Law Professors Question the Constitutionality of ACTA

Things are becoming not so bright for the pervasive, yet secretive Anti-Counterfeiting Trade Agreement (ACTA). Now, there is a growing force that suggests that ACTA may be technically unconstitutional in the US thanks in part due to legal procedures not being followed according to 50 US law professors.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

We’ve been following ACTA for years. While ACTA has been seen as an unstoppable train for some, new barriers seem to be threatening to derail the agreement completely. ACTA is a secretive trade agreement that would, among other things, put in place a global DMCA, further criminalize copyright infringement and encourage border security to search for copyright infringing content should they find a “digital storage device”. Negotiators have hot-footed it around the world, holding multiple rounds of negotiation to hammer out a final agreement that would be sent to various countries for the purposes of ratification.

Even though ACTA is seen by many as one of the biggest threats to the internet as a whole, the threat seems to be fading further and further into the category of unlikely. Earlier this week, we reported that the agreement was officially sent to the European Court of Justice to determine if it violates basic fundamental rights. This is amidst talk that the European Union is likely going to be voting it down. It may seem like one of the biggest blows to ACTA, but it may not be the only big blow it has been dealt with this week.

The Electronic Frontier Foundation is reporting that 50 US law professors have sent a letter to politicians urging them to reject ACTA on constitutional grounds. The letter takes issue with the suggestion that all ACTA needs in the US is a signature from the president to become law. The letter explains that this is not legally possible stating the following reasons:

First, the plain language of Section 8113(a) of the PRO-IP Act[1] does not authorize USTR to bind the U.S. to any international agreement. Rather, the section merely describes the purposes of a “Joint Strategic Plan against counterfeiting and infringement,” to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). The purposes of the Plan include “working with other countries to establish international standards and policies for the enforcement of intellectual property rights.” Nowhere in Section 8113 does the PRO-IP Act mention the negotiation of international agreements. Rather, subsection (f), which describes specific means for “enhancing enforcement efforts of foreign governments,” requires only “programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement.”[2] Read in its context, the language cited by Koh as justifying ACTA does no more than require a multi-agency plan to provide technical assistance to foreign governments. Indeed, the cited passage is not addressed to USTR.

Second, the PRO-IP Act cannot be an ex ante authorization for ACTA because it was not temporally ex ante. The ACTA negotiation began in 2007. PRO-IP was not passed until 2008, and was passed at a time Congress was being told that ACTA would be entered as a Sole-Executive Agreement — requiring no Congressional approval at all. The administration did not seek, and Congress has not given, ex ante authorization to bind the U.S. to ACTA.

We thus conclude that 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.

Remedying this state of affairs is uniquely within Congress’s province. Congress, and specifically the Senate, as the Constitutionally recognized chamber with responsibilities for the approval of treaties, should secure from the Administration a public pledge to send ACTA to the Senate as a treaty, or to the Congress as an ex post Congressional-Executive Agreement. Absent a pledge to this effect, we encourage the Committee to hold hearings and to pass legislation that would prevent the United States from binding itself to ACTA without express Congressional consent.

In other words, it was a procedural error that makes ACTA unconstitutional if the president merely signs off on it to make it law. We’re not talking about the contents of ACTA, but rather, the process of implementation which could very well be unconstitutional if the president merely signs it.

The EFF has also questioned whether or not the USTR even has authority to enter in to the ACTA negotiations on the US’s behalf. The EFF also asked the State Department whether or not the US signed a memorandum for ACTA. Here’s part of the report from the EFF:

We have now received the State Department’s response. It’s short: the State Department has not created a Circular 175 memorandum and accompanying Memorandum of Law for ACTA:

“Based on the subject matter of your request, we consulted with subject matter experts in the Office of the Legal Advisor. These officials advised us that no Circular 175 Memorandum or Memorandum of Law were ever issued for the Anti-Counterfeiting Trade Agreement. The officials also told us that USTR has lead within the U.S. Government for this issue.”

This suggests that ACTA was not submitted to the normal State Department review process to determine its constitutionality before it was signed by the Deputy Trade Ambassador.

Since the State Department’s Legal Office must decide whether a proposed instrument is an “international agreement” for this process, it’s possible that the State Department was consulted but decided that ACTA was not an “international agreement”. If so, where is the Memorandum explaining why ACTA should not be considered an “international agreement” despite all appearances to the contrary?

Given that, the FOIA response appears to confirm what we’ve long suspected — that USTR was acting on a folly when it negotiated and signed ACTA, in the absence of Trade Promotion Authority which had expired on July 1, 2007, and without consulting the US government agency that is entrusted with ensuring that international agreements abide by appropriate constitutional process.

Whether or not ACTA can actually be implemented into US law remains to be seen.

Looking at what has been happening in a broader and retrospective sense, this development could explain why major entertainment corporations are now, for example, simply trying to enter into agreements with ISPs to disconnect file-sharers or block websites. It’s possible they saw a weakness like this in these agreements and scrambled to find a different way to implement site blocking and disconnections.

If that’s the case, then this is quite a positive development for those fighting for internet freedom.

Drew Wilson on Twitter: @icecube85 and Google+.

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