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1/31/12 We Have Every Right to Be Furious About ACTA | Electronic Frontier Found


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If theres one thing that encapsulates whats wrong with the way government functions today,
ACTA is it. You wouldnt know it from the name, but the Anti-Counterfeiting Trade Agreement
is a plurilateral agreement designed to broaden and extend existing intellectual property (IP)
enforcement laws to the Internet. While it was only negotiated between a few countries, it has
global consequences. First because it will create new rules for the Internet, and second,
because its standards will be applied to other countries through the U.S.s annual Special 301
process. Negotiated in secret, ACTA bypassed checks and balances of existing international IP
norm-setting bodies, without any meaningful input from national parliaments, policymakers,
or their citizens. Worse still, the agreement creates a new global institution, an "ACTA
Committee" to oversee its implementation and interpretation that will be made up of unelected
members with no legal obligation to be transparent in their proceedings. Both in substance
and in process, ACTA embodies an outdated top-down, arbitrary approach to government that
is out of step with modern notions of participatory democracy.
The EU and 22 of its 27 member states signed ACTA yesterday in Tokyo. This news is neither
momentous nor surprising. This is but the latest step in more than three years of non-
transparent negotiations. In December, the Council of the European Unionone of the
European Unions two legislative bodies, composed of executives from the 27 EU member
statesadopted ACTA during a completely unrelated meeting on agriculture and fisheries. Of
course, this is not the end of the story in the EU. For ACTA to be adopted as EU law, the
European Parliament has to vote on whether to accept or reject it.
In the U.S., there are growing concerns about the constitutionality of negotiating ACTA as a
sole executive agreement. This is not just a semantic argument. If ACTA were categorized as
a treaty, it would have to be ratified by the Senate. But the USTR and the Administration have
consistently maintained that ACTA is a sole executive agreement negotiated under the
Presidents power. On that theory, it does not need Congressional approval and thus ACTA
already became binding on the US government when Ambassador Ron Kirk signed it last
But leading US Constitutional Scholars disagree. Professors Jack Goldsmith and Larry Lessig,
questioned the Constitutionality of the executive agreement classification in 2010:
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.
(And by the way, we agree [pdf].)
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1/31/12 We Have Every Right to Be Furious About ACTA | Electronic Frontier Found
Senator Ron Wyden has been asking these questions for years, first demanding an explanation
from USTR ambassador Ron Kirk, President Obama, and now the administrations top
international law expert Harold Koh. The distinction between executive agreement and treaty
should not be lost on this administration: as a Senator, Vice President Joe Biden used the same
argument to require the Bush administration to seek Senate approval for an arms reduction
Public interest groups and informed politicians have long lamented these problems with ACTA.
But the impact of dubious backroom law-drafting is getting fresh attention in light of the
powerful global opposition movement that has emerged out of last weeks Internet blackout
protests. Activists and netizens all around the world have woken up to the dangers of
overbroad enforcement law proposals drafted by monopoly industry lobbyists, and rushed into
law through strategic lobbying by the same corporate interests that backed SOPA and PIPA.
Tens of thousands are protesting in the streets in Poland as their ambassador signed the
agreement in Tokyo. The EU Parliaments website and others have come under attack for their
involvement in these laws. The Member of the European Parliament who was appointed to be
the rapporteur for ACTA in the European Parliament, Kader Arif, quit yesterday in protest. In a
statement he 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
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.
We couldnt have said it better ourselves. ACTA may have been signed by public officials, but
its crystal clear that they are not representing the public interest.
It is now up to the collective will of the public to decide what to do next, and for individuals to
ask themselves what they want their government to look like. Do you believe in democracy? Do
you believe that laws should be made to reflect our collective best interests, formulated
through an open transparent process? One that allows everyone, from experts to civil society
members, to analyze, question and probe an agreement that will lead to laws that will impact
potentially billions of lives? If we dont do anything now, this agreement is going to crawl itself
into power. With the future at stake like this, its never too late to fight.
If you live in Europe, follow these links to learn how you can take immediate action and stay
informed on the latest updates:
La Quadrature du Net (@laquadrature): How to Act Against ACTA
European Digital Rights (@EDRi_org): Stop ACTA!
Open Rights Group (@OpenRightsGroup): ACTA: signed, not yet sealed - now it's up to us
Foundation for a Free Information Infrastructure (@FFII): ACTA Blog
Patent Busting
Surveillance Self-Defense
Takedown Hall of Shame
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1/31/12 We Have Every Right to Be Furious About ACTA | Electronic Frontier Found
nternatIonaI AntI-CounterIeItIng Trade Agreement
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For those In the U.S., you can demonstrate your opposItIon to the dubIous decIsIon to
negotIate ACTA as a soIe executIve agreement to bypass proper congressIonaI revIew by
sIgnIng thIs petItIon on the websIte, demandIng the AdmInIstratIon submIt
ACTA to the Senate Ior approvaI.
EFF wIII contInue to monItor ACTA's gIobaI ImpIementatIon and watch Ior eIIorts to use ACTA
to broaden US enIorcement powers.
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UnIted States, AustraIIa, Canada, ]apan, Morocco, New ZeaIand, SIngapore, and South Korea
(See aIso here [pdI] and here).
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