Published by LawTechie - January 24, 2012 - LawTechie

Internet Law In the wake of the SOPA/PIPA outrage in the US individuals fighting for Internet freedom have turned a watchful eye to the Anti-Counterfeiting Trade Agreement (hereon referred to as “ACTA”). ACTA creates a new international legal framework in the never-ending quest for intellectual property protection. Moreover, according to the Office of the US Trade Representative:

The Anti-Counterfeiting Trade Agreement (ACTA) is a groundbreaking initiative by key trading partners to strengthen the international legal framework for effectively combating global proliferation of commercial-scale counterfeiting and piracy. In addition to calling for strong legal frameworks, the agreement also includes innovative provisions to deepen international cooperation and to promote strong intellectual property rights (IPR) enforcement practices. Together, these provisions will help to support American jobs in innovative and creative industries against intellectual property theft.

Parties Involved

On October 1, 2011, the United States, Canada, Japan, New Zealand, Singapore, New Zealand, Korea, and Australia signed ACTA in Tokyo. However, other negotiating parties such as the European Union, Switzerland and Mexico have opted to wait on the ratification of this agreement.


Is it a treaty or is it an executive agreement? ACTA was introduced during the Bush Administration and subsequently pursued by the Obama Administration. The White House insists that ACTA is an executive agreement therefore, no questions as to the constitutional validity should be entertained. However, critics in Congress have voiced their concern that ACTA could be interpreted as a treaty masquerading as an agreement. Moreover, the European Union has referred to the ACTA as a binding treaty. The effect of the aforesaid could mean ACTA should not have been approved in the manner it was in the US.

The European Union has voiced a myriad of concerns throughout the amending process which suggested that ACTA is ambiguous and possibly does not reconcile with EU directives. According to the US Trade Representative EU officials were present for the signing ceremony on October 1, 2011, they did not sign the agreement. Nevertheless, the EU seems to be on the path of ratification due to influence of other partners (US). Poland has played a key-role in the campaign for ACTA but with the negative response to SOPA many protesters have been attacking Poland’s support for ACTA.

Protesters primarily illustrate apprehension over the elusive nature, validity and censorship issues that evolve out of ACTA. Contributor E.D. Cain of Forbes stated:

• ACTA spans virtually all of the developed world, threatening the freedom of the internet as well as access to medication and food. The threat is every bit as real for those countries not involved in the process as the signatories themselves.
• ACTA has already been signed by many countries including the US, but requires ratification in the EU parliament and the US Senate.
• The entire monstrosity has been negotiated behind closed doors and kept secret from the public. Technocrats, beholden to the deep pockets of the entertainment lobby, have masked the agreement behind the misnomer of “anti-counterfeiting” when in fact it goes much, much further.

The US has already signed ACTA and post-SOPA the vast amount of STOP ACTA type petitions seem to be spreading like wildfire. The EU participation in this agreement could make or break the integrity of the framework. However, for us Americans I think it is important to question the constitutional validity of such “agreements” without the participation of the Senate.

Andrew Moshirnia of the Citizen Media Law Project makes a compelling analysis on the executive agreement:

When lobbyists and the USTR insist that ACTA won’t change laws very much, I feel like I’m taking crazy pills. Of course it changes the law, why else would it need to be negotiated in secret and why else would it attract so much industry attention and support….

Executive agreements essentially give the President a means to unilaterally control the foreign relations of the United States. Presidents have historically used accords with foreign nations to conclude international pacts without giving the Senate a meaningful opportunity to interfere. See The Destroyers for Bases Deal, Yalta, The Vietnam Peace Agreement of 1973. The constitutionality of this tool is somewhat dubious: the Constitution does not mention executive agreements, nor do the framers discuss the concept in either the constitutional convention or the Federalist Papers. The judiciary has defended the use of congressional-executive agreements*, provided that these do not conflict with the Constitution. See Reid v. Covert, 354 U.S. 1 (1957). But hopefully the Court would be more likely to strike down unilateral Executive Agreements. But see U.S. v. Pink 315 U. S. 203, 229 (1942). However, the prospect of an executive agreement is rarely an issue because the mere presence of an existing agreement places an incredible amount of pressure on Congress to go along with the deal.

There have been some congressional efforts to restrain the use of executive agreements and to reestablish the primacy of Congress’ Treaty Power. In 1954, the Bricker and George Amendments, which would have restricted the president’s power to craft executive agreements, failed to clear the Senate, the latter by only a single vote.

While the President has the power to utilize executive agreements, he is not to keep them secret. Eighteen years after the Bricker and George amendments barely failed, and only a few years after the discovery of covert executive agreements with Laos and South Korea, Congress passed the Case Act of 1972. The Act requires the Executive to disclose within 60 days the text of “any international agreement” in which the United States is involved. But this does little to redress the problem of unilateral executive agreements because presidents routinely ignore the statute.

Moshirnia contends due to the unpopularity of ACTA this could mean another interpretation of the validity of executive agreements:

So to sum up: I am terrified that ACTA is going to be as monstrous as I believe it to be and that the United States will join the agreement by executive fiat. But maybe some good will come out of this–maybe the deep unpopularity of ACTA (trust me, people want their Internet) will force Congress to finally reassert its long neglected Treaty Power and curtail the use of executive agreements. While the Congress has deferred to the President in matters of war, there is no need to maintain such deference if ACTA empowers national ISPs to sever domestic Internet connections. None of this worrying would be necessary if the administration would simply (1) make the ACTA negotiations public, and (2) agree to submit ACTA to the Senate for formal ratification as a treaty. The longer this remains secret, the more users will worry.

The full Anti-Counterfeiting Agreement can be found at: HERE

Guest author Michelle Addison is a law clerk on Tim’s internet law team at Handal & Morofsky, LLC. She is a graduate of the Queen Mary University of London School of Law (LLB Law, Honors), and is completing her US-based LLM at the Benjamin N. Cardozo School of Law.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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