EFF analyzes the legal creepiness of ACTA, the secret copyright treaty

The Electronic Frontier Foundation's international policy crimefighting duo, Eddan Katz and Gwen Hinze, have published a scholarly article analyzing the secret Anti-Counterfeiting Trade Agreement in light of US law and policy. Called "The Impact of ACTA on the Knowledge Economy," it was recently published in the Yale Journal of International Law, and constitutes a fantastic, reference-heavy resource for understanding just how creepy it is that the Obama administration is sneaking around behind Congress's back (not to mention the backs of the American public) to create a privacy-invading, internet-breaking trade agreement that the US will be bound to bring into its law.

In brief, the ACTA process has been deliberately more secretive than customary practices in international decision-making bodies to evade the debates about intellectual property (IP) at established multilateral institutions. The Office of the USTR has chosen to negotiate ACTA as a sole executive agreement. Because of a loophole in democratic accountability on sole executive agreements, the Office of the USTR can sign off on an IP Enforcement agenda without any formal congressional involvement at all. But the negotiations do not have to be secret, and the sole executive agreement process does have mechanisms for oversight: they have not been used in ACTA, but can and should be.

The excuse for using sole executive agreements is that ACTA will be fully respectful of U.S. law. But the constraint of coloring within the lines of US law, as one anonymous trade official described it, is a fragile linchpin upon which the weight of public trust and democratic legitimacy is bearing down.

Stopping the ACTA Juggernaut

• [cmjersey]

  I recently attended your book signing in NYC for Makers and had the opportunity to talk to you about what we can do to strive for greater transparency and accountability regarding the ACTA treaty. Your advice was to check out the EFF’s work on the matter and help their efforts anyway I can. I just read the essay captioned above and found it most alarming. I immediately sent their recommended letter to my congressmen (I also sent a letter to Google’s CEO asking him to ensure the privacy of his potential ebook subscribers as it was a part of the EFF’s ‘Call to Action’). Both matters reminded me of your response to a question you were asked at the book signing regarding the benign/malignant effects of data collection of private information in the digital age, ie the first number of your credit card being fairly benign information. The total record of traffic through your IP address made available to government and corporate interests alike – not so benign. Lets hope enough people in this country hear the call to get motivated and take action for the sake of our collective futures! Keep up the great posting!

• [Anonymous]

  Article 2 Section 2: The President has power “to make Treaties, provided two thirds of the Senators present concur;”

  captcha: “Senate bendig”

• [Anonymous]

  Actually I think your incorrect. At one point or another in our history, one of the official powers of the executive branch of government that was given by the founders was the exclusive right to deal with international affairs of all kinds, criminal and civil.

  With that said congress may not have the authority to stop this until it is passed and then create law that revokes aspects of the law we the people find offensive.

  Again, technology will win. They are driving all of us, even the honest ones who purchase all their content to adopt military grade security software to maintain our privacy.

  Do what you have to do to keep your private business, private.

• [Anonymous]

  “…that the US will be bound to bring into its law.”

  No matter what was finalized in these treaty negotiations, congress still has to ratify it. Given with the current bunch of idiots this is not a no brainer, but still there is a chance to fight it.