While the Internet community came out in force to protest the free speech and privacy threats posed by the PROTECT IP Act (PIPA) and the Stop Online Piracy Act (SOPA), an international trade agreement with the same stated goals—and potentially greater threats—was being negotiated behind closed doors. While the First Amendment can be served by intellectual property protections that incentivize content creation, IP laws can easily be misused. Like PIPA and SOPA, the Anti-Counterfeiting Trade Agreement (“ACTA”) is another misguided and overbroad attempt to crack down on counterfeiting and piracy over the Internet. There has been excellent analysis of the issue by sources including EFF, Tech Dirt and Ars Technica, but we have also been watching this issue and wanted to summarize what’s at stake.
While many of the worst provisions of ACTA were ultimately watered down (mainly due to pressure from outside groups reacting to leaked drafts), many issues remain, both procedural and substantive. There are four primary problems with ACTA.
the Administration currently lacks a means to constitutionally enter ACTA without ex post Congressional approval. The present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers. If Congress allows the executive to claim that ACTA was authorized by language that clearly does not authorize the agreement, it will be ceding unprecedented power to the executive."
Senator Wyden (D-OR) has also questioned the president’s authority to treat ACTA as a sole agreement. “There are questions of constitutional authority surrounding whether the administration can enter into this agreement without Congress’s approval,” he said. “Either way, when international accords, like ACTA, are conceived and constructed under a cloak of secrecy it is hard to argue that they represent the broad interests of the general public. The controversy over ACTA should surprise no one.”
Rep. Darrell Issa (R-CA) warned participants at the World Economic Forum that ACTA was more dangerous than SOPA and PIPA and.then called into question the president’s authority to negotiate the agreement. He said, “It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”
To date the United States, the European Union (and 22 of its member states), Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea have all signed ACTA but none have formally ratified the agreement yet.
At the grassroots and at the highest levels of government, ACTA has sparked protests. In Poland, tens of thousands of people protested across the nation and activists attacked government websites when that country signed the agreement in January. Members of the Polish Parliament wore Guy Fawkes masks to demonstrate their disapproval. Since then, protests have been organized throughout Europe including in Sweden, Germany, Bulgaria, Greece, and the United Kingdom. Notably, Kader Arif, the first "rapporteur" for ACTA in the EU parliament (the member who prepares the official recommendation to the parliament on a legislative proposal), quit his role in disgust, stating,
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 organizations, 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.
Arif’s successor, David Martin, recommended against adoption of the agreement, fearing unintended consequences and overbroad enforcement (though he also asked the parliament to consider a replacement).
Post-ACTA: The Trans-Pacific Partnership
Since ACTA’s completion we have learned that part of a new massive trade agreement, the Trans-Pacific Partnership (TPP), aims "to ensure an effective and balanced approach to intellectual property rights among the TPP countries.” Talks on the TPP are currently being held between nine Pacific Rim countries: Australia, Brunei, Canada, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. Like ACTA all negotiations are being conducted behind closed doors with details shared only with Industry Trade Advisory Committees (ITAC). The U.S. ITAC is called ITAC 15 and includes top executives from AT&T, Verizon, the RIAA, the pharmaceutical lobby, and Cisco. All anyone else knows about the agreement comes from a leak of the "intellectual property chapter" that surfaced about a year ago. EFF’s international IP director, Gwen Hinze, told Ars Technica, “I would say it’s ACTA-plus, not ACTA redux,” Secret international trade agreements negotiated between only government and industry is not a trend we want to see catch on.
Healthy democracies depend on transparency and public debate. Good policies are created through the input of experts, advocates, industry, policy makers, and citizens. Circumventing basic checks and balances to fast-track policies that have already been defeated by the public—often called “policy laundering”— is not how representative democracy is supposed to work. Many fear that agreements made in ACTA and TPP will put our civil liberties at risk. At the very least, the president should allow a free and open debate on the measures.