Editor’s Note: This article first appeared on Legal As She Is Spoke

Grab your pitchforks and torches, folks, it’s time once again for the internet to get angry! It was barely over a week ago that the web went dark in protest of SOPA and PIPA, evoking a grass roots movement unlike any other. Millions of angry citizens called, e-mailed, or petitioned their representatives to pull support from the two bills, and many did just that. So, alright! We win!

Well, actually, we don’t. Not yet, anyway. We may be an angry mob, but we’re also much less experienced down the rabbit hole of the political wonderland that our representatives call home. Allow me to introduce the AntiCounterfeiting Trade Agreement. Imagine a version of SOPA or PIPA, agreed to on an international level.

Since it was made public by Wikileaks in 2008, there have been strong opponents of ACTA, but far fewer than the multitudes who railed against SOPA or PIPA. The best-known piece to have come out against ACTA is a 2010 letter signed by over 75 legal academics, including New York Law School’s own Professor David Johnson.

In recent weeks, a large number of online protestors came forward, begging the president not to sign ACTA, but turns out he had already signed it last October — (whoops! A little late guys!) —  at a signing ceremony in Tokyo.  Also in attendance and signing on:  heads of state from Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea.

In addition, as I’m writing this article, there are reports that ACTA was just ratified by 22 European nations with the rest expected to follow shortly. This has led to many largescale protests (some Polish Parliament members even showed up in Guy Fawkes masks) throughout the continent.

With ACTA signed into law by President Obama, American protestors, realizing they were a little late to the protest party, claim, in effect, that the party ain’t over yet.  Petitions and articles are cropping up, questioning the constitutionality of President Obama signing ACTA with no intention of letting Congress ratify it.

The issue comes down to this:  Does President Obama need this “treaty” ratified by Congress as protestors claim, or is this an “executive agreement” within his power to sign into law as the administration claims? Plenty of opinions out there. (see herehere, and here).  LASIS sticks to  the facts.

First and foremost, let’s make sure we all understand the difference between an executive agreement and a treaty. Basically, an executive agreement can only be negotiated and entered into through the president’s authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, (3) from a prior act of Congress, or (4) from a prior treaty. EA’s can trump state laws, but not federal laws. Treaties on the other hand, need to be ratified by Congress, and can change federal laws. Get it? Beautiful.

The first question we need to answer is, “Would ACTA change any federal laws?” If it does, it is clearly a treaty and would need to be ratified by Congress.

Article 1.2 of ACTA states:

“Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”

Now I’m no expert on international agreements, but that clause seems to me to be saying, “My country can ignore whatever parts of this new law we want to, if we feel any of it doesn’t synch our own country’s laws.” As it turns out, people who are experts on international agreements agree with me. Including the Office of the United States Trade Representative. So it doesn’t seem to me that any laws would be changed by ACTA…

Of course, if we can all ignore any part of ACTA we don’t like, then what the heck is the point of the act in the first place? A fair question, and one already asked (in this context) by Mike Masnick, of Tech Dirt, a terrific and prolific writer on the subject. He believes that this clause is just a method of getting the thing passed, and now that it was, we’ll see lobbyists screaming and hollering about “international obligations” to eventually get the laws they want passed, passed. And they’ll do it using ACTA as their platform.

I agree 100%.  But that doesn’t change the fact that this act isn’t changing any laws. And although we can all point at very obvious ramifications this will have on our legal system, we can’t use that as a legal basis to knock it down or demand ratification by Congress.

A key question, and one that really doesn’t have an answer yet, is whether or not the president can enter into an executive agreement involving intellectual property at all. IP is one of the enumerated powers delegated to Congress in Article I Section 8 of the U.S. Constitution and many, including Senator Ron Wyden (D-Oregon) argue that President Obama has no business making IP policy. Recently, he has submitted a letter to President Obama asking three very important questions, the third being:

“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?”

Back to the Constitution.  Article I Section 8 says that one of the Powers of Congress is “To promote the Progress of Science and use Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is known familiarly as the Copyright Clause.”

As I said, Senator Wyden’s question is an important one.  As I said too, we just don’t know the answer.

Ooana A. Hathaway and Amy Kapczynski at the American Society of International law point out: “No comparable agreement has been concluded in this way. Thus if concluded as a sole executive agreement, it would represent a significant expansion of the scope of such agreements.”

Perhaps.  But that does not mean that President Obama’s signing ACTA was an abuse of power. It just means these are untested waters.

Hold on.  This could be a bumpy ride.

– See more at: //www.lasisblog.com/2012/01/28/acta-a-treaty-by-any-other-name/#sthash.ma6dMoze.dpuf

 

 

-Ryan Morrison, Video Game Attorney