[Infowarrior] - Stopping the ACTA Juggernaut

[Richard Forno]

November 19th, 2009

Stopping the ACTA Juggernaut Legislative Analysis by Eddan Katz

http://www.eff.org/deeplinks/2009/11/stopping-acta-juggernaut
The ACTA juggernaut continues to roll ahead, despite public  
indignation about an agreement supposedly about counterfeiting that  
has turned into a regime for global Internet regulation. The Office of  
the United States Trade Representative (USTR) has already announced  
that the next round of Anti-Counterfeiting Trade Agreement (ACTA)  
negotiations will take place in January — with the aim of concluding  
the deal "as soon as possible in 2010."

For the rest of us, with access to only leaks and whispers of what  
ACTA is about, there are many troubling questions. How can such a  
radical proposal legally be kept so secret from the millions of Net  
users and companies whose rights and freedoms stand to be affected?  
Who decides what becomes the law of the land and by what influence?  
Where is the public oversight for an agreement that would set the  
legal rules for the knowledge economy? And what can be done to fix  
this runaway process?

We wrestle with these questions in an essay on “The Impact of ACTA on  
the Knowledge Economy”(PDF here) in the Yale Journal of International  
Law (November 2009 edition). We explain how ACTA got this far, in this  
form, and propose four mechanisms for USTR transparency reforms, that  
will give the public a voice in ACTA, if U.S. citizens — and their  
elected officials — speak loudly and quickly enough.

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. In an interview with "Inside  
U.S. Trade", for their June 19, 2009 edition (paywall link here), the  
USTR was far less confident:

When pressed whether the U.S. would be open to any negotiated  
difference from U.S. law in the ACTA, the official said that the goal  
of the U.S. "is to stick as closely to U.S. law as possible."

How can the USTR negotiate an international agreement that sets new  
global IP enforcement norms requiring changes to U.S. law and policy  
as an Executive Agreement, without the knowledge or involvement of  
Congress? Having failed to get similar proposal adopted via the World  
Customs Organization, the USTR conceived ACTA as a plurilateral  
agreement, avoiding the checks and balances of existing multilateral  
norm-setting bodies. After the announcement of ACTA but prior to  
commencing formal negotiations, the USTR had prepared a  
confidentiality agreement that it asked all negotiating countries to  
accept, which explicitly binds the negotiating partners from public  
disclosure.

The USTR has exploited this as the justification for classifying all  
correspondence between negotiating countries in the interest of  
national security under Executive Order 12958. The Mexican IP Office,  
which is hosting the next ACTA negotiations, still gave indications  
that the documents will not be made available to the public. The  
Internet Chapter was reportedly delivered to negotiating partners in  
physical, watermarked copies designed to guard against leaks. If the  
traditional justification for secrecy in trade negotiations is to  
safeguard details of sensitive US positions in negotiations for  
diplomatic advantage over other foreign governments, then why is this  
confidentiality agreement being used to prevent disclosure of ACTA  
texts to its own citizens?

Upon the expiration of Trade Promotion Authority in 2007, the USTR  
chose to negotiate ACTA as a sole executive agreement. As a result,  
ACTA will not require congressional advice and approval, which is  
integral to the constitution's delicate balance of executive and  
legislative powers. As staunch a defender of executive privilege as  
John Yoo once convincingly argued that the limits of executive power  
to negotiate foreign agreements on intellectual property matters  
unchecked would deprive the House of its constitutional function.

 From early on, civil society has protested ACTA's secrecy, and  
despite continued public pressure, the USTR’s transparency theater  
rehearsals of internal review have concluded that showing a selective  
few Washington insiders the Internet provisions under non-disclosure  
agreements would satisfy the demands of openness, transparency, and  
oversight.

Sole executive agreements are not meant to be unaccountable. There are  
in fact systems in place to stop our executive (and private interests)  
from having untrammeled power to change the law. We've outlined four  
ways that Congress, or an Administration sincere about transparency,  
could put their house in order.

Reform trade advisory committees for more diverse representation

Input to U.S. trade negotiators on IP needs to reflect the views of  
all stakeholders in the U.S. knowledge economy to counterbalance the  
disproportionate influence of lobbyists for incumbent industries. This  
requires reform of the current trade advisory committee system to  
include civil society and technology industry participation in the  
tier 3 industry trade advisory committee on intellectual property,  
ITAC-15, or the creation of new equivalent level advisory committees.  
Public interest values such as health and consumer protection should  
play an important role in the new bipartisan trade policy for the  
knowledge economy.

Strengthen congressional oversight and negotiating objectives

Congressional oversight of foreign trade negotiations, especially  
agreements affecting areas of non-trade domestic policy, should  
require the USTR to comply with negotiating objectives that reflect  
the interests of all stakeholders in the U.S. economy. In addition to  
the labor and environmental standards articulated in proposed bills  
like the TRADE Act (H.R. 3012), IP enforcement provisions in  
agreements must not undermine internationally agreed upon commitments  
on public health, and flexibilities that protect citizens’ access to  
knowledge, nor obstruct IP exceptions and limitations appropriate for  
the digital age. In addition, the Congressional Oversight Group, a  
statutory supervisory group comprising members of the House and the  
Senate designed to liaise with the Trade Representative could conduct  
a thorough review and certify that the new negotiating objectives have  
been met before a trade agreement could be brought for a congressional  
vote.

Institutionalize transparency guidelines for trade negotiations

Given the significance of the substantive provisions being debated to  
Internet users, the ACTA process especially should enable citizens to  
participate and provide input on the public policy impacts like in  
other negotiations, where it is customary practice to make documents  
available. The Office of the USTR incorporating these reforms should  
heed the Attorney General's instruction to adopt a presumption in  
favor of disclosure to usher in the President's new era of open  
Government. At a minimum, negotiating texts, when distributed to all  
negotiating countries should be made public.

Implement the State Department’s Circular 175 procedure.

Finally, the State Department plays an important role in checking the  
unfettered power of the USTR through its Circular 175 Procedure. These  
are the regulations that "ensure the proper exercise of the treaty- 
making power." The State Department Foreign Affairs Manual goes into  
great detail on the Legal Advisor's criteria for review of  
international agreements. There are multiple procedures on hand,  
including formal congressional consultation, when there is a serious  
question regarding the type of agreement being negotiated. [11 FAM  
723.4(b)] It is also made clear that the approval of authorization to  
negotiate does not constitute advance approval of the text or  
authorization to enter into the agreement. [11 FAM 724.2] The State  
Department investigates whether the proposed agreement is "in conflict  
with other international agreements or U.S. law" [11 FAM 722(2)] and  
whether it follows the "general international practice as to similar  
agreements." [11 FAM 723.3(8)] Most significantly for the public's  
stake in Internet freedom, the Circular 175 declares that:

The interest of the public be taken into account and, where in the  
opinion of the Secretary of State or his or her designee the  
circumstances permit, the public be given an opportunity to comment.  
[11 FAM 725.1(6)]

The Office of the USTR transparency practices must be reformed, and  
they have failed at reforming themselves. Now that the leaked  
documents confirm everything we feared, it is time to take a look at  
how we might hold USTR Ambassador Kirk and Assistant McCoy, the lead  
ACTA negotiator, to account for their promises:

	• On diverse representation for advice on trade: "I can assure you  
that I am committed to working very closely with Congress and all  
interested stakeholders on all of our trade
agreements and negotiations, including ACTA." (Ronald Kirk  
Confirmation Hearings, March 9, 2009)
	• On congressional oversight and legislative power: "Q: Will the ACTA  
rewrite U.S. law? A: No. Only the U.S. Congress can change U.S.  
law." (ACTA Fact Sheet, August 4, 2008)
	• On transparency practices: President Obama’s trade officials met  
with several civil society groups and promised a thorough review of  
the USTR policies regarding transparency. The review is expected to be  
completed within a few months. The process will include a meeting  
within a month to discuss initial specific proposals for openness and  
transparency. Citizens and NGOs are encouraged to think about the  
specific areas where openness and transparency can be enhanced and  
how. (USTR Transparency Review KEI Report, March 19, 2009 - as  
reviewed by Daniel Sepulveda, Assistant USTR for Congressional Affairs)
	• On public participation: The ACTA negotiations "[p]articipants also  
discussed the importance of transparency including the availability of  
opportunities for stakeholders and the public in general to provide  
meaningful input into the negotiating process." (USTR Press Release,  
November 6, 2009)
Such accountability is available in the U.S. system, but it cannot  
come from the Office of the USTR alone. If ACTA is going to regulate  
the global Internet, we believe that should warrant the opportunity  
for public comment.