While we know that at least Senator Ron Wyden understands why CISPA (and related cybersecurity bills) are bad, there are still 99 other Senators who don't seem quite so clear on the matter. And they're about to vote on such bills very, very soon. A bunch of groups have set up a site called Privacy is Awesome to help you contact your Senator today to let them know that you do think that privacy is awesome, and you won't accept them voting to take away your privacy via overly expansive cybersecurity bills like CISPA or the other bills the Senate is considering.
Senator Wyden has been at the forefront of raising concerns about the Trans Pacific Partnership agreement (as with many other issues we follow), specifically over the total lack of transparency from the USTR on the issue. While USTR Ron Kirk has pretended that "listening" to a few people is transparency, it's not. Actually sharing what you're doing is transparency.
Now, it's one thing for the USTR to refuse to share with the public what it's supposedly negotiating on their behalf -- but what if it is refusing to share with the very people in charge of overseeing its actions? As you hopefully know it's Congress, not the Executive branch, that has the authority to regulate foreign commerce. While the USTR is often granted the power to handle negotiations, it is only to be done with oversight from Congress.
So, you would think that the staff director on the Senate Finance Committee's Subcommittee on International Trade, Customs and Global Competitiveness, would be able to "oversee" what the USTR is doing by getting a copy of the USTR's positions. That staffer, who works for Senator Wyden, got all the proper security clearances... and the USTR basically gave him the finger. According to Wyden:
As the Chairman of the Senate Finance Committee’s Subcommittee on International Trade, Customs, and Global Competitiveness, my office is responsible for conducting oversight over the USTR and trade negotiations. To do that, I asked that my staff obtain the proper security credentials to view the information that USTR keeps confidential and secret. This is material that fully describes what the USTR is seeking in the TPP talks on behalf of the American people and on behalf of Congress. More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing.
But you know who's not having any trouble seeing the details? The MPAA, Comcast, PHRMA and others. Again, from Senator Wyden:
The majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations – like Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America – are being consulted and made privy to details of the agreement.
Wyden is introducing some new legislation in response to this, called the Congressional Oversight Over Trade Negotiations Act, which is actually just a clarification of legislation passed in 2002 that created the Congressional Oversight Group in an attempt to increase coordination between Congress and USTR on such matters. Again, Senator Wyden:
Congress passed legislation in 2002 to form the Congressional Oversight Group, or COG, to foster more USTR consultation with Congress. I was a senator in 2002. I voted for that law and I can tell you the intention of that law was to ensure that USTR consulted with more Members of Congress not less.
In trying to get to the bottom of why my staff is being denied information, it seems that some in the Executive Branch may be interpreting the law that established the COG to mean that only the few Members of Congress who belong to the COG can be given access to trade negotiation information, while every other Member of Congress, and their staff, must be denied such access. So, this is not just a question of whether or not cleared staff should have access to information about the TPP talks, this is a question of whether or not the administration believes that most Members of Congress can or should have a say in trade negotiations.
Again, having voted for that law, I strongly disagree with such an interpretation and find it offensive that some would suggest that a law meant to foster more consultation with Congress is intended to limit it. But given that the TPP negotiations are currently underway and I – and the vast majority of my colleagues and their staff – continue to be denied a full understanding of what the USTR is seeking in the agreement, we do not have time to waste on a protracted legal battle over this issue. Therefore, I am introducing legislation to clarify the intent of the COG statute.
The legislation, I propose, is straightforward. It gives all Members of Congress and staff with appropriate clearance access to the substance of trade negotiations. Finally, Members of Congress who are responsible for conducting oversight over the enforcement of trade agreements will be provided information by the Executive Branch indicating whether our trading partners are living up to their trade obligations. Put simply, this legislation would ensure that the representatives elected by the American people are afforded the same level of influence over our nation’s policies as the paid representatives of PHRMA, Halliburton and the Motion Picture Association.
How ridiculous is it that a Senator in charge of oversight of the USTR has to introduce special legislation just to find out what's being negotiated by the USTR, supposedly on the public's behalf? The ridiculous levels of secrecy from the USTR are shameful. It's sad that it hasn't received more attention.
Senator Ron Wyden took to the floor of the Senate earlier this week to speak out against pretty much all of the current cybersecurity proposals out there arguing that "privacy should be the default, not the exception." While noting that narrowly targeted cybersecurity rules could be helpful in protecting consumers, he stated that it seems clear that these bills are much more focused on opening up the internet for government to spy and monitor activities online:
The full speech is chock full of good points, such as the importance of trust in creating a functioning internet, and how these bills can ruin that by cutting away at our privacy:
Congress’ effort to develop a comprehensive approach to cyber security must not erode that trust. When Americans go online to consume digital services and goods, they must believe and know with some certainty that their privacy is adequately protected. The content Americans consume must be at least as private as their library records, video rentals, and book purchases in the brick and mortar world. Our law enforcement and Intelligence agencies should not be free to monitor and catalog the speech of Americans just because it’s online.
But the bill passed by the other body, known as CISPA, would erode that trust. As an attempt to protect our networks from real cyber-threats CISPA is an example of what not to do. CISPA repeals important provisions of existing electronic surveillance law that have been on the books for years without instituting corresponding privacy, confidentiality, and civil liberties safeguards. It creates uncertainty in place of trust, it erodes statutory and constitutional civil rights protections, and it creates a surveillance regime in place of the targeted, nimble, cyber-security program that is needed to truly protect this nation.
Unfortunately, S. 2105, the bill before the Senate shares some of these defects. Currently Internet services and service providers have agreements with their customers that allow them to police and protect their networks and users. Rather than simply allowing these internet companies to share information on users who violate their contracts and pose a security threat, the House and Senate proposals authorize a broad based information sharing regime that can operate with impunity. This would allow the personal data of individual Americans to be shared across a multitude of bureaucratic, military, and law enforcement agencies. This takes place regardless of the privacy agreements individual Americans have with their service providers.
In fact, both the House and Senate bills subordinate all existing privacy rules and constitutional principles to the poorly defined interest of “cyber-security.”
Wyden goes even further later in the speech noting -- as many of us have been arguing all along -- that these bills are a massive overreaction to the possibility of an issue, which are much more about ways for government contractors to profit from fear:
As they stand, these bills are an overreaction to a legitimate fear. The American people will respond by limiting their online activities. That’s a recipe to stifle speech, innovation, job creation, and social progress.
I believe these bills will encourage the development of a cyber security industry that profits from fear and whose currency is Americans private data. These bills create a Cyber Industrial Complex that has an interest in preserving the problem to which it is the solution.
There's a lot more in the speech that's worth hearing, so check it out.
It's long been known that law enforcement relies heavily on mobile phone providers to give them data on where people are, based on the location info on their mobile devices. Back in 2009, a Freedom of Information Act request revealed, for example, that Sprint had provided law enforcement officials with GPS data a staggering 8 million times in the previous year. Now, it's important to note that many of those times were apparently multiple "pings" on the same person/device. But, still. You can bet those numbers have only gone up. Last year, Senator Wyden proposed legislation requiring that law enforcement get a warrant. He has also hinted strongly at the idea that part of the government's secret interpretation of the PATRIOT Act involves access to location info on just about anyone with a mobile device.
It appears that others are taking some interest in the possibility of widespread government tracking without a warrant as well. Senator Al Franken has sent a letter to Attorney General Holder asking some pretty pointed questions about how frequently the government gets location data from mobile service providers, and what legal standards it uses. He points to the Jones ruling, which suggested there could be a 4th Amendment violation for placing a GPS device on a car, as one of the reasons for his concern.
I was very concerned to read recent reports suggesting that state and local law
enforcement agencies may be working around the protections of Jones by requesting the location
records of individuals directly from their wireless carriers instead of tracking the individuals
through stand-alone GPS devices installed on their vehicles. I was further concerned to learn
that in many cases, these agencies appear to be obtaining precise records of individuals' past and
current movements from carriers without first obtaining a warrant for this information. I think
that these actions may violate the spirit if not the letter of the Jones decision.
I am writing to ask you about the Department of Justice's own practices in requesting
location information from wireless carriers. I am eager to learn about how frequently the
Department requests location information and what legal standard the Department believes it
must meet to obtain it. I would also like to know how the Department may have changed these
practices since the Jones decision.
While I certainly appreciate this effort and line of inquiry -- I'm not sure that Jones really makes that much of a difference. As we said when it came out, the Justices really danced around the larger issues, with an extremely narrow ruling, which left open the question of how it applied to GPS devices that weren't put on the cars by law enforcement. That is, the ruling focused almost entirely on whether or not the placing of the device constituted a search -- not about the use of such a device. Still, the government's actions need much greater scrutiny here, as there's an awful lot of evidence suggesting that law enforcement is using the power to get people's locations from their mobile phone providers at an incredible rate, and with little to no oversight. I doubt that AG Holder will provide useful answers to this request, but it's still good that Senator Franken is asking.
We already discussed the RIAA's attempt to downplay its role in helping the feds seize and censor the popular hiphop blog Dajaz1.com. It seems the feds are also trying to brush this off as if it's nothing important. According to a comment they gave Ben Sistario at the NY Times:
Ross Feinstein, a spokesman for Immigration and Customs Enforcement said Sunday that government officials had followed all proper procedures in the case of Dajaz1, which was one of more than 760 sites seized.
That really makes you wonder. How is it possible that they could have followed "all proper procedures" when the end result is that they stopped a popular blog from publishing for well over a year, without ever actually filing a lawsuit? If that's the "proper procedure" then the procedure is what most people call "unconstitutional."
Thankfully, it appears some are noticing this. Senator Ron Wyden clearly understood what's going on and told Techdirt:
"The domain name seizures show that some agencies in the Obama administration care more about the interests of Hollywood studios and the big record labels than due process, transparency, and accountability. It is hard to believe that ICE and DOJ had Dajaz1's Fifth amendment rights in mind when they seized their property and held it for more than a year without ever being able to build a case."
"A blog has the same protections as a newspaper or magazine, and yet ICE saw fit to seize this site for over a year for dubious reasons," Lofgren told MT. "It's an outrageous abuse of First Amendment and due process rights, raising serious questions about why the Department of Justice allowed this seizure to continue when the government clearly did not have probable cause."
Indeed. With Wyden concerned about the Fifth Amendment and Lofgren concerned about the First... I'm guessing that this isn't the end of the discussion around this particular seizure.
There's a lot of talk about how the Senate is likely to approve the JOBS Act today with a procedural plan put in place by Harry Reid that limits the ability for any real amendments to be debated or discussed. Unfortunately, the JOBS Act has been more controversial than it should be, based on some misinformation being spread about how it's somehow dismantling all investor protections from Sarbanes Oxley.
The fact is, this is a situation where the original rules clearly went too far in requiring onerous regulations on businesses that didn't actually do much to stop fraud and abuse, but did make it prohibitively expensive for many good companies to go (or stay) public. There should be a middle ground that is not the "anyone can go public based on hype" days of the late 90s, and the much more limited public markets we have today. The JOBS Act may go a bit too far in raising the ceiling for the IPO "on ramp" to $1 billion in sales, but it's not the free for all that some have made it out to be. It gives companies more time to meet full (expensive) Sarbanes Oxley compliance, but opponents make it out like in these five years, companies will just completely make up their financial documents (even knowing that they'll face a reckoning when the on-ramp is over). Making the on-ramp slightly smaller probably would have made sense (and there was an attempt to do that, which appears to be dead in the water), but this is a case where you have a basic trade-off. Yes, you can add regulations to public companies, but it means you'll have fewer public companies, and less money to spend on creating jobs. That's a real trade-off, and one where those advocating specific plans do need to recognize the costs and the benefits.
Separately, there are many other features of the JOBS Act that make plenty of sense -- such as allowing small businesses to make use of crowdfunding. Currently, crowdfunding is possible for pre-sales or donations, but not in exchange for equity. Yes, there is risk involved, but there are some limits here, and to some extent, people should learn to understand the basic risks of what they're investing in before they do so anyway. These crowdfunded operations aren't going to be giant companies dealing with Wall Street for the most part, so the talk of how this helps Wall Street is mostly bogus.
That said, because of the political process that will get this through quickly, it appears that Senator Wyden won't get to introduce two amendments he proposed, one of which would have made it clear that the US can't agree to ACTA without Congressional approval, and a second that would have required the USTR to make its proposals public on international trade agreements. Hopefully, we'll see those proposals turn up elsewhere.
Over the last year or so, we've been covering Senator Ron Wyden's efforts to get Obama administration officials to come public with their secret interpretation of the Patriot Act. Wyden, of course, cannot say how they're interpreting the Patriot Act, though there have been clues, suggesting an extremely broad interpretation, that effectively allows them to spy on Americans, in direct contrast to the way most people (including many in Congress) believe the law allows. In the past, intelligence officials have basically said that they will not reveal how they interpret the Patriot Act because they don't want to, and doing so might reveal some of the details of how they spy on people.
Of course, keeping certain details secret concerning specific operations to monitor threats is reasonable. But a secret interpretation of the law that appears to go against what the law says directly? That's not acceptable. If the government can just make up how it interprets laws, and then keep those interpretations secret, we no longer have representative democracy at all. We have a sham government.
Given all of this, the NY Times and the ACLU sued the government for failing to reveal its interpretation of the law under a Freedom of Information Act. The administration is now seeking to get the two lawsuits dismissed... leading Senators Wyden and Udall to send a rather direct and forceful letter to Attorney General Holder questioning this move. I'll include a bunch of snippets below, but one key bit in this letter, which I believe is new, is the acknowledgement that further information that Wyden and Udall have come across suggest that the secret surveillance operation that makes use of this secret interpretation of the law is not even effective:
We would also note that in recent months we have grown increasingly skeptical about the actual value of the "intelligence collection operation" discussed in the Justice Department's recent court filing regarding the pending lawsuits. This has come as a surprise to us, as we were initially inclined to take the executive branch's assertions about the importance of this "operation" at face value. We will provide more detail about this skepticism in classified correspondence.
That's a pretty pointed claim, and certainly makes clear another reason why the administration is fighting so hard against revealing the secret interpretation. They know that once people find out just how widely they're tracking people under this bogus interpretation of the law, that not only will people be upset about it, but that the administration won't even be able to prove that such efforts did anything to prevent terrorism in the country.
On to some other key parts of the letter:
It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existences of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or "FISA Court") has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.
We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn't know what its government thinks the law says.
That seems like quite an understatement. It really makes you wonder what country we live in today. I'm fine with the government keeping certain things secret -- but one thing that it should never keep secret is the law itself. That's not a democracy any more at all, a point made in the letter as well:
In a democratic society -- in which the government derives its power from the consent of the people -- citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to now how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don't think that government officials should be writing secret laws.
Later, the letter notes that the administration certainly has been willing to reveal this secret interpretation to some members of Congress (such as the two of them), but it appears that even many members of Congress have no idea how the administration is interpreting the law:
While the executive branch has worked hard to keep the government's official interpretation of the Patriot Act secret from the American public it has, to its credit, provided this information in documents submitted to Congress. However, these documents are so highly classified that most members of Congress do not have any staff who are cleared to read them. As a result, we can say with confidence that most of our colleagues in the House and senate are unfamiliar with these documents, and that many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret.
Wyden and Udall are equally troubled by the insistence by the administration that it needs to keep its interpretation of these laws secret to prevent adversaries from understanding what's being done. They point out that this is "chilling logic" as it could mean that the government could basically create all sorts of secret intelligence laws:
The crux of the Justice Department's argument for keeping the official interpretation of the law secret is that this secrecy prevents US adversaries from understanding exactly what intelligence agencies are allowed to do. We can see how it might be tempting to latch on to this chilling logic, but we would note that it would then follow that all of America's surveillance laws should be secret, because that would make it even harder to guess how the United States government collects information. For example, when Congress passed the Foreign Intelligence Surveillance ct in 1978 it would have been useful to keep that law secret from the KGB, so that Soviet agents would not know how the FBI was allowed to track them. But American laws should not be made public only when government officials find it convenient. They should be public all the time, and every American should be able to find out what their government thinks those laws mean.
There's a lot more in the full letter, but it's difficult not to be furious about the sense of entitlement the administration has over this. Keeping details of investigations secret is perfectly reasonable. But keeping a secret interpretation of the law secret -- and one that lets them do much greater surveillance than what the law appears to state in plain language, is a significant problem for those who believe in a working democracy and representative government.
We've covered how Senator Wyden has been pressing the administration on ACTA and TPP concerning the process behind both agreements. The State Department has now responded by admitting that ACTA is, in fact, binding on the United States.
Under international law, the ACTA is a legally binding international agreement. By its terms, the ACTA enters into force when at least six parties have deposited instruments indicating their consent to be bound. Accordingly, once in force for the United States, the ACTA will impose obligations on the United States that are governed by international law. As in the case of other international agreements, it is possible that Congress could enact subsequent changes in U.S. law that are inconsistent with U.S. international obligations.
That's interesting, because it's what many people had assumed (and what other signatories to ACTA have been saying), but actually contradicts earlier statements from the USTR suggesting that we can ignore parts of the agreement that we don't like or which conflict with existing US law. It also means that, as we've been warning, ACTA dangerously restricts Congress from passing new laws that could push back on some of the worst aspects of copyright law. Sure, Congress could ignore ACTA, but there would be substantial problems if it were to do so. In other words, ACTA is binding on the US under international law... but not under US law. Of course, international law trumps US law here, so that's kind of meaningless.
And yet, the administration still insists that it can pass and ratify ACTA without Congressional approval. In the same letter, the State Department says that it doesn't see any problem in having the President approve ACTA without Senate ratification, because it doesn't require any changes today. First of all, it's not entirely clear if that's true, and there are some areas where it is believed current ACTA provisions likely come into conflict with US law (though the USTR squeezes around this by saying that all depends on how you interpret the phrases in ACTA -- which seems like an issue of piss poor drafting of the agreement by the USTR).
Either way, the claim that this does not need Senate ratification appears to be incorrect. The fact that it is restricting Congress's ability to act on an issue which is Congress's mandate (not the administration's) suggests that there is simply no way that the President can sign ACTA without it being ratified by Congress. Even if it doesn't force Congress to change laws today, it does unquestionably hinder Congress' ability to change laws in the future.
Perhaps even more ridiculous is that earlier today, USTR Ron Kirk appeared before a Senate committee on trade issues, where Senator Wyden was able to ask Kirk about both ACTA and TPP. The answers were quite disturbing, and show the rather imperialistic attitude that the administration and Kirk in particular have taken on this issue:
After repeating what the State Department said about it being binding, the discussion on TPP is downright ridiculous. Kirk insists that the USTR has been super-transparent on TPP. That's interesting, considering that no documents have been released, no efforts to discuss the document with the public are planned and, in fact, the USTR has planned to keep all background documents on TPP secret until four years after the agreement is ratified.
Wyden points out that the public is clearly up in arms over intellectual property issues, as seen by the response to SOPA and PIPA -- and notes that, currently, the USTR is requiring people to have security clearance to see TPP. He questions what's wrong with having the USTR publicly display what its own proposals are for TPP. He's not saying they should reveal trade secrets or proposals from others -- but make the US's own proposals public. Kirk insists that it's unfair to compare TPP to SOPA and PIPA. That would be a lot more convincing if we could actually see the details, but we can't, since we don't have security clearance and we haven't been "chosen" by the USTR.
In response to the request to put the proposals up publicly on the internet, Kirk insists that if we do that, we'll "never be able to negotiate another trade agreement again" because others wouldn't come to the table. Kirk made this identical argument about ACTA. Of course, later, after the secret documents leaked, we found out that most of the other negotiators wanted the documents public... but it was the US and Ron Kirk who wanted them secret. So I'm sorry, but his claims that others would leave the table and wouldn't negotiate just don't make any sense at all.
Wyden points out, again, that "the norm" for how the public views intellectual property changed on January 18th -- and the public needs to be involved in these debates. He asks Kirk to "throw open the doors" to the USTR so that the TPP negotiation info is a lot more public. Kirk's response is quite bizarre. He talks about the importance of democracy and elections, and letting the elected officials represent the public's interest.
Forgive me for asking, but when did we elect Ron Kirk to head the USTR? He's an appointee, not an elected official. He doesn't represent the public. At all. And that needs to change.
We've written a lot about Senator Ron Wyden around here, mainly for his roles in pushing back against government surveillance efforts as well as his strong leadership in preventing bad internet regulations. But, it seems that he's becoming a target within his own party. We'd already noted that with SOPA/PIPA, unfortunately, it seemed like many Democrats (Wyden's party) were planning to stick with the bill, while it was the Republicans who had moved against it. So, despite Wyden's leadership on the issue, his own party had abandoned him. Now, Politico is running a piece that seems like something of a hit piece on Wyden for daring to work with Republican Paul Ryan on Medicare reform -- trying to work out a reasonable compromise that would give seniors more choices (something that seems like it might be a reasonable idea). But in a world of partisan politics, this is a problem. And it's not a problem because the idea is bad... but because it makes it harder for Democrats to attack Ryan. It all comes back to partisanship over actually making the government run better. Seriously. Nowhere does the article discuss whether or not the plans make sense... just the fact that Dems wanted to bash the Republicans over this plan, and it's more difficult now:
Though Democrats still have every intention of slamming Republicans who backed Ryan’s earlier plan, there’s sentiment in both parties that Wyden’s latest move gives the GOP at least some cover.
“It neutralizes the weapon,” Sen. John Cornyn, chairman of the National Republican Senatorial Committee, said in an interview.
From there, the article also suggests that Wyden's efforts on SOPA/PIPA were similarly traitorous to Democrats, because (oh gosh!) he worked with Rep. Darrell Issa on SOPA/PIPA:
As if that weren’t enough, Wyden also teamed up with another favorite Democratic whipping boy, Rep. Darrell Issa (R-Calif.), to tear up a carefully scripted anti-piracy bill backed by one of the Democratic party’s most loyal constituencies: Hollywood.
Of course, Politico's narrative doesn't work as well if you follow the real timeline -- which was that Wyden was working against these bills way before Issa realized there was a problem with them. The two did team up, eventually, but not to mess up Democratic partisan politics -- but to stop a really bad bill.
This seems like a quintessential example of the kind of inside baseball reporting that commentators like Jay Rosen complain about all the time. It's reporting on politics like it's a horse race, and the most important thing is which party is winning -- not what they're actually doing.
In fact, if you want to put the Politico article in context, I would suggest first reading this Bloomberg piece from a few months ago about Senator Wyden, called, Ron Wyden, Senator From Planet Where Congress Works. That article shows a Senator who isn't focused on playing to what the party wants, but on actually getting important stuff done.
And I think most of us agree that, when it came to SOPA/PIPA, stopping those awful bills was a lot more important than some partisan politics. It's pretty ridiculous to then use that as an example of how he's messing up the game plan for Democrats. Perhaps the real lesson is that the Democrats have the wrong game plan. Millions of people lined up behind Wyden and against PIPA and SOPA. It had nothing to do with partisan politics and everything to do with what was the right thing to do. The reason why everyone hates Congress these days is because they're all focused on purely partisan politics and how much they can hurt "the other guy," rather than seeing if they can actually do something useful. That Wyden is attacked because he's trying to do something useful (and ignoring the partisan gamesmanship in the process) seems pretty pathetic.
Back in October, we noted that Senator Ron Wyden had sent the Obama administration a letter pointing out that it appeared unconstitutional for the President to sign ACTA without getting Congressional approval. The USTR had been insisting that because ACTA does not require any change to US law, it doesn't need any such approval. Of course, that ignores a few issues. First, while it may not change US laws, it seems likely that it would restrict future changes to laws if we wanted to stay in compliance. For that reason alone, it should have Congressional approval. But the larger point is that international agreements signed without Congressional approval -- so-called "executive agreements," -- can only be done for issues solely under the President's mandate. Copyright and patent laws, however, are the mandate of Congress, not the President.
The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.
Thus, Wyden asked the President to explicitly state that ACTA was not binding and does not create any international obligations for the US:
I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA.
Instead, however, the USTR responded (embedded below) with the same exact response it's been giving out all along: nothing to see here because ACTA requires no changes to US laws. There are two very big problems with this. First, it's not clear that's even true. The Congressional Research Service's analysis of the language of ACTA (done at the request of Wyden) pointed out that ACTA may require changes to US law. The problem (and it's a big problem) is that the language is so vague, it all comes down to interpretation.
Second, even if the USTR is correct that ACTA requires no changes to US law, that's answering a different question. Wyden did not ask about what ACTA required to implement. He asked what was required to approve it. And the law does not say that the President can declare something an executive agreement if it doesn't require a legislative change -- but that he can only do it for things under his sole mandate. ACTA clearly does not qualify. Either way, this is a really disingenuous move by the USTR. It answers a different question and does so possibly inaccurately. And, nowhere in the letter did anyone respond to Wyden's specific request for a declaration that ACTA creates no international obligations for the US.
In response, Wyden has now sent a second letter (also embedded below) to the State Department, asking it to look into this and clarify if a mistake has been made. Here are the specific questions he asks the State Department to answer:
If ACTA is entered by the President without Congressional consent, what will be the nature of the agreement and its legal implications under U.S. and international law? For example, is it the Department of State's opinion that ACTA will be equivalent to a non-binding "memorandum of understanding," like some of the intellectual property agreements cited by USTR in the attached letter? Can ACTA be a valid and binding "sole executive agreement" under the U.S. Constitution, even though the regulation of intellectual property is not a sole executive function under the Constitution? Or must ACTA, to be binding, be a form of Congressional-executive agreement by virtue of ex ante or ex post congressional approval?
What is the nature of the international legal obligations that ACTA would create? Would the U.S. be in violation of the agreement if the Congress changed federal law in a way not consistent with the agreement, for example by ridding our law of statutory damages for online copyright infringement? What would be the implications of such a violation?
What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law? (It is worth noting that many experts believe that ACTA is not, in fact, consistent with current U.S. law.)
These are good questions. The first and third are the crux of the Constitutional issue, but the second one is the really important one from a policy standpoint. We've argued that a rather serious problem with ACTA is that it will severely limit Congress' ability to fix certain aspects of copyright law. The example used by Wyden is a good one. There's a very strong argument to be made that statutory damages in copyright law are ridiculous, disproportionate and out of control. Fixing them would be a big help in making sure that copyright law isn't used regularly as a nuclear weapon against people who simply can't defend against the possibility of ridiculous damages awards. Another example would be if Congress decided to walk the courts back on their made up idea of "inducement" being a form of copyright infringement. Under ACTA, either of these moves would put the US in violation. So while it may not require legal changes to implement today, it may significantly prevent Congress from making those changes. And shouldn't Congress have the right to weigh in on that?
