Obama Administration: ACTA Is Binding & Don't Worry Your Pretty Little Heads About TPP

by Mike Masnick
Techdirt
Mar. 08, 2012

We've covered how Senator Wyden has been pressing the administration on ACTA and TPP concerning the process behind both agreements. The State Department has now responded by admitting that ACTA is, in fact, binding on the United States.

Under international law, the ACTA is a legally binding international agreement. By its terms, the ACTA enters into force when at least six parties have deposited instruments indicating their consent to be bound. Accordingly, once in force for the United States, the ACTA will impose obligations on the United States that are governed by international law. As in the case of other international agreements, it is possible that Congress could enact subsequent changes in U.S. law that are inconsistent with U.S. international obligations.

That's interesting, because it's what many people had assumed (and what other signatories to ACTA have been saying), but actually contradicts earlier statements from the USTR suggesting that we can ignore parts of the agreement that we don't like or which conflict with existing US law. It also means that, as we've been warning, ACTA dangerously restricts Congress from passing new laws that could push back on some of the worst aspects of copyright law. Sure, Congress could ignore ACTA, but there would be substantial problems if it were to do so. In other words, ACTA is binding on the US under international law... but not under US law. Of course, international law trumps US law here, so that's kind of meaningless.

And yet, the administration still insists that it can pass and ratify ACTA without Congressional approval. In the same letter, the State Department says that it doesn't see any problem in having the President approve ACTA without Senate ratification, because it doesn't require any changes today. First of all, it's not entirely clear if that's true, and there are some areas where it is believed current ACTA provisions likely come into conflict with US law (though the USTR squeezes around this by saying that all depends on how you interpret the phrases in ACTA -- which seems like an issue of piss poor drafting of the agreement by the USTR).

Either way, the claim that this does not need Senate ratification appears to be incorrect. The fact that it is restricting Congress's ability to act on an issue which is Congress's mandate (not the administration's) suggests that there is simply no way that the President can sign ACTA without it being ratified by Congress. Even if it doesn't force Congress to change laws today, it does unquestionably hinder Congress' ability to change laws in the future.

Perhaps even more ridiculous is that earlier today, USTR Ron Kirk appeared before a Senate committee on trade issues, where Senator Wyden was able to ask Kirk about both ACTA and TPP. The answers were quite disturbing, and show the rather imperialistic attitude that the administration and Kirk in particular have taken on this issue:

After repeating what the State Department said about it being binding, the discussion on TPP is downright ridiculous. Kirk insists that the USTR has been super-transparent on TPP. That's interesting, considering that no documents have been released, no efforts to discuss the document with the public are planned and, in fact, the USTR has planned to keep all background documents on TPP secret until four years after the agreement is ratified.

Wyden points out that the public is clearly up in arms over intellectual property issues, as seen by the response to SOPA and PIPA -- and notes that, currently, the USTR is requiring people to have security clearance to see TPP. He questions what's wrong with having the USTR publicly display what its own proposals are for TPP. He's not saying they should reveal trade secrets or proposals from others -- but make the US's own proposals public. Kirk insists that it's unfair to compare TPP to SOPA and PIPA. That would be a lot more convincing if we could actually see the details, but we can't, since we don't have security clearance and we haven't been "chosen" by the USTR.

In response to the request to put the proposals up publicly on the internet, Kirk insists that if we do that, we'll "never be able to negotiate another trade agreement again" because others wouldn't come to the table. Kirk made this identical argument about ACTA. Of course, later, after the secret documents leaked, we found out that most of the other negotiators wanted the documents public... but it was the US and Ron Kirk who wanted them secret. So I'm sorry, but his claims that others would leave the table and wouldn't negotiate just don't make any sense at all.

Wyden points out, again, that "the norm" for how the public views intellectual property changed on January 18th -- and the public needs to be involved in these debates. He asks Kirk to "throw open the doors" to the USTR so that the TPP negotiation info is a lot more public. Kirk's response is quite bizarre. He talks about the importance of democracy and elections, and letting the elected officials represent the public's interest.

Forgive me for asking, but when did we elect Ron Kirk to head the USTR? He's an appointee, not an elected official. He doesn't represent the public. At all. And that needs to change.