Here at The Inquisitr we have been covering the whole SOPA, PIPA, and the Blackout of the Web but even before those two extremely flawed bills surfaced we were covering the international treaty commonly referred to by ACTA, even though all the trade organizations (funded by the entertainment industry) did their best to keep secret.
Most recently both James Johnson and H. Scott English wrote about the re-emergence of ACTA as a real matter of concern. The fact is that ACTA is even more insidious that either SOPA and PIPA might have been before they were shelved.
I first started writing about ACTA back in 2010 here at The Inquisitr and have been a vocal opponent of the treaty because it totally bypasses the direct involvement of elected politicians that could be held accountable for their actions. It is because of this problem with accountability that ACTA was never created as “a law” but rather as a “trade treaty” – as I wrote here in April 2010:
So why a trade agreement?
The simple answer to that question is – the laws; and legal rights, are getting in the way.
The entertainment industry has been trying in the US – with a lot of campaign bucks being donated – to get the laws changed to something more in their favor but there is this pesky thing called the Constitution as well as the Supreme Court that keeps getting in the way. While that hasn’t stopped them it has made their task a lot more difficult.
Then you have all those really irritating foreign countries with their own silly laws. They’ve tried in Canada to influence our government by donating as much as they possibly can, by whatever means they can, to favorable political candidates running for office. There influence has also been felt in other countries around the world but in the end – or at least at this point in time the standing laws of those countries are proving more difficult to get around than the entertainment industry would like.
With all these headaches why not find another way to get what you want and not have to deal with these piddling laws which is what the industry has done. You see in the Global Economy trade agreements trump local laws. You might not think so but in reality they do. Just look at any WTO disagreements, in the end the WTO trade agreements will trump local laws – hint: the current battle between the US and Antigua over online gambling.
So rather than have to constantly fight against the constantly shifting landscape of local laws the entertainment industry realized it was much easier to engineer a global trade agreement outside of even the WTO, WIPO and other related world trade organizations typical responsible for this type of thing. By doing so they have in effect created a global trade agreement that could marginalize or replace the WIPO.
Fast forward to today and we suddenly find that an interesting situation has arisen in the Untied States in regards to ACTA. It seems that President signed the ACTA treaty a few months ago, with apparently little or no fanfare, but questions are now being asked by those who do keep a very close eye on this – was Obama even allowed to sign ACTA?
It has been pointed out that any treaty between the US and any other country, which is exactly what ACTA is, requires Senate approval – which ACTA never got. What it did get was a change in semantics where is was now being called an “executive agreement” so that President Obama didn’t need Senate approval.
However, and this is where the constitution comes into play, this “treaty” is about intellectual property (supposedly) and as Mike Masnick at Techdirt points out the president cannot legally sign any intellectual property agreements as an executive agreement and that it must be submitted to the Senate.
That said, even if Obama has declared ACTA an executive agreement (while those in Europe insist that it’s a binding treaty), there is a very real Constitutional question here: can it actually be an executive agreement? The law is clear that the only things that can be covered by executive agreements are things that involve items that are solely under the President’s mandate. That is, you can’t sign an executive agreement that impacts the things Congress has control over. But here’s the thing: intellectual property, in Article 1, Section 8 of the Constitution, is an issue given to Congress, not the President. Thus, there’s a pretty strong argument that the president legally cannot sign any intellectual property agreements as an executive agreement and, instead, must submit them to the Senate.
This is why Senator Wyden has asked the President to explain why Congress has been cut out. Scholars have noted their concern that if allowed, this will open the door to allowing the president to regularly route around Congress on international agreements.
I have said before and I will say it again – the success against SOPA and PIPA is only the opening skirmish of a much bigger war being waged around intellectual property. ACTA has been in the background for sometime but now that SOPA and PIPA have been shelved (temporarily) the fight needs to be now directed against the much more insidious and global version called ACTA.
However the question is now before us .. did President Obama knowingly and intentionally sidestep the US Congress in order to placate the entertainment industry; and in doing this did he break United States Constitutional law?