United States Signs ACTA Amid Privacy, Secrecy Concerns And Constitutional Questions

The United States, together with several other industrialized nations, has signed a major international treaty designed to enhance global protections against counterfeiting and intellectual property piracy. The treaty, known as the Anti-Counterfeiting Trade Agreement, or ACTA for short, requires signatory nations to enact aggressive intellectual property protection legislation similar to that already in place in the United States. Significantly, the agreement was signed by the U.S. government without Congressional debate or approval.

ACTA has been in the works for more than three years. The agreement was signed recently at a Tokyo signing ceremony by Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea, as well as the United States, and significantly tightens global protections against intellectual property infringement, particularly with respect to copyrights. Three other participants in the negotiating process – the European Union, Mexico, and Switzerland – have not yet signed the agreement. The EU’s absence is notable – despite being negotiated by the European Commission on behalf of EU member states, the agreement itself must still be approved by the European Parliament – and the EU has not yet completed its internal procedures authorizing signature.

ACTA is a voluntary agreement that provides a mechanism for the parties involved to collaborate on increasing effective intellectual property rights enforcement.  ACTA is replete with provisions concerning enhanced criminal enforcement. For example, it requires parties to provide criminal penalties and procedures for willful trademark counterfeiting or copyright or related rights piracy on a commercial scale , and applies criminal penalties to willful importation and domestic use of labels or packaging using an unauthorized trademark, as well as unauthorized copying of cinematographic works from a performance in a movie theater. Countries must include imprisonment and heavy fines among the penalties for such activities.

While ACTA is heavily weighted in favor of rights holders and has received significant support from industry groups representing trademark and copyright owners, critics have also made their voices heard. One significant concern asserted is that the agreement, which was negotiated in secret, improperly and unfairly circumvents existing and accepted international negotiating protocols such as TRIPS and WIPO. Critics have also raised concerns about whether information privacy has been adequately considered. For example, among the many provisions requiring enhanced criminal enforcement, ACTA empowers signatory nations to order an online service provider to disclose information sufficient to identify a subscriber whose account was allegedly used for infringement.

In the United States, it remains to be seen whether ACTA will require any changes to existing intellectual property laws or creates any new international obligations. That’s because one significant issue drawing attention is whether public and congressional debate is needed before entering into an international agreement such as ACTA. At least one member of Congress has objected to the unilateral signing of the agreement, asserting that because Congress has plenary powers to regulate foreign commerce and protect intellectual property, the U.S. President does not have constitutional authority to unilaterally enter into such binding international treaties. If a constitutional challenge is brought regarding ACTA, the United States Trade Representative (which is a part of the executive branch and negotiated the treaty on behalf of the U.S.) may be required to provide clarity as to precisely what responsibilities have been imposed by this agreement.