The Anti-counterfeiting Trade Agreement (Acta) agreed this week may be subject to a constitutional challenge in the US, but it may expose the US to retaliatory action for common online copyright infringements, says a leading US intellectual property academic.
Sean Flynn, associate director of the programme on information justice and intellectual property at the Washington College of Law, told Computer Weekly the Acta process was based on the "bold and untested theory" that the president can bind the US to an agreement within Congress's constitutional powers without congressional consent.
Acta negotiators this week released a final text of the agreement. This has gone forward for legal review and ratification by the participating countries.
Flynn said Acta implicated Congress's Article I, Section 8 powers, including "to regulate commerce with foreign nations" and "to promote the progress of science and useful arts" through intellectual property protections.
"Because the president lacks any sole executive authority in these areas, the entry into Acta by a sole executive agreement will be unconstitutional," Flynn said.
This means the agreement could not have any impact on US domestic law but it would bind the US internationally.
"It will expose us to retaliation by others for the areas of law where we do not provide ACTA-mandated remedies, including for certain infringements of copyright that take place on the internet," he said.
Flynn warned Acta would "promote regimes in other countries to monitor internet users and disconnect people from this essential service for alleged copyright infringement, without any due process and without court supervision."
He said Acta would also lead to more border searches and seizures by customs officials.
"It requires states to authorise border seizures based on the minimum possible (so called "prima facie") evidence, on an "ex officio" basis (meaning that no-one complained) and with no required due process of law or court intervention. And such seizures are requires even for 'small consignments'," he said.
Flynn also referred to an October 2010 letter from 75 academic lawyers to president Barak Obama, accusing him of reneging on electoral promises to run an open and transparent administration through his handling of the Acta process.
"The administration's determination to hide Acta from the public creates the impression that Acta is precisely the kind of backroom special interest deal, undertaken in this case on behalf of a narrow group of US content producers, and without meaningful input from the American public, that you have so often publicly opposed," it said.
The academics called for, among other things
the US not to sign Acta until the public had had a chance to take part,
a "meaningful open, on-the-record public hearing on the draft text", the results to determine changes to the agreement, and
the administration to renounce Acta's status as a "sole executive agreement" so that Congress could approve the final text.