, including the apparent subversive methods that occurred in relation to the plurilateral agreement. Some of the findings are troubling. Aside from that, it also demonstrates a “protect intellectual property at any cost” mentality from these same elected officials.

    An example of this:

    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.

    This is important because if ACTA was being handled as a treaty, it would require approval from 2/3 of the Senate. However, the U.S. Trade Representative intimates that Congress essentially forfeited their position as a reviewing entity:

    Ambassador Kirk quoted from the State Department’s letter, suggesting that Congress had authorized the Executive to negotiate ACTA, and stated that ACTA was in fact already binding on the United States. By implication, Congress has no role in reviewing and approving ACTA…

    First, they contradicted previous statements from the USTR that ACTA does not create a binding obligation on the United States. That makes us wonder whether something has changed, or whether the previous statements were made without internal U.S. government legal vetting….

    Second, in citing the PRO-IP Act of 2008, the State Department’s letter highlights the haphazard and unusual way in which ACTA has been concluded. The letter from the State Department suggests that ACTA came about to help “answer the legislative call” of the PRO-IP Act, even though ACTA was announced the year before, in October 2007. Although the State Department’s letter stopped short of calling ACTA a Congressional-Executive Agreement, it certainly seemed intended to give that impression. But outside of the clear terms of the PRO –IP Act, it would be misleading to suggest that Congress gave the Executive full rein to enter into an international agreement with broad IP enforcement powers that would restrict Congress from engaging in domestic reform of controversial parts of U.S. law. ACTA also includes a new ACTA Committee that will have the final say on ACTA’s implementation in national law…

    The EFF’s study also includes this important detail concerning international legislation:

    No agencies can conclude an international agreement in the name of the United States without first consulting with the State Department. The determination of whether an agreement is an international agreement for this purpose must be made by the Office of the Legal Advisor to the State Department (and not the USTR).

    Which makes USTR’s claim that ACTA is a “sole executive agreement” that doesn’t need Congressional input is not only false, but thoroughly incorrect as well. Based on the EFF’s finding, perhaps the U.S. Government should just scrap ACTA and start over.

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