The most controversial measures of concern to Internet users in the final version of the international Anti-Counterfeiting Trade Agreement (ACTA) for most Internet users are 1) that signing governments pledge to allow copyright holders a way to request, under court warrant, personal information about a suspected infringer from that person’s ISP; 2) that means will be provided for a rights holder to legally pursue someone suspected of circumventing rights management technologies; 3) that goods crossing countries’ borders may be made subject to search and seizure if they’re suspected to contain infringing material, with exceptions provided for things like personal luggage.
President Obama signed this treaty on October 1, 2011, effectively ratifying it on behalf of the United States.
What ACTA is not
This treaty is not a law, nor is it a bill or an act, like SOPA or PIPA. Although the treaty has already been signed in the U.S., ACTA is not a law that can be followed or broken by a person. A country may break the treaty, but you can’t be arrested for an ACTA violation.
By far, the most controversial measures that were considered for the treaty were either already stricken or were voted down for inclusion in a draft. One such measure would have had governments narrow their provisioning of “safe harbor” for Internet Service Providers only after they implemented certain monitoring tools and/or filters for preventing the distribution of unauthorized material. Another would have compelled governments to institute “three strikes” laws, similar to one briefly enacted by France in 2009 but later struck down by its constitutional council, which would ban an individual’s use of the Internet after three instances of infringement or piracy.
An alternative phrasing for the measure that narrowed the definition of safe harbor would have compelled governments to mandate that ISPs must monitor traffic. Again, this measure and the other two listed above are no longer part of the treaty.
Most importantly, they were stricken after the European Union’s vigorous objection to the treaty negotiations between countries being held in secret. Actually, trade negotiations have historically almost always been held in secret. However, the EU’s objection led to the veil of secrecy being lifted from the process in February 2011. At that time, Europe could publicly object to the inclusion of those measures, which eventually were withdrawn from consideration.
Is ACTA the law or not?
Yes, the President signed the treaty, but that’s different from signing a bill into law. Despite how some have strictly interpreted the Constitution (specifically Article VI, paragraph 2), there are U.S. laws today on the books that have not been changed or rendered null by ACTA, even though they appear to contradict the treaty’s terms. There are “fair use” exemptions to U.S. copyright law, for instance, that make it legal for anyone to circumvent copy protection (“rights management”) schemes for various personal reasons. A teacher, for example, may make a copy of rights-protected media if he uses it in education. If you have a legal movie, and you need to do something to it to make it play in any device you legally own, that’s legal too. If you’re a security engineer, and you’re testing a copy protection scheme to see if and where it breaks, that’s legal. These exemptions remain U.S. law, and as judges interpret the law presently, no treaty can override that unless Congress says so.
Which would have made Congress’ participation in the ratification process somewhat helpful. The U.S. officially ratified ACTA without consulting Congress – which some believe to have been an awkward step because Congress would most likely have consented, not objected. Days after the ratification, Sen. Ron Wyden (D – Ore.) wrote a public letter to Pres. Obama expressing his frustration over the President’s appearing to have circumvented the Constitution. “It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered,” Sen. Wyden wrote, “without legislation if the agreement requires no change in U.S. law. 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.”
Indeed, the language of Article II, Section 2, paragraph 2 reads states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” That would appear to signify that a Senate majority must approve first.
However, the very fact that the Senate was not consulted and did not vote on the treaty may, if the matter ever comes before a judge, be declared the reason why ratifying ACTA did not surmount existing law. A treaty can surmount law, but only after Senate approval. Conceivably, the Senate could take up the ACTA matter on its own time. But if it were then to approve or consent to the President’s ratification (as though he had not already done so), then quite possibly, the current copyright exemptions could be put to the test, perhaps by way of a federal suit by rights holders against the U.S.
The situation in Europe is very different. There is a nebulous concept of the body of collected law among the various member nations through the centuries, called the acquis communitaire. If you put everything together ever written or adjudicated or declared that’s consistent with the modern day, that’s the acquis.
One of the European Union’s strongest objections to ACTA, which became public in February 2011, was that it would surmount the acquis – it would effectively invalidate the existing laws of member nations. This was one of the strongest reasons why the treaty was “de-fanged” – that the “three strikes” mandate, among others, was removed. After that happened, an independent study commissioned by the EU Parliament declared that the treaty did not violate the acquis’ boundaries – that Europe could effectively implement the treaty because it did not change the law.
To quote: “This study finds that, in the case of the EU, ACTA does not entail such a significant shift in the EU Acquis, but that, while it is not fundamentally in conflict with the TRIPS Agreement [the existing World Trade Organization document on intellectual property rights], it is significantly more stringent and rightholder friendly than the TRIPS Agreement. Many of the substantive issues that raised concerns in the early position papers have been addressed or are entirely absent from the final agreed text. On the other hand ACTA also does not appear, on its own, to have a significant impact on the EU’s innovative capacity or its global competitiveness. This is partly due to the relatively modest scale of the outcome, as well as the fact that ACTA will not require any change in the laws or regulations of significant competitor countries such as Brazil, India and China.”
That finding is perhaps the most important point of all, especially since Poland – an EU member state – ratified the treaty this week. Street protests by ACTA opponents there centered around fears that ACTA would force governments to enable rights holders to implement measures that censor Internet content. This is perhaps the most extreme interpretation of proposed clauses in the treaty that – once again – are no longer present and were not ratified.
The gist of what remains
Among what remains of ACTA is a measure that would give governments worldwide a kind of legal support mechanism should they decide to allow rights holders to seek personal data from ISPs. It does not mandate that they must provide rights holders such means (the verb “shall” has frequently been replaced with “may”), but it gives governments an excuse to do so.
Since the treaty is not law, it cannot stipulate the measures or methods that countries must put in play to enable rights holders to make these requests. And in a way, that’s the problem: Though it mandates that privacy, freedom of expression, and fair process must all be observed when seeking someone’s identity, ACTA does not offer any guidance as to how governments would ensure these rights.
As it stands, the treaty does state that governments “shall” (not “may”) enable legal means to pursue individuals who circumvent copy protection knowing that doing so will lead to infringement. If the findings of the E.U. Parliament study – that the treaty does not override existing laws – apply to the U.S., then ACTA’s implementation does not cancel out the “fair use” exemptions entered into copyright law over the last five years.
At least, so it might appear. However, individuals have lost faith in the largest rights’ holders ability to restrain themselves from testing these laws for loopholes. Universal Music’s false use of a DMCA takedown order last year is just one indicator that, given the right tools, the music industry will test the limits of their mandates.
Most people are not pirates or counterfeiters. I am neither. The protection of our interests may go a long way in helping us to reduce the instances of piracy and counterfeiting through our own positive example. There are valid arguments that treaties and legislation directed mainly towards rights holders, without similar regard for the individuals who would like to respect those rights, are imbalanced and perhaps unfair.
The sad but probable outcome of this final stage of the ACTA debate is that existing countries’ laws will be tested, either by the largest body of rights holders testing the limits of their privileges, or by publicity seekers wearing Guy Fawkes masks – and most likely by both.