ACTA Raising Serious Constitutional Questions

from the executive-agreements? dept

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?

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

Even If ACTA Doesn't Include Filtering Or Three Strikes, There Are Things To Worry About

from the let's-take-a-look... dept

So after months and months of people asking the USTR to reveal what's in ACTA, Public Knowledge finally got Stan McCoy to confirm that it won't include three strikes or mandatory ISP filtering. While some of the other leaks had indicated that both were on the table at some point, it's good to see the USTR confirm that they're not, though it's still not clear why they won't reveal what is in the document.

Still, that doesn't mean it won't impact US law in potentially dangerous ways. In particular, a lot of what it will try to do is lock in US case law that hasn't been established by Congress, and which other countries have differing opinions on. So, for example, if it locks in contributory liability (something the courts have ruled on, but Congress never included in the law), it will massively hinder Congress' ability to fix this mistake by the courts. As Sherwin Siy, from Public Knowledge noted:

That analysis hints at changes to international norms on "third party liability"--such as contributory infringement, vicarious liability, or inducement of infringement.

These are areas of law that, in the U.S., are defined almost entirely by court decisions, which build in nuances and balance to the application and enforcement of the law. One of the dangers of trying to codify these doctrines into an international agreement is that it can freeze the law as it is currently, preventing the courts from adapting case law to adjust for new developments in business, technology, and culture. There’s also the risk that binding the United States to an international set of standards will actually hamper Congress from enacting needed reforms to our copyright system.

Nor can we so quickly dismiss concerns about filtering and 3 strikes policies--even if the U.S. isn't pushing for legal obligations or mandates, there has been a constant, concerted effort by the largest record labels and movie studios over the past year or more to negotiate their own private 3 strikes agreements with ISPs. Filtering also remains a big topic for content industry lobbyists. Both of these measures, even if not mandated by laws, are often pressed upon ISPs and their customers as "voluntary" agreements, with threats of expensive lawsuits waiting in the margins if they don't comply. Even without mandating these procedures, laws, treaties, and executive agreements like ACTA can give them a great deal of cover by endorsing such "private agreements," adding a veneer of legitimacy to practices that otherwise would raise greater alarm at their impact on privacy, or simply their false positive rate. ACTA's focus on penalties can also incentivize potential plaintiffs to push harder, and for potential defendants to cave.

Indeed, what many people have pointed out is that the really pernicious part of ACTA is in reading between the lines. There are already international agreements on intellectual property that include clear safe harbors and consumer protection. What's notable in the leaked drafts of ACTA is that such things are missing. So even if it doesn't force the US to change the law, it could very much hinder attempts by US to come to its senses and fix the broken parts of the law.

Just as we were discussing problems with the DMCA today, the drafts of ACTA suggest that they will lock in some of the DMCA's worst features, such that the US would be hindered in correcting those mistakes, and, even worse, other countries would be prevented from putting in place better solutions as well, which could be useful in convincing US politicians that the more draconian parts of the DMCA are a mistake. ACTA doesn't need to explicitly change US law today to have a serious impact on US law in constraining Congress from fixing its broken parts. Things like secondary liability, which were entirely decided by the courts, despite not appearing anywhere in the law, are quite problematic -- and ACTA is looking to lock them in, so that Congress couldn't even fix that mistake by the courts. That's a serious problem.

Filed Under: acta, constitution, dmca, executive agreement, filtering, lobbyists, secondary liability, three strikes, treaty

Let's Face Facts: ACTA Is Called An 'Executive Agreement' To Change The Law With Less Hassle Than A Treaty

from the an-executive-agreement-is-a-treaty-without-oversight dept

When concern over ACTA secrecy started picking up a few months ago, one of the industry lobbyist talking points that floated out was "don't worry about ACTA, because it's not a 'treaty' but an 'executive agreement' and thus, it can't impact US law." An IP lawyer in our comments keeps making this point over and over again, and arguing that anyone who argues otherwise doesn't understand the Constitution. Of course, that's silly. In response to that guy in particular, I'd been doing more research to understand the real differences between a "treaty" and an "executive agreement" and realized that pretty much everyone (including people at the State Departement) admit that the only substantive differences is that you don't need 2/3 Senate approval for an executive agreement. Otherwise, in every way, it's just like a treaty. Basically, it's a way to end-run around a treaty that wouldn't get approval. I'd been meaning to write up something about this, but it looks like Andrew Moshirnia of the Citizen Media Law Project has beaten me to it and done an excellent job ripping apart the "but it's just an executive agreement" argument:

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 then wonders if the massive unpopularity surrounding ACTA and the process will put renewed attention on this questionable practice 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. 

Let your Senators and Representative know that this pointless secrecy is unacceptable. Perhaps your demand will inspire them (either through pride or fear) to reclaim their treaty power and back out of a deal to which they never agreed. 

And... the next time your friendly industry lobbyist insists that ACTA is "not a treaty" so you have nothing to worry about, go ahead and explain why that's incorrect.

Filed Under: acta, constitution, executive agreement, lobbyists, treaty