In the midst of last week’s protests against the Stop Online Piracy Act (SOPA) and its Senate version, the Protect IP Act (PIPA), I suggested that “[w]e’re fighting an uphill battle” against the powerful forces that want to censor the internet in the name of anti-piracy. Since then, many pundits and bloggers have been striking a triumphalist note now that both SOPA and PIPA appear to be dead in the water. But the best rule of thumb when you think you’ve beaten those who would erase our civil liberties is to reject complacency and assume that you haven’t. When they look like they’ve lost they’re usually just regrouping. The recent MegaUpload bust should prove that.
But if you’re still not convinced, you probably haven’t heard of the Anti-Counterfeiting Trade Agreement (ACTA). The U.S. Trade Representative’s office declares ACTA “the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.” A 2008 report from the Electronic Frontier Foundation makes clear that ACTA would accomplish at an international level what SOPA/PIPA were supposed to accomplish here in America. We, along with eight other nations, signed ACTA on October 1, 2011.
If you haven’t heard of ACTA before, here are five things you need to know:
1. We don’t know very much about ACTA because the negotiation process was shrouded in secrecy. As the EFF report notes, ACTA was negotiated outside normal multilateral venues such as the World Intellectual Property Organization and the World Trade Organization. It appears that ACTA’s secrecy was a deliberate attempt to exclude both the citizens of the signatory nations and the citizens of developing nations from the negotiation process. The Obama administration has shielded the text of ACTA from public scrutiny, insisting that ACTA is “classified in the interest of national security.”
2. We do know that ACTA is SOPA/PIPA reborn. According to the EFF report, industry groups — presumably the same ones who have been backing SOPA/PIPA — want “new legal regimes to ‘encourage ISPs to cooperate with rights holders in the removal of infringing materials.’” Knowing what we know about SOPA/PIPA, it’s not hard to imagine exactly what those new legal regimes would entail. Industry groups like the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) want internet censorship and they mean to sneak it in through the back door with ACTA.
3. Although excluded from the negotiation process, developing nations could have ACTA forced upon them. From an international perspective, one of the most odious aspects of ACTA is that it will likely be forced upon developing nations who were excluded from the negotiation process. As the EFF report notes, the nations that have signed ACTA will no doubt make its provisions mandatory in future trade agreements with other nations. This means that nations who want to trade with ACTA’s signatories will have to accept its provisions without having had any input during the agreement’s negotiation. Refusal to accept ACTA’s provisions, meanwhile, will likely be used as pretext for protectionism.
4. According to the U.S. Trade Representative’s office, ACTA is already in effect without congressional authorization. That’s right. The Obama administration claims that ACTA is already in effect without so much as a hearing in a congressional committee. Why? Because the executive branch has unlimited power, of course!
5. President Obama’s opposition to internet censorship legislation was a ruse. Those of us who have followed the Obama administration closely were extremely skeptical when it announced that the president wouldn’t support SOPA/PIPA. Having just signed a bill that would empower him to indefinitely detain American citizens, how could the president really be all that concerned about internet censorship? Now we have our answer: He wasn’t. In his view, ACTA already gives him the power to do exactly what the MPAA and the RIAA want. Opposing SOPA/PIPA gave him an opportunity to look good among the civil libertarians in his progressive base without actually defending civil liberties.
What ACTA tells us is that, far from being won, the fight against internet censorship in the name of anti-piracy may have been lost in October of last year. But rather than despairing, the same activists who were involved in last week’s protests should regroup and demand that Congress act immediately to repeal ACTA. Whether the Obama administration actually has the authority to enact a trade agreement of this importance without congressional authorization is a question for the courts. But what is unquestionably true is that Congress has the authority to stop ACTA in its tracks. We should demand nothing less than that.