Guest Post: ACTA: “Would Usurp Congressional Authority”, “Threatens Numerous Public Interests”, a “Backroom Special Interest Deal”, a “Masquerade”

By Washington’s Blog

SOPA, PIPA, ACTA … What’s Next?

We just beat back SOPA and PIPA with the web blackout.

Now everyone is talking about ACTA. But – because ACTA is complicated, and is just starting to receive coverage – most are not sure exactly what ACTA really is, or why we should be concerned about it.

We’ll give you an executive summary of what you need to know.

Instead of giving you the specifics about what’s actually in the bill (we provide links at the end for those who want to know), we’ll explain why the procedure used is a recipe for disaster.

Why are we stressing procedure over substance?

Because, as awful as ACTA is, there are other horrible bills such as the Trans Pacific Partnership Agreement waiting in the wings … which may be even worse than ACTA.

Unless we understand the rotten, anti-democratic process which is causing these bad bills to be introduced, we will be caught off-guard by the introduction of one draconian bill after another … and we will lose the fight for Internet freedom.

(The problem is that powerful men are making laws in secret to protect their interests.)

Hollywood Tries to Ram U.S. IP Policies Down the Throat of Europe

On the most superficial level, ACTA is an attempt to ram American intellectual property policies down Europe’s throat.

As the Electronic Frontier Foundation’s Eva Galperin told me:

The United States will continue to use multi-national treaties negotiated in secret without the consultation of civil society or other key stakeholders as a way of ramming US IP policy down the throats of other countries.

But this is a superficial analysis. Specifically, it is also an attempt to ram Hollywood’s interests down the throats of the American people … and Congress.

A Handful of Powerful Men Are Trying to Railroad Democracy and the Constitution to Protect Their Interests

The fastest way to understand ACTA is to look at the way in which its backers have tried to trample the normal democratic processes in the U.S., Europe and elsewhere in order to railroad it through.

As an international treaty, ACTA is supposed to be ratified by the American Senate and other appropriate government legislatures. But this is not at all what has happened.

Instead, ACTA has been negotiated for years in secret, without disclosing its contents – let alone seeking approval from – Congress or other legislatures.

In the United States, for example, President Bush and President Obama hid ACTA negotiations under the veil of “National Security”, thus keeping it away from prying eyes … including Congress.

Republican Congressman Darrell Issa says that ACTA is more dangerous than SOPA:

As a member of Congress, it’s more dangerous than SOPA. 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.

Democratic Senator Wyden has argued for years – in letters to USTR ambassador Ron Kirk, President Obama, and the administration’s top international law expert Harold Koh. – that adoption of ACTA is unconstitutional unless without Senate approval.

For example, Wyden wrote last October:

Regardless of whether the agreement requires 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.

The Member of the European Parliament who was appointed to be the rapporteur for ACTA in the European Parliament (Kader Arif) quit last week in protest. Arif 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.

As rapporteur of this text, I have faced never-before-seen manoeuvres from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens’ legitimate demands.”

Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications.

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.

As Harvard professors Jack Goldsmith and Lawrence Lessig wrote in the Washington Post in March 2010:

The much-criticized cloak of secrecy that has surrounded the Obama administration’s negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken Wednesday. Theleaked draft of ACTA belies the U.S. trade representative’s assertions that the agreement would not alter U.S. intellectual property law. And it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States.


Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis and when Franklin Roosevelt recognized and settled expropriation claims with the Soviet Union.


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.


When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given.The Bush administration complied.

Congress should follow Biden’s lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.


Congress should resist this attempt to evade the checks established by our Framers.

Over 75 law professors – some of them quite prominent – wrote a letter to President Obama in October 2010 stating:

ACTA’s negotiation has been conducted behind closed doors, subject to intense but needless secrecy, with the public shut out and a small group of special interests very much involved. The United States Trade Representative (USTR) has been involved in negotiations relating to ACTA for several years, and there have been drafts of portions of the agreement circulating among the negotiators since the start of negotiations. Despite that, the first official release of a draft text took place only in April, 2010. And following that release the USTR has not held a single public on-the-record meeting to invite comments on the text. Worse, in every subsequent meeting of the negotiating parties, the U.S. has blocked the public release of updated text.


This degree of secrecy is unacceptable, unwise…. Rather than seeking meaningful public input from the outset, your Administration has allowed the bulk of the public debate to be based upon, at best, hearsay and speculation. Yet, ACTA is a trade agreement setting out a range of new international rules governing intellectual property; as the G-8 called it, a “new international framework.” It is not (the claims of the USTR notwithstanding) related in any way to any standard definition of “national security” or any other interest of the United States similarly pressing or sensitive. The Administration’s determination to hide ACTA from the public creates the impression that ACTA is precisely the kind of backroom special interest deal – undertaken in this case on behalf of a narrow group of U.S. content producers, and without meaningful input from the American public – that you have so often publicly opposed.

Second, the Administration has stated that ACTA will be negotiated and implemented not as a treaty, but as a sole executive agreement. We believe that this course may be unlawful, and it is certainly unwise.

Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA’s provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions.[1] Other sections lock in substantive law that may not be well-adapted to the present context, much less the future.[2] And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate.[3] The agreement is also likely to affect courts’ interpretation of U.S. law.[4]

The use of a sole executive agreement for ACTA appears unconstitutional.[5] The President may only make sole executive agreements that are within his independent constitutional authority.[6] The President has no independent constitutional authority over intellectual property or communications policy, the core subjects of ACTA. 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.[7] ACTA should not be pursued further without congressional oversight and a meaningful opportunity for public debate.

The USTR has insisted that ACTA’s provisions are merely procedural and only about enforcing existing rights. These assertions are simply false. Nearly 100 international intellectual property experts from six continents gathered in Washington, DC in June, 2010 to analyze the potential public interest impacts of the officially released text. Those experts – joined by over 650 other experts and organizations – found that “the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.”


Academics and other neutral intellectual property experts have not had time to sufficiently analyze the current text and are unlikely to do so as long as there is no open public forum to submit such analysis in a meaningful process.


Finally, we are concerned that the purpose that animates ACTA is being deliberately misrepresented to the American people. The treaty is named the “Anti-Counterfeiting Trade Agreement”. But it has little to do with counterfeiting or controlling the international trade in counterfeit goods.


Our conclusion is simple: Any agreement of this scope and consequence must be based on a broad and meaningful consultative process, in public, on the record and with open on-going access to proposed negotiating text and must reflect a full range of public interest concerns. For the reasons detailed above, the ACTA negotiations fail to meet these standards.

Indeed, just as most copyright lawyers actually oppose SOPA and PIPA, the secrecy and dishonest end-run which has characterized the ACTA process mean that the main U.S. and international intellectual property organizations have had no input into the drafting of ACTA.

We Can Still Stop It

While ACTA has already been signed by dozens of countries, it will not go into effect unless the European Union parliament ratifies it in a couple of months.

We can still stop it. And see this and this.

* Note: Many others have given substantive critiques of ACTA. See this, this, this, this, this, this, this and this.

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About George Washington

George Washington is the head writer at Washington’s Blog. A busy professional and former adjunct professor, George’s insatiable curiousity causes him to write on a wide variety of topics, including economics, finance, the environment and politics. For further details, ask Keith Alexander…


  1. Nathan Aschbacher

    I’m not sure that it matters if “we stop it.” Obviously the law is a de facto formality to implementing political prerogatives. Much in the same way all the proper channels and procedures are supposed to be.

    If the Executive is content to flout proper procedures in the establishment of the law (which it is) and the Executive is content to act extrajudicially (which it is), then the whether or not the law/treaty gets established is really only superficially relevant.

    The Executive will see its prerogatives advanced irrespective of ACTA, just like it did when it seized MegaUpload despite the temporary rebuke of SOPA/PIPA.

    1. LeonovaBalletRusse

      It was just a matter of time before we saw the true intent of the Fuehrer via his signing statements. Has Obama become the Absolute Despot now?

    2. Hugo Stiglitz

      That was pretty much my reaction as well. In a nation where rule of law is meaningless, at least among the ruling class, what difference does it make what laws are passed or not?
      When it is clear to the ruled that the rulers are above the law, how long can it be before the disregard for law becomes more widespread, and encompasses all laws? When the top law enforcers become lawbreakers, why would anyone have any respect for them except out of fear?

    3. Alex Levin

      at least when they took down megaupload they had to go through the court system. what’s disgusting is that countries are extraditing copyright violators to the US.

  2. Middle Seaman

    It may be too late, but the president clearly breaks the law by enacting ACTA. The impeachment process is congress’ way to deal with this violation or threatening impeachment may stop the president.

    1. LeonovaBalletRusse

      There is a fly in the ointment: Darryl Issa of *Golden Sacks* (twin of *JPMorgue*). Is it a shell game? Watch Issa’s hands and check his sleeves. Who’s his shill, moreover?

  3. rjs

    quoting: If you have been musing about the misguided policies in SOPA and PIPA that generated protests, what do you make of misguided international governance of the Internet? This article in Politico raises an interesting possibility, that the ITU will assert itself into Internet governance, ostensibly to coordinate security and taxation across countries. As is well known, numerous countries would like to see this happen because it allows them to indirectly use the ITU to control pieces of the Internet.

    Of course, there is a key difference. The ITU is one of those international organizations that does not have to answer to anybody in particular. None of its decision makers have to stand for reelection. None of the leaders have much to fear from any web-based protest.

    I do not know about you, but if the ITU sticks its nose into Internet governance I do not see this turning out well.

    1. KelvarOlvar

      This is the inevitable offshoot of freedom people. Everyone likes it until other people get it and use that freedom to take away your no longer functioning method of profits. So the music and movie industry is no longer the mega profitable multi-million dollar fortune creating monster it once was are we really going to ban a legitimate service to bail out big holly wood big bank style. Actors and singers and performers may be cursed to go back to more average wages.

      1. Birch

        Most actors, singers and performers would absolutely love to get up to ‘average wages’, and many would love to get any wages at all. Plenty would be happy just to not have to pay to play anymore. The degree to which musician wages have plummeted over the past couple generations is truely shocking. I can literally make better money busking at the liquor store on a Friday than gigging at most bars or established performance venues in town.

        MegaUpload, apparently, wanted to help to change this with its Megabox service, which would’ve sold recordings directly for performers (no agent middle-men) and given 90% of the proceeds to the artists. How they are accused of copyright infringement while Disney continues to rack in the cash for Alice in Wonderland and Whinney the Pooh that it never paid rights for is a subtle example of Double Think.

  4. Knut

    There was a huge demonstration in Warsaw last week against the treaty, which was approved by the Polish parliament.

  5. Aquifer

    Frankly I am a bit taken aback by the “oh, well, too bad” attitude i sees here

    I just called both my Senators’ offices and asked them what they felt about this – “well they haven’t spoken about it” I then expressed my opinion that this was SOPA through the back door and that I was not happy that MY repre4sentatives were just rolling over and letting the Pres usurp more of their prerogatives – that this was a treaty and they should have a say. I think we all need to do that – everyone thought SOPA and PIPA were done deals too, until “the people” had their say. This tendency too many of us have to just roll over and say “see, they are all crooks,” and do nothing goes a long way to explaining why we ARE governed by crooks ..

    1. Nathan Aschbacher

      Calling your Congressperson won’t do anything. That’s why I’m not bothering. The only reason SOPA/PIPA were opposed somewhat successfully (they’ll come back in bits and pieces as riders to other things) was because of massive opposition by interests like Google. Moreover it didn’t matter, the worst parts of SOPA/PIPA were exercised extrajudicially anyway.

      Unless you’re Google, and maybe you are I don’t know, then you functionally don’t matter to your representatives in Congress. Sorry.

      The problem I have is with people who still seem to think these matters are all about taking back the laws. The trouble is that when the Executive isn’t constrained by the laws, then your focus should be on taking back the Executive. The office of the President is wildly out of control in the U.S. We’re going to have to find a way to constrain it, and it’s not going to be through Congress (which has been gleefully abdicating its authority to the White House for several decades).

      1. LeonovaBalletRusse

        re Calling your Congressperson — akin to calling on Chinese eunuchs to rise up and face the Empress fair and square before the Revolution.

        Bernardo Bertolucci: “The Last Emperor” — a masterpiece in film.

  6. Paul Walker

    Like trite considerations as considering constitutional boundaries concern a unitary executive of either part of the unitary-party. If folks don’t like it the can try and prove standing before the federal bar and with any luck may be able to achieve “justice” a bit quicker than Gordon Hirabayashi.

    Sheesh, the SCOTUS finally managed to address GPS tracking devices planted on cars. Anyone really think such a venue, where its sitting members great grandchildren know/care more about the issues facing it than its members do will actually do anything to address the demolition of the constitution?

    Congressman Issa and Senator Wyden are simply reduced emasculated steers, a huffin and a puffin at the brick slaughterhouse as they are led to a BBQ.

      1. LeonovaBalletRusse

        LS, take the prize. Washington’s Blog does make the connection between two themes: ACTA and General Smedley Butler on the conspirators (Bush, Heinz, Good Year, etc.).

  7. salesanalyst

    It is becoming more and more obvious to me that democracy is taking the back seat to commercial interests in nearly all situations over the last decade or so. Everything changed after 9/11 is a much broader statement then we could have ever imagined during the Bush years. How sad.

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