EFF analyzes the legal creepiness of ACTA, the secret copyright treaty

The Electronic Frontier Foundation’s international policy crimefighting duo, Eddan Katz and Gwen Hinze, have published a scholarly article analyzing the secret Anti-Counterfeiting Trade Agreement in light of US law and policy. Called “The Impact of ACTA on the Knowledge Economy,” it was recently published in the Yale Journal of International Law, and constitutes a fantastic, reference-heavy resource for understanding just how creepy it is that the Obama administration is sneaking around behind Congress’s back (not to mention the backs of the American public) to create a privacy-invading, internet-breaking trade agreement that the US will be bound to bring into its law.

In brief, the ACTA process has been deliberately more secretive than customary practices in international decision-making bodies to evade 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. Because of a loophole in democratic accountability on sole executive agreements, the Office of the USTR can sign off on an IP Enforcement agenda without any formal congressional involvement at all. 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. But the constraint of coloring within the lines of US law, as one anonymous trade official described it, is a fragile linchpin upon which the weight of public trust and democratic legitimacy is bearing down.

Stopping the ACTA Juggernaut