Thursday, January 26, 2012
Months before the debate about Internet censorship raged as SOPA and PIPA dominated the concerns of web users, President Obama signed an international treaty that would allow companies in China or any other country in the world to demand ISPs remove web content in the US with no legal oversight whatsoever.
The Anti-Counterfeiting Trade Agreement was signed by Obama on October 1 2011, yet is currently the subject of a White House petition demanding Senators be forced to ratify the treaty. The White House has circumvented the necessity to have the treaty confirmed by lawmakers by presenting it an as "executive agreement," although legal scholars have highlighted the dubious nature of this characterization.
The hacktivist group Anonymous attacked and took offline the Federal Trade Commission's website yesterday in protest against the treaty, which was also the subject of demonstrations across major cities in Poland, a country set to sign the agreement today.
Under the provisions of ACTA, copyright holders will be granted sweeping direct powers to demand ISPs remove material from the Internet on a whim. Whereas ISPs normally are only forced to remove content after a court order, all legal oversight will be abolished, a precedent that will apply globally, rendering the treaty worse in its potential scope for abuse than SOPA or PIPA.
A country known for its enforcement of harsh Internet censorship policies like China could demand under the treaty that an ISP in the United States remove content or terminate a website on its server altogether. As we have seen from the enforcement of similar copyright policies in the US, websites are sometimes targeted for no justifiable reason.
The groups pushing the treaty also want to empower copyright holders with the ability to demand that users who violate intellectual property rights (with no legal process) have their Internet connections terminated, a punishment that could only ever be properly enforced by the creation of an individual Internet ID card for every web user, a system that is already in the works.
"The same industry rightsholder groups that support the creation of ACTA have also called for mandatory network-level filtering by Internet Service Providers and for Internet Service Providers to terminate citizens' Internet connection on repeat allegation of copyright infringement (the "Three Strikes" /Graduated Response) so there is reason to believe that ACTA will seek to increase intermediary liability and require these things of Internet Service Providers," reports the Electronic Frontier Foundation.
The treaty will also mandate that ISPs disclose personal user information to the copyright holder, while providing authorities across the globe with broader powers to search laptops and Internet-capable devices at border checkpoints.
In presenting ACTA as an "international agreement" rather than a treaty, the Obama administration managed to circumvent the legislative process and avoid having to get Senate approval, a method questioned by Senator Wyden.
"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?" asks TechDirt. "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.".
26 European Union member states along with the EU itself are set to sign the treaty at a ceremony today in Tokyo. Other countries wishing to sign the agreement have until May 2013 to do so.
Critics are urging those concerned about Obama's decision to sign the document with no legislative oversight to demand the Senate be forced to ratify the treaty.