ACTA Raising Serious Constitutional Questions

from the executive-agreements? dept

Fri, Mar 26th 2010 3:57am — Mike Masnick

One of the talking points from ACTA supporters was always that it wasn't a "treaty" but an "executive agreement," claiming that this meant something different. However, as we discussed back in February, this is misleading. Executive agreements are generally a way to sneak treaties through without Congressional approval. That post linked to a great legal analysis by Andrew Moshirnia for the Citizen Media Law Project -- but some ACTA supporters in our comments claimed that since Moshirnia was "just a second year law student," his arguments were meaningless (of course, this commenter also ignored all of the legal citations Moshirnia raised (funny, that...)).

But it appears that some law professors are also pretty concerned about trying to sneak ACTA through by calling it an executive agreement. Harvard law professors Jack Goldsmith and Larry Lessig have penned an opinion piece for the Washington Post where they lay out an explanation for why calling ACTA an executive agreement may not be Constitutional:

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president's own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied.

Congress should follow Biden's lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

At what point does President Obama begin to regret his blind support of ACTA?

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Filed Under: acta, constitution, executive agreement, jack goldsmith, larry lessig

25 Comments

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IANAL, 26 Mar 2010 @ 4:50am

Clearly, the executive agreement should be abolished
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Sneeje (profile), 26 Mar 2010 @ 4:59am

Re: ACTA
Mmmmmmmm... spammity spam, wonderful spam!
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Mike Masnick (profile), 26 Mar 2010 @ 5:07am

Re: Re: ACTA
Spam deleted...
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Alex Bowles (profile), 26 Mar 2010 @ 5:35am

http://www.signalflight.com
The irony, of course, is that Biden is now trying to argue the opposite side of the same argument - after all, he's ACTA's primary champion in the White House, and has anchored the Executive lead on the provisions it contains. As such, he's doing what he specifically argued against - on fundamental Constitutional grounds, no less.

That's not the kind of change we can believe in.
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Ima Fish (profile), 26 Mar 2010 @ 5:48am

The really scary thing about the ACTA to me is that it will create a parallel WIPO organization to ensure enforcement.

Why is that bad? In the US Copyrights and patents are government granted monopolies. They are not property rights and they exist solely through the grace of government.

Thus, there is no right that copyrights should last past the death of the author. There is no right regarding the performance of copyrighted music. There is no right that digital protections must be enforced.

Sure our laws were changed to enlarge the government granted monopolies to include such activities. But they are not inherent rights. Our government can change those laws without violating anyone's rights.

To contrast a bit, real property rights are a part of those unalienable rights you hear about. Property rights are not given by the government, they exist independently from the government and are are protected by the government.

So here's the real scary problem with the ACTA. It takes monopolies granted by our government and gives them to an unelected foreign body to enforce and expand upon. Our government will no longer be free to limit those government granted monopolies. Forevermore, imaginary property will become unalienable property.
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robin, 26 Mar 2010 @ 6:02am

End Run
the whole thing is an end run around the constitution, from beginning to end. to wit:

chapter 2, section 4, article 2.17, paragraph 3, option 1 wants to condition any safe harbor of service providers on:

on the online service provider's monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring

which guts and changes the dmca and the cda

but wait, there's worse!!

chapter 2, section 4, article 2.17, paragraph 3, option 3ter:

Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identify of the relevant subscriber.

which is a direct assault on american due process and any number of privacy and information protection laws.
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Ima Fish (profile), 26 Mar 2010 @ 6:04am

"At what point does President Obama begin to regret his blind support of ACTA?"

When the checks start bouncing?
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haiku, 26 Mar 2010 @ 6:16am

ACTA
At what point does President Obama begin to regret his blind support of ACTA?

My guess is ... [drum-roll] ... never ?
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Hephaestus (profile), 26 Mar 2010 @ 7:02am

Re: End Run
"which is a direct assault on american due process and any number of privacy and information protection laws."

If you read the sections related to copyright every single one of them can be challenged in court. They violate due process, the constitution, wiretap laws, etc. The president also has no constitutional right-authority or historic precedent to do this. ACTA does the exact opposite of what the framers of the constitution intended with the copyright clause.
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Anonymous Coward, 26 Mar 2010 @ 7:05am

the only ones have constitutional concerns are the same ones who think copyright violates the first amendment. that pretty much sums it all up nicely.
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Dark Helmet (profile), 26 Mar 2010 @ 7:15am

Re: Re: Re: ACTA
"Spam deleted..."

Oh, BTW: Cornell deleted...
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The Mighty Buzzard, 26 Mar 2010 @ 7:25am

Re:
And what can I get you to drink with your food, Mr. Troll?
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C.T., 26 Mar 2010 @ 7:32am

Different Argument
You do realize how different the argument in the Lessig/Goldsmith piece is from the one you were trumpeting a month or two ago, right?
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Hephaestus (profile), 26 Mar 2010 @ 7:46am

Re: Different Argument
Actually its more like an extension of what was said here 8 weeks ago. Also until 1 week ago they only had bits a pieces of ACTA so they were working with partial information. Now that most of the blanks have been filled in the members of TechDirt can have an informed discussion about ACTA based on facts and not speculation.
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Anonymous Coward, 26 Mar 2010 @ 8:15am

Re:
No, it doesn't sum it up, nicely or otherwise. DId you even bother to read the article?

No, you didn't. Why even comment?
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Anonymous Coward, 26 Mar 2010 @ 8:16am

Serious questions about the Anti-Citizen Trade Agreement? Who would have thought.
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Joshua Bova, 26 Mar 2010 @ 8:22am

Re: End Run
Was that last sentence written by Orwell? I cannot believe how fast our Constitutional Rights are evaporating.
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bob, 26 Mar 2010 @ 8:47am

Shine The Light For Freedom
First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

This is why you need good constitutional judges on the federal courts, not ones who willy nilly interpret the constitution with the judicial group thought of the day.

Congress should follow Biden's lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

Biden is now in lock step with the president as is the congress, who are bought and paid for by Hollywood.

At what point does President Obama begin to regret his blind support of ACTA?

LOL

All that can be done is to continue to report on ACTA.
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Another Use, 26 Mar 2010 @ 9:23am

Re: Re: End Run
One of the reasons for the second amendment, The right to bear arms, was put on in place to defend against an undemocratic government.
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Anonymous Coward, 26 Mar 2010 @ 11:33am

If Lessig et al. believes constitutional questions are surely involved with respect to ACTA, then it must be so.

Of course, this same belief was also argued before the Supreme Court in Eldred v. Ashcroft.
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Anonymous Coward, 26 Mar 2010 @ 3:40pm

Re:
Because those two things are the exact same!
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Anonymous Coward, 26 Mar 2010 @ 5:03pm

Re:
Coming from the "anonymous" lawyer who I'm sure has never ever lost any case.
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Anonymous Coward, 27 Mar 2010 @ 12:45am

Re: Re:
Why would a lawyer post anonymously? I mean, I can understand an artist posting anonymously, there's a history of anonymity in art.

But why would a lawyer? Who's heard of an anonymous lawyer who can't even make a decent argument?

I think it's coming more from an "anonymous" court stenographer. That's my guess.
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Anonymous Coward, 27 Mar 2010 @ 8:09am

Re: Re: Re:
He can't find his chapstick?
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Bill Long, 26 Jan 2012 @ 11:16am

No ma'am
I'm never surprised when a Marxist acts like a dictator.
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