Things aren't looking good for the American public. While Americans generally love the idea of being tough on crime, I doubt grandmothers want to ardently police the online habits of their grandchildren. But surprise, surprise, the negotiators hammering out the details on the Anti-Counterfeiting Trade Agreement (ACTA) have placed a three-strikes Internet ban on the agenda. This move essentially threatens users with Internet death if anyone uses their connection for ill. This is not a good sign.
Perhaps even more telling, when the USTR was questioned about these secret policies, he issued a jejune non-denial, claiming that there is a "misperception that this agreement will focus mostly or exclusively on copyright infringement in the digital environment." This seems deliberately obtuse. If ACTA is an end-around to introduce draconian IP policies, I don’t much care if the draconian provisions make up only a small percentage of the agreement. Instead, I am worried that these provisions exist at all. It is pointless to discuss the relative ratio of sentences devoted to true counterfeiting and sentences devoted to stripping Internet users of access or encouraging ISPs to violate consumer privacy. Rather than telling me what the agenda of ACTA isn’t, how’s about you answer the direct questions of United States Senators? When lobbyists and the USTR insist that ACTA won’t change laws very much, I feel like I’m taking crazy pills. Of course it changes the law, why else would it need to be negotiated in secret and why else would it attract so much industry attention and support.
I won’t rehash why I think these secret negotiations are asinine or why any three-strikes plan would result in collective punishment. Instead, let’s explore the mechanism that the USTR and the administration will use to force the provisions of ACTA onto an unwilling populace–the Executive Agreement. Let's also ponder the potential reaction this procedure will arouse.
Executive agreements essentially give the President a means to unilaterally control the foreign relations of the United States. Presidents have historically used accords with foreign nations to conclude international pacts without giving the Senate a meaningful opportunity to interfere. See The Destroyers for Bases Deal, Yalta, The Vietnam Peace Agreement of 1973. The constitutionality of this tool is somewhat dubious: the Constitution does not mention executive agreements, nor do the framers discuss the concept in either the constitutional convention or the Federalist Papers. The judiciary has defended the use of congressional-executive agreements*, provided that these do not conflict with the Constitution. See Reid v. Covert, 354 U.S. 1 (1957). But hopefully the Court would be more likely to strike down unilateral Executive Agreements. But see U.S. v. Pink 315 U. S. 203, 229 (1942). However, the prospect of an executive agreement is rarely an issue because the mere presence of an existing agreement places an incredible amount of pressure on Congress to go along with the deal.
There have been some congressional efforts to restrain the use of executive agreements and to reestablish the primacy of Congress’ Treaty Power. In 1954, the Bricker and George Amendments, which would have restricted the president’s power to craft executive agreements, failed to clear the Senate, the latter by only a single vote.
While the President has the power to utilize executive agreements, he is not to keep them secret. Eighteen years after the Bricker and George amendments barely failed, and only a few years after the discovery of covert executive agreements with Laos and South Korea, Congress passed the Case Act of 1972. The Act requires the Executive to disclose within 60 days the text of “any international agreement” in which the United States is involved. But this does little to redress the problem of unilateral executive agreements because presidents routinely ignore the statute.
It seems that Congress is only willing to question the use of executive agreements after some disastrous policy outcome: Vietnam provided the last real impetus. Perhaps it is possible that ACTA could provide a sufficiently embarrassing debacle. When you criminalize a widespread activity, when you usher in a policy that turns parents into police, when you deny citizens access to their main source for knowledge, entertainment, and speech, you must expect some sort of blowback.
So to sum up: I am terrified that ACTA is going to be as monstrous as I believe it to be and that the United States will join the agreement by executive fiat. But maybe some good will come out of this—maybe the deep unpopularity of ACTA (trust me, people want their Internet) will force Congress to finally reassert its long neglected Treaty Power and curtail the use of executive agreements. While the Congress has deferred to the President in matters of war, there is no need to maintain such deference if ACTA empowers national ISPs to sever domestic Internet connections. None of this worrying would be necessary if the administration would simply (1) make the ACTA negotiations public, and (2) agree to submit ACTA to the Senate for formal ratification as a treaty. The longer this remains secret, the more users will worry.
Let your Senators and Representative know that this pointless secrecy is unacceptable. Perhaps your demand will inspire them (either through pride or fear) to reclaim their treaty power and back out of a deal to which they never agreed.
(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He thinks he should trade his car for whatever is behind door #2.)
*When Congress later signs onto an agreement, which is not a formal treaty, the result is a congressional-executive agreement.