By Sherwin Siy, Deputy Legal Director and Kahle/Austin Promise Fellow, Public Knowledge
The Anti Counterfeiting Trade Agreement, or ACTA, has received a fair bit of attention in the technology press and elsewhere, more so than might have been anticipated by a trade agreement. Its staunchest opponents warn that it threatens basic freedoms of speech and due process, and jeopardizes access to effective medicines around the world. Its most vehement supporters claim that without it, thousands of American jobs will succumb to the whims of pirates and counterfeiters. Academics have raised constitutional concerns about both its process and substance, while the President has offered it up as a tool to "crack down on practices that blatantly harm our businesses." At Public Knowledge, we remain gravely concerned about its potential effects on the way we access the Internet and use the media we buy.
So what is this ACTA? A simple trade agreement? A nefarious circumvention of domestic law and legislative procedure? Something in between? And what does it actually do? The fact that such basic questions about ACTA exist and persist points to one of its most prominent and central flaws: its lack of transparency. Only the basics are offered on the U.S. Trade Representative's (USTR) website-that it is to be a "plurilateral" trade agreement between a number of countries, designed to combat the infringement of intellectual property. More recently released "fact sheets" from the USTR provide outlines for the agreement's topics of discussion, including proposals on civil and criminal enforcement, border measures, and Internet issues. (The website also features letters of endorsement for the as-yet undisclosed agreement from proponents.). Importantly, ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval.