[x-pubpol] Obama Administration: ACTA Is Binding & Don't Worry Your Pretty Little Heads About TPP

[Joly MacFie]

http://www.techdirt.com/articles/20120307/13454918027/obama-administration-acta-is-binding-dont-worry-your-pretty-little-heads-about-tpp.shtml


We've covered how Senator Wyden has been
pressing<http://www.techdirt.com/articles/20120126/01545117544/as-ustr-insists-acta-doesnt-need-congressional-approval-wyden-asks-state-dept-second-opinion.shtml>
the
administration on ACTA and TPP concerning the process behind both
agreements. The State Department has now
responded<http://www.scribd.com/doc/84365507/State-Department-Response-to-Wyden-on-ACTA>
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<http://www.techdirt.com/articles/20101025/01382311559/us-basically-says-it-ll-ignore-anything-in-acta-that-it-doesn-t-like-so-how-about-everyone-else.shtml>
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<http://www.youtube.com/watch?v=1IIsK5zPQYw&feature=youtu.be>.
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<http://www.techdirt.com/articles/20091203/1626497186.shtml>
about
ACTA. Of course, later, after the secret documents
*leaked*<http://www.techdirt.com/articles/20100305/1237468441.shtml>,
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.

-- 
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