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Friday, January 27, 2012

Forget SOPA and PIPA. Obama Signed ACTA, Rescuing and Weakening Congress Again

By Rob Kall - opednews.com 



Here's how the system works: There's a bill that big corporations want-- the corporations that pay for the TV ads that win elections. The voters don't want the bill to pass. What's a corporatist congressman or senator to do? The answer, again and again in recent decades, has been to punt and let the president make the decision-- by grabbing power that should have been held by congress.   
This time, President Obama has done it with the issue of protecting intellectual property rights on the internet. He signed an international treaty, ACTA , in October 2011 as an "Executive agreement" rather than having it authorized by congress as a binding agreement, which, by law, must be approved by congress.Techdirt discusses this   at length.  
Last fall, after President Obama signed the US on to the act, Senator Ron Wyden  wrote a letter 
protesting the signing. The letter said, 
Asking why the administration believes the Anti-Counterfeit Trade Agreement (ACTA) does not require Congress's formal approval.  According to legal experts, cited by Wyden, if the USTR ratifies ACTA without Congress' consent it may be circumventing Congress's Constitutional authority to regulate international commerce and protect intellectual property and would therefore represent a significant expansion of the executive branch's authority over international agreements. 
"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," Wyden writes."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."
ACTA makes SOPA and PIPA look like small problems. It allows the most repressive nations to demand that internet service providers (ISPs) remove content or even whole websites on demand. Picture China demanding removal of a website criticizing some policy or action. Google was just about  shut down in China in response to Chinese demands. Imagine if China could have the same chilling effect in the US and the rest of the world. 

The Electronic Freedom Foundation (EFF) opposes  ACTA, saying, 
"ACTA is being negotiated by a select group of industrialized countries outside of existing international multilateral venues for creating new IP norms such as the World Intellectual Property Organization and (since TRIPs) the World Trade Organization. Both civil society and developing countries are intentionally being excluded from these negotiations. While the existing international fora provide (at least to some extent) room for a range of views to be heard and addressed no such checks and balances will influence the outcome of the ACTA negotiations."
and 
"" the same industry rightsholder groups that support the creation of ACTA have also called for mandatory network-level filtering by Internet Service Providers and for Internet Service Providers to terminate citizens' Internet connection on repeat allegation of copyright infringement (the "Three Strikes" /Graduated Response)"
The EFF expresses concern that since ACT will be tied to organizations associated with the World Trade Organization (WTO) then for all countries that become signatories to the WTO or other free trade agreements,  "accession to and implementation of ACTA by developing countries will be a condition imposed in future free trade agreements."
This Opednews.com article reveals more problems with ACTA, here is a small portion of the issues the article lists:
* civil society groups &  developing countries excluded from discussion  during ACTA's development, a classic example of policy laundering
* the treaty will  restrict fundamental civil and digital rights  
* The  negotiations were classified as secret in the US on the grounds of "damage to the national security" 
* Apart from the participating governments, an advisory committee of  large US-based multinational corporations  was consulted on the content of the draft treaty 
* The treaty calls for the creation of a committee to make amendments,  for which  public or judicial review are not required.  
* Industry representatives may have "consultatory input" to amendments
Yesterday, 22 EU Countries   -- most of the European Union, ratified ACTA. 
flickr image  By Unia Polityki Realnej 

The Poles have yet to ratify the agreement. Polish protesters have taken to the streets in protest. 
screenshot from RT TV   of Polish street Protests of ACTA.

Now, the Whitehouse is asking the senate to ratify the agreement. 
It will be a lot easier for the Senate to ratify and accept ACTA as already done deal as an executive agreement, than to pass SOPA and PIPA. That may actually satisfy the big Media firms that have been lobbying for its passage and even threatening to stop donating to Obama if he blocks it. 
But if the Senate does ratify the agreement, avoiding lobbyist and constituent ire, it will be handing over more power to the Executive branch, further weakening the balance of powers established by the constitution, setting further precedent that reduces true democracy in America. 
Last week, Wikipedia, Google and many other websites took a stand in opposition to SOPA and PIPA. Unless a similar stand is taken, educating the public on ACTA, it is likely that the senate will slip ratification in on some low media visibility late Friday afternoon, or during a day of high media activity that draws attention away from it. 
The next sign of ACTA will be when the Justice Department, responding to a DEMAND by China or some other signatory to ACTA, shuts down a website or forces it to pull an article critical of that country, or of some group in that country-- maybe settlers in Israel or an Islamic group in Malaysia. 
It'll be too late then. 
This is not just about ACTA. It's about the continuing pattern of congressional cowardice-- of members of congress allowing, even handing over to the Executive Branch, powers that should be retained and protected by congress. We've seen it with the Libyan war, the rights of corporations related to corporate personhood, and in countless other examples where Bush and Obama used signing statements to neutralize the will of congress-- of the people's elected officials. It's time for this to stop. 


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