ACTA: The State of Play in the US

In the last few weeks, we’ve seen surprising and significant developments with the Anti-Counterfeiting Trade Agreement (ACTA) in both the US and the EU. As we’ve noted before, ACTA is a plurilateral agreement designed to broaden and extend existing intellectual property enforcement laws to the Internet. In both process and in substance, it is a deeply undemocratic initiative that has bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens.

This is the first in a series of posts detailing the current state of play. Today, we’re reviewing recent U.S. developments and what we and others are doing to highlight the illegitimacy of this controversial agreement. In February, EFF submitted a Freedom of Information Act (FOIA) request to the U.S. State Department, seeking a copy of the “Circular 175” memorandum for ACTA, and the accompanying Memorandum of Law – key documents regarding the constitutionality of ACTA. The State Department is due to respond tomorrow.

The U.S. Trade Ambassador, Ronald Kirk, signed ACTA in October 2011 at a much-heralded ceremony in Tokyo. However, that does not necessarily mean that ACTA is a done deal in the U.S. Whether ACTA is now binding on the U.S. government, and whether Congress should have any role in reviewing ACTA, continue to be much-debated questions. Several U.S. Congressional representatives have recently taken action to highlight the unusually secretive process used to negotiate ACTA as compared to other IP agreements, and the particular efforts that were taken to evade normal Congressional review of the agreement.

Since 2008, the U.S. Trade Representative’s Office (USTR) has repeatedly stated that ACTA was negotiated as a “sole executive agreement” under the President’s power to conclude agreements regarding matters delegated to the President under Article II of the U.S. Constitution, and therefore does not need to be put before Congress for review and approval. That view has been criticized by leading U.S. Constitutional Law professors on several occasions (see here, here, and here, and our views).

As Senator Ron Wyden pointed out in his letter to the President last October, the question is not whether ACTA would or would not require changes to U.S. law (which is far from clear), but rather, whether the U.S. Executive Branch (of which the USTR is a part) has constitutional authority to negotiate and enter into an agreement dealing with issues within the powers delegated exclusively to Congress under the Constitution, like the power to make new IP laws:

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.

This is more than just an academic question. If ACTA were characterized as a treaty, it would need approval of two-thirds of the Senate before it could be ratified. As Congressional Representative Darrell Issa stated on March 6, when he posted the text of ACTA on his KeepTheWebOpen platform for public comment, the decision to negotiate ACTA as a sole executive agreement can be seen as a power grab by the U.S. executive branch, to bypass Congress’ constitutional power over international commerce and intellectual property law.

Not satisfied with the response he received last year, in January, Senator Wyden asked the State Department for its analysis of why the USTR’s negotiation of ACTA complies with US constitutional law.

The Legal Advisor to the State Department, Howard Koh, responded to Senator Wyden on March 6. His letter implied that Congress had authorized the Executive to negotiate ACTA in response to the 2008 Prioritizing Resources and Organization for Intellectual Property Act.

The ACTA was negotiated in response to express Congressional calls for international cooperation to enhance enforcement of intellectual property rights. Congress has passed legislation explicitly calling for the Executive Branch to work with other countries to enhance enforcement of intellectual property rights. For example, the Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403, codified at 15 U.S.C. 8113(a), calls for the Executive Branch to develop and implement a plan aimed at ‘eliminating ..international counterfeiting and infringement networks’ and to ‘work[] with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.’ The ACTA helps to answer that legislative call.

The U.S. Trade Ambassador followed suit at a hearing in the U.S. Senate’s Trade Subcommittee on 7 March. Ambassador Kirk quoted from the State Department’s letter, suggesting that Congress had authorized the Executive to negotiate ACTA, and stated that ACTA was in fact already binding on the United States. By implication, Congress has no role in reviewing and approving ACTA.

As others have noted, these statements were interesting for several reasons. First, they contradicted previous statements from the USTR that ACTA does not create a binding obligation on the United States. That makes us wonder whether something has changed, or whether the previous statements were made without internal U.S. government legal vetting.

Second, in citing the PRO-IP Act of 2008, the State Department’s letter highlights the haphazard and unusual way in which ACTA has been concluded. The letter from the State Department suggests that ACTA came about to help “answer the legislative call” of the PRO-IP Act, even though ACTA was announced the year before, in October 2007. Although the State Department’s letter stopped short of calling ACTA a Congressional-Executive Agreement, it certainly seemed intended to give that impression. But outside of the clear terms of the PRO –IP Act, it would be misleading to suggest that Congress gave the Executive full rein to enter into an international agreement with broad IP enforcement powers that would restrict Congress from engaging in domestic reform of controversial parts of U.S. law. ACTA also includes a new ACTA Committee that will have the final say on ACTA’s implementation in national law. By enacting the PRO-IP Act, did Congress intend to hand power to determine what should be in US law to the new non-elected ACTA Committee? We suspect many Congressional members would find this problematic, adding to the impression that the PRO-IP Act was a justification found after the fact.

Senator Wyden was obviously not satisfied with the State Department’s response either. On March 19 he tabled several amendments to the Jumpstart Our Business Startups Act (H.R. 3606). Although they were ultimately not adopted due to the short timetable for Congressional review of that Bill, the first amendment would have prevented ACTA from going into force “without the formal and express approval of Congress.”

In February, EFF submitted a FOIA request to the U.S. State Department, seeking a copy of the “Circular 175” memorandum for ACTA, and the accompanying Memorandum of Law. As the State Department’s website states, the Circular 175 procedure is the way that the State Department “seeks to confirm that the making of treaties and other international agreements by the United States is carried out within constitutional and other legal limitations, with due consideration of the agreement’s foreign policy implications, and with appropriate involvement by the State Department.”

The State Department is required to prepare these documents for all treaties and other international instruments that bind the United States as a matter of international law under 22 CFR Part 181. American University’s PIJIP also submitted a FOIA request for these documents in March 2012.

No agencies can conclude an international agreement in the name of the United States without first consulting with the State Department. The determination of whether an agreement is an international agreement for this purpose must be made by the Office of the Legal Advisor to the State Department (and not the USTR).

Circular 175 memoranda must be accompanied by a Memorandum of Law prepared by the Office of the Legal Advisor in the State Department. The Memo of Law generally includes the following information:

A discussion and justification of the designation given to the proposed agreement (treaty vs. executive agreement);
An explanation of the legal authority for negotiating and/or concluding the proposed agreement, including an analysis of the Constitutional powers relied upon as well as any pertinent legislation;
An analysis of the issues surrounding the agreement’s implementation as a matter of domestic law (e.g., whether the agreement is self-executing, whether domestic implementing legislation or regulations will be necessary before or after the agreement’s execution).

The State Department’s analysis of these issues for ACTA should be particularly interesting, given the significant ongoing controversy about ACTA’s constitutionality.

More than ever before, the constitutionality of ACTA is a matter of great importance for citizens of the U.S. and of European ACTA negotiating countries.

We’re expecting a response from the State Department tomorrow. As we did with our previous ACTA FOIA lawsuit (Click on Documents Tab), EFF will make any information we obtain under the FOIA request available on our website, to better inform the public dialogue about ACTA that is currently underway on both sides of the Atlantic Ocean.