On Thursday, the fifth and final European Union Parliamentary committee voted to reject the Anti-Counterfeiting Trade Agreement (ACTA). This signifies a major blow to ACTA, but its standing in the EU still comes down to the European Parliament vote scheduled during the first week of July. After this final vote decides the agreement’s adoption in Europe, however, the future of ACTA for the rest of the signatory countries unfortunately remains cloudy.

Anti-Counterfeiting Trade Agreement is a plurilateral agreement designed to broaden and extend existing intellectual property (IP) enforcement laws to the Internet. While it was only negotiated between a few countries, it has global consequences. First of all, it will create new rules for the Internet, and second, its standards could be applied to other countries through the U.S.’s annual Special 301 process. Negotiated in secret, ACTA bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens. Worse still, the agreement creates a new global institution, an "ACTA Committee", to oversee its implementation and interpretation that will be made up of unelected members with no legal obligation to be transparent in their proceedings. Both in substance and in process, ACTA embodies an outdated top-down, arbitrary approach to government that is out of step with modern notions of participatory democracy.

Thursday’s decision came from the most powerful of the five European Parliament committees, the International Trade Committee (INTA). It followed four other committee votes recommending the rejection of ACTA. These Committees, consisting of Members of European Parliament (MEPs) elected to these seats, are heavily influential on parliamentary positions on proposed legislations and resolutions. The current Rapporteur for ACTA, David Martin, who led the investigation on the impact and soundness of this agreement for the entire European Parliament, also found that ACTA needed to be rejected on the grounds that the agreement could undermine civil liberties and compel Internet service providers to act as “Internet police.”

While these recommendations for rejection substantially lessen the prospect of ACTA’s approval, the final step in the ratification process still lies in the hands of the MEPs. They are scheduled for a full parliamentary vote on July 3 or 4 to decide whether to adopt or reject the agreement. There were rumors preceding the INTA’s Thursday vote that it would be held in secret, at the behest of the European Commission. If the European Parliament’s final vote is held in secret, as ACTA proponents desire, the MEPs may be able to adopt this grossly unpopular agreement without facing any direct political consequences.

If ACTA were to fail in Europe, what would that mean for the rest of the eight signatory countries? Would ACTA still trudge along toward implementation in those countries? Unfortunately, the reality is that we truly don’t know. When asked about this issue last month at a State Department meeting with consumer rights groups, U.S. government representatives did not give a definitive answer. They claimed vaguely that they are “still looking into it” and that counterfeiting is a global issue that would not necessarily have to involve the EU. Sean Flynn from American University is optimistic, however:

The rejection of ACTA in the EU will likely end the prospects of the agreement going to effect anywhere. The robust activity in the EU Parliament is in stark contrast to the U.S. where the administration is not even seeking the Congressional vote the Constitution requires to ratify the agreement.

This could be true if the U.S. government still considered ACTA a “trade agreement,” which is an important classification that requires Congressional approval before it is legally binding in the U.S. However, the U.S. Trade Representative continues to call it a “sole executive agreement”, which means that the President can conclude this agreement without Congress ever reviewing or approving the agreement. In order to designate ACTA as a "sole executive agreement", the State Department had to follow certain procedural steps that consider the agreement's foreign policy implications and ensure that it was carried out “within constitutional and other legal limitations". EFF sent a Freedom of Information Act (FOIA) request to see whether the State Department had documented these Constitutionally-required steps – and agency responded that they had no such documents.

This is just as it sounds: the State Department is bound by the Constitution to follow certain steps if it wants to bypass Congress and designate ACTA as a “sole executive agreement” – but so far, it hasn’t fulfilled the legal requirements. Simply put, it is an unconstitutional power grab by an unaccountable Executive Branch agency. For now, it’s up to members of the Senate Finance Committee to protect the fundamental separation of powers embodied in the U.S. Constitution, and for the public to continue to be alert to this dangerous IP agreement that has skirted, and continues to skirt, democratic processes for international rulemaking.

It will be a huge victory for digital rights and the Internet at large if the European Parliament rejects this toxic international IP agreement. However, the EU’s rejection of ACTA does not necessarily mean it has been defeated for all other nations that have already signed on to the agreement. While this may sound discouraging, there is still hope. We cannot ignore how fundamentally undemocratic the process has been in drafting ACTA, especially given that its constitutionality in the U.S. is highly dubious. So even if the fight against ACTA continues after next week’s vote, there is still opportunity to challenge its global implementation.


For more updates on the European Parliment's vote on ACTA next week, visit:

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