[A2k] EFF Deeplink: Stopping the ACTA Juggernaut

[Eddan Katz]

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[ Picked text/plain from multipart/alternative ]
Stopping the ACTA Juggernaut.
http://www.eff.org/deeplinks/2009/11/stopping-acta-juggernaut

ACTA juggernaut continues to roll ahead, despite public indignation[1]
about an agreement supposedly about counterfeiting agreement that has
turned into a regime for global Internet regulation. The Office of the
United States Trade Representative (USTR) has already announced[2]
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[3] to only leaks[4] and[5] whispers[6]
of what ACTA is about[7], 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[8]? 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 =93The Impact of ACTA on
the Knowledge Economy=94[9] in the Yale Journal of International Law
(November 2009 edition)[10]. We explain how ACTA got this far, in this
form, and propose four mechanisms for USTR transparency reforms, and
will give the public a voice in ACTA, if U.S. citizens - and their
elected officials - speak loudly and quickly enough[11].

In brief, the ACTA process has been deliberately more secretive than
customary practices in international decision-making bodies[12] to
evade[13] 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[14]. Because of a
loophole[15] in democratic accountability on sole executive
agreements, the Office of the USTR can sign off on an IP Enforcement
agenda[16] without any formal congressional involvement at all[17].
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[18]. But the constraint of coloring
within the lines of US law[19], 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"[20], for their June 19, 2009 edition[21] (paywall
link), 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[22], the USTR conceived ACTA as a plurilateral
agreement[23], avoiding the checks and balances of existing
multilateral norm-setting bodies[24]. After the announcement of ACTA
but prior to commencing formal negotiations, the USTR had prepared a
confidentiality agreement[25] that it asked all negotiating countries
to accept, which explicitly binds the negotiating partners from public
disclosure[26]. The USTR has exploited this as the justification for
classifying all correspondence between negotiating countries in the
interest of national security[27] under Executive Order 12958[28]. The
Mexican IP Office hosting the next ACTA negotiations recently
suggested that they still do not intend for the documents to be made
available to the public[29]. The Internet Chapter was reportedly
delivered to negotiating partners in physical, watermarked copies
designed to guard against leaks[30]. 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[31], the USTR
chose to negotiate ACTA as a sole executive agreement. As a result,
ACTA will not require congressional advice and approval[32], which is
integral to the constitution's delicate balance[33] 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[34].

 From early on[35], civil[36] society[37] has protested ACTA's
secrecy, and despite continued public pressure[38], the USTR=92s
transparency theater[39] rehearsals of internal review have concluded
that showing a selective few Washington insiders[40] the Internet
provisions under non-disclosure agreements would satisfy the demands
of openness, transparency, and oversight[41].

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[42] to counterbalance
the disproportionate influence of lobbyists for incumbent industries.
This requires reform of the current trade advisory committee[43]
system to include civil society and technology industry participation
in the tier 3 industry trade advisory committee on intellectual
property, ITAC-15[44], or the creation of new equivalent level
advisory committees[45]. Public interest values such as health and
consumer protection[46] could play an important role in the new
bipartisan trade policy[47] 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)[48], IP enforcement provisions in
agreements must not undermine internationally agreed upon commitments
on public health[49], and flexibilities that protect citizens=92 access
to knowledge[50], nor obstruct IP exceptions and limitations[51]
appropriate for the digital age. In addition, the Congressional
Oversight Group[52], a statutory supervisory group comprising members
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[53] on the public policy impacts like in
other negotiations[54] and their customary practices of making
documents available[55]. The USTR incorporating these reforms should
heed the Attorney General's instruction to adopt a presumption in
favor of disclosure[56] to usher in the President's new era of open
Government[57]. At a minimum, negotiating texts[58], when distributed
to all negotiating countries should be made public.

* Implement the State Department=92s Circular 175 procedure.

Finally, the State Department plays an important role in checking the
unfettered power of the USTR through its Circular 175 Procedure[59].
These are the regulations that "ensure the proper exercise of the
treaty-making power." The State Department Foreign Affairs Manual goes
into great detail[60] 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 USTR transparency practices must be reformed, and they have failed
at reforming themselves. Now that the leaked documents[61] confirm
everything we feared[62], 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)[63]

-- 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)[64]

-- On transparency practices: President Obama=92s 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. (KEI USTR Transparency Review Report, March 19, 2009 - as
reviewed by Daniel Sepulveda, Assistant USTR for Congressional Affairs)
[65]

-- On public participation: The ACTA negotitations "[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)[66]

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.


---
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