Will Obama Sign the Anti-Counterfeiting Trade Agreement (ACTA) as an "Executive Agreement" bypassing the Senate?

Let me get this straight -- Obama and his people are saying this is not a treaty so he can sign an 'executive agreement,' but the Europeans consider it a binding treaty which would require ratification by the Senate.  That doesn't seem hard to figure out -- Obama is not legally allowed to sign an 'executive agreement' when it is a treaty.  What part of that doesn't he understand?  Could it be the fact that he promised he would sign it and doesn't have the nerve to tell the Europeans that the Senate has to ratify the treaty.  Without Senate ratification, his signature is worthless.

What else is Obama doing behind our backs that it takes a tech site to report because the media chooses to ignore?  Obama seems to think the Constitution is just a piece of paper he can ignore at will!

If ACTA Is Approved In The US, It May Open The Door For The President To Regularly Ignore Congress On International Agreements 

from the bad-news dept of Tech Dirt

On of the sneakier parts of the ACTA is that the White House has insisted from the beginning that the document is not a binding treaty. Instead, it insists that ACTA is merely an "executive agreement." Of course, the only real difference is that an executive agreement doesn't require the Senate to ratify it. Basically, the US is calling it an executive agreement so that the administration can sign on without any oversight or scrutiny on the treaty. The Europeans, in the meantime, never got the "ix-nay on the inding-bay eaty-tray" notice from the US folks, and have been happily declaring ACTA a binding treaty as it clearly is.  

However, many legal experts have noted that this raises serious constitutional questions, as the Constitution simply does not allow this kind of agreement to be signed without Senate approval. Amusingly, Senator Biden -- back during the previous administration -- was one of the leading voices in trying to prevent President Bush from signing an "executive agreement" with Russia, without getting Senate approval. One wonders if he's magically changed his mind.

However, more and more people are getting concerned about this breach of the Constitution. James Love points us to a new paper at the American Society for International Law by Oona A. Hathaway and Amy Kapczynski, which worries about the precedent this will set if Obama signs it as an executive agreement and bypasses the Senate entirely.

No comparable agreement has been concluded in this way. Thus if concluded as a sole executive agreement, it would represent a significant expansion of the scope of such agreements. As a result, it could pave the way for more extensive use of sole executive agreements in the future. That, in turn, could have implications for the nature of democratic control over international legal agreements concluded by the United States, as well as the legitimacy of these agreements both at home and abroad.

Furthermore, the report notes that it does not seem Constitutional for the President to sign such a document as an executive agreement. The only things that can be signed as an executive agreement are things that are solely under the President's mandate. But intellectual property laws are clearly afforded to Congress and not the President under the Constitution -- meaning that he has no authority to sign this document without it first being approved by the Senate. The report notes that President Bush also tried to expand executive agreements, and ACTA would be a massive expansion in what could be covered under such agreements, taking away tremendous authority and oversight from Congress.

Setting a precedent for more expansive use of sole executive agreements has consequences not only for intellectual property law, but for any area in which an international agreement may be concluded—which is to say, nearly any area of law. International law now reaches into almost every aspect of our day-to-day lives. The possibility that such legal commitments could be made by the President without the input, much less approval, of Congress or the public raises serious questions about the potential of these agreements to undermine democratic lawmaking writ large 

This is pretty troubling for a variety of different reasons, and it seems like Congress itself should be pretty concerned about this attempt to take away its oversight on international agreements.

The ACTA Internet Chapter: Putting the Pieces Together -- Internet Agreement

How is this treaty going to affect the Internet and people that give their opinions on blogs is a question that is on the mindd of the Tech Community. What bothers us is this President believes that a Treaty should be the law of the land when it is signed and the Constitution ignored. No Treaty is enforceable until Senate ratification which 2/3rds of the Senators voting for the treaty. This is something that cannot be changed by Obama and the Democrats but it doesn't seem to bother them.

We have included several stories that detail what is happening as chances of seeing it on the broadcast news are slim to none. This could affect us all but the media once again have their heads buried in the sand. Is today's mainstream media (what a misnomer) so entrenched with Obama that he and his Administration can say and do anything and the media will spin?

The ACTA Internet Chapter: Putting the Pieces Together
Tuesday November 03, 2009

The Anti-Counterfeiting Trade Agreement negotiations continue in a few hours as Seoul, Korea plays host to the latest round of talks. The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement [UPDATE 11/4: Post on discussions for day two of ACTA talks, including the criminal enforcement provisions]. The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty). Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

If accurate (and these provisions are consistent with the U.S. approach for the past few years in bilateral trade negotiations) the combined effect of these provisions would to be to dramatically reshape Canadian copyright law and to eliminate sovereign choice on domestic copyright policy. Having just concluded a national copyright consultation, these issues were at the heart of thousands of submissions. If Canada agrees to these ACTA terms, flexibility in WIPO implementation (as envisioned by the treaty) would be lost and Canada would be forced to implement a host of new reforms (this is precisely what U.S. lobbyists have said they would like to see happen). In other words, the very notion of a made-in-Canada approach to copyright would be gone.

Excerpt: See Full Article at Michaelgeist.ca

We have more details that have leaked and it is does not look -- what are their real motives with this treaty?

Cory Doctorow

POSTED AT 2:13 PM November 3, 2009

Secret copyright treaty leaks. It's bad. Very bad.

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama's administration refused to disclose due to "national security" concerns, has leaked. It's bad. It says:

* That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.

* That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet -- and hence to civic participation, health information, education, communications, and their means of earning a living -- if one member is accused of copyright infringement, without access to a trial or counsel.

* That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

* Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

Source: http://www.boingboing.net/2009/11/03/secret-copyright-tre.html

Then we have find out negotiations this week will focus on enforcement in the digital environment. What type of enforcement are they talking about? We do not have a good feeling about any thing involving enforcement that this Administration is involved. This is all looking worse and worse.

November 3rd, 2009
Leaked ACTA Internet Provisions: Three Strikes and a Global DMCA
Commentary by Gwen Hinze

Negotiations on the highly controversial Anti-Counterfeiting Trade Agreement start in a few hours in Seoul, South Korea. This week's closed negotiations will focus on "enforcement in the digital environment." Negotiators will be discussing the Internet provisions drafted by the US government. No text has been officially released but as Professor Michael Geist and IDG are reporting, leaks have surfaced. The leaks confirm everything that we feared about the secret ACTA negotiations. The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws.

As expected, the Internet provisions will go beyond existing international treaty obligations and follow the language of Article 18.10.30 of the recent U.S. – South Korea Free Trade Agreement. We see three points of concern.

First, according to the leaks, ACTA member countries will be required to provide for third-party (Internet Intermediary) liability. This is not required by any of the major international IP treaties – not by the 1994 Trade Related Aspects of IP agreement, nor the WIPO Copyright and WIPO Performances and Phonograms Treaty. However, US copyright owners have long sought this. (For instance, see page 19 of the Industry Functional Advisory Committee report on the 2003 US- Singapore Free Trade Agreement noting the need for introducing a system of ISP liability). (Previously available at http://www.ustr.gov/new/fta/Singapore/advisor_reports.htm.)

Second and more importantly, ACTA will include some limitations on Internet Intermediary liability. Many ACTA negotiating countries already have these regimes in place: the US, EU, Australia, Japan, South Korea. To get the benefit of the ACTA safe harbors, Internet intermediaries will need to follow notice and takedown regimes, and put in place policies to deter unauthorized storage and transmission of allegedly copyright infringing content.

Excerpt: See Full Article at EFF.Org

Last but not least we have the comments from Lawfont.com out of Australia:

Geist on ACTA

Geist has a new report on ACTA (above), with some discussion of the potential inclusions in an internet text. Nothing that would surprise an Australian, given our experience with the AUSFTA.

I do, strongly, agree with Michael here, when he notes that:

"On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions."

From an Australian perspective, I suspect that the temptation for negotiators will be to say that since we are already committed to such rules in the AUSFTA, there is ‘no harm’ in signing up to similar ACTA terms. I think that would be a serious mistake. When Australia signed to such terms in AUSFTA, it did so in a trade deal, where there were other ‘benefits’ (however illusory some might have been). And it retains the freedom to step away from the AUSFTA at some future point if the costs outweigh the benefits. Signing up to such terms in an ACTA would be agreeing that these are to be general international standards: removing any remaining flexibility we have and giving a whole new set of people the right to complain if we want to resile.

Source: Lawfont.com

No one knows for sure what this all means but the lack of information and this being done in secret does not bode well for most people on the Internet that disagree with the Obama Administration. We believe they will use anything they can to shut down dissent.