When sites like Wikipedia and Reddit banded together for a major blackout January 18th, the impact was felt all the way to Washington D.C. The blackout had lawmakers running from the controversial anti-piracy legislation, SOPA and PIPA, which critics said threatened freedom of speech online.
Unfortunately for free-speech advocates, these pieces of legislation are not the only laws which threaten an open internet.
Few people have heard of ACTA, or the Anti-Counterfeiting Trade Agreement, but the provisions in the agreement appear quite similar to – and more expansive than – anything we saw in SOPA. Worse, the agreement spans virtually all of the countries in the developed world, including all of the EU, the United States, Switzerland and Japan.
Many of these countries have already signed or ratified it, and the cogs are still turning, with the final real fight playing out in the EU parliament.
The treaty has been secretly negotiated behind the scenes between governments with little or no public input. The Bush administration started the process, but the Obama administration has aggressively pursued it.
Indeed, we signed ACTA in 2011.
Here’s a quick video primer:
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According to critics, ACTA bypasses the sovereign laws of participating nations, forcing ISP’s across the globe to act as internet police.
Worse, it appears to go much further than the internet, cracking down on generic drugs and making food patents even more radical than they are by enforcing a global standard on seed patents that threatens local farmers and food independence across the developed world.
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Despite ACTA’s secrecy, criticism of the agreement has been widespread. Countries like India and Brazil have been vocal opponents of the agreement, claiming that it will do a great deal of harm to emerging economies.
I’ll have more on the agreement as it emerges. But to briefly sum up, according to critics of the agreement:
*ACTA contains global IP provisions as restrictive or worse than anything contained in SOPA and PIPA.
*ACTA spans virtually all of the developed world, threatening the freedom of the internet as well as access to medication and food. The threat is every bit as real for those countries not involved in the process as the signatories themselves.
*ACTA has already been signed by many countries including the US, but requires ratification in the EU parliament.
*ACTA was written and hammered out behind closed doors. While some of the provisions have been taken out of the final US draft, plenty of unknowns still exist. It’s not nearly clear enough how the agreement will effect US laws.
Nor is this the only international agreement in the works.
According to the Electronic Frontier Foundation, there are “other plurilateral agreements, such as the Trans Pacific Partnership Agreement (TPP), which contains a chapter on IP enforcement that would have state signatories adopt even more restrictive copyright measures than ACTA. Similarly, negotiations over TPP are also held in secret and with little oversight by the public or civil society. These initiatives, negotiated without participation from civil society or the public, are an affront to a democratic world order. EFF will remain vigilant against these international initiatives that threaten to choke off creativity, innovation, and free speech, and will stand with EDRi, FFII, La Quadrature du Net and our other EU fellow traveller organizations in their campaign to defeat ACTA in the European Parliament in January.”
Sen. Ron Wyden (D-OR) has questioned the power of the executive to enter into the agreement.
“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,” he wrote. “But regardless of whether the agreement requires changes in U.S. law … the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.”
Now it is quite possible that the ACTA we signed in 2011 will not effect US laws. It’s difficult to say at this point given the lack of transparency. It’s also hard to say how the coordination between governments would effect existing IP law. Probably the biggest problem with this trade agreement is how little we all know. There’s something worrisome about governments pursuing these sorts of agreements behind closed doors – even if, at the end of the day, they don’t actually effect existing US laws.
We should all be worried about the implications of this and other trade agreements on the global economy, the ripple effects of which would reach all of us regardless of geographical location.
Remember, when one of these bills or trade agreements falls, another rises up to take its place. ACTA has been in the works for several years. SOPA almost passed into law unopposed. The threat to civil society isn’t going away. Honest, open, and transparent regulations written to stem the flow of pirated materials can be crafted in the light of day with input from industries outside of entertainment.
Update: An earlier version of this post claimed the act required Senate ratification. Reports are conflicting, but it appears this is not the case. ACTA has been signed as a sole executive agreement, meaning the president’s signature on this is all it takes for it to become law, though Sen. Ron Wyden has questioned the constitutionality of that move on the part of the administration.
Cory Doctorow describes the agreement as “a secretly negotiated copyright treaty that obliges its signatories to take on many of the worst features of SOPA and PIPA. The EU is nearing ratification of it. ACTA was instigated by US trade reps under the Bush Administration, who devised and enforced its unique secrecy regime, but the Obama administration enthusiastically pursued it.”
While this may be the case, it is much more difficult to assess the actual impact of the bill on US law. It may end up having a negligent effect on US IP law and internet freedom. It may have a slow impact that creeps up over the years. The lack of transparency has made it very difficult to assess, especially given the numerous governments involved. Whether or not it represents as great a threat as its critics claim, it is always worrisome when these sorts of agreements are worked out without public input.
From the EFF update on developments in ACTA in 2011:
While Internet blacklist bills exploded into the domestic U.S. Congressional scene this year, foreboding international forces are also posing new threats to the Internet around the world. The most prominent of these is the Anti-Counterfeiting Trade Agreement (ACTA), signed by the U.S. in 2011, which would strengthen intellectual property enforcement norms between signatory countries, handing overbroad powers to the content industry to preserve their antiquated business model. ACTA was widely criticized for being negotiated in secret, bypassing national parliaments and the checks and balances in existing international organizations. One of the most disheartening features of this plurilateral agreement  is that it creates a new global IP enforcement institution to oversee its implementation.
Eight of the 11 ACTA participating countries have signed the agreement and the battle now mainly lies in the European Union. This week, the Council of the European Union—one of the European Union’s two legislative bodies, composed of executives from the 27 EU member states—adopted ACTA during a completely unrelated meeting on agriculture and fisheries. It is now up to the European Parliament, the EU’s other legislative body, to give consent on ACTA in the coming year. The European Parliament Legal Affairs Committee has discussed the agreement on December 20th, and released its very guarded opinion, summarily stating: “It appears that the agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.” This opinion is not surprising, given how the Committee newsletter [doc] published a few days prior spoke highly of ACTA, hinting strongly that it is supportive of its signature.
But to be quite honest, the fog surrounding all of this is pretty thick still. I’ll try to shine more light on it in future posts.