While the Internet community to protest the free speech and privacy threats posed by the PROTECT IP Act (PIPA) and the Stop Online Piracy Act (SOPA), an international trade agreement with the same stated goals—and potentially greater threats—was being negotiated behind closed doors. While the First Amendment can be served by intellectual property protections that incentivize content creation, IP laws can easily be misused. Like PIPA and SOPA, the Anti-Counterfeiting Trade Agreement (“ACTA”) is another misguided and overbroad attempt to crack down on counterfeiting and piracy over the Internet. There has been excellent analysis of the issue by sources including , and , but we have also been watching this issue and wanted to summarize what’s at stake.
While many of the worst provisions of ACTA were ultimately watered down (mainly due to pressure from outside groups reacting to leaked drafts), many issues remain, both procedural and substantive. There are four primary problems with ACTA.
- Tying Congress’s Hands on Copyright Law
While supporters of ACTA insist it does not change U.S. law (were it technically to change existing law, it would require Senate ratification) opponents have different concerns—namely, that it will reinforce current copyright laws in an area that is changing rapidly and many believe should be updated. Opponents fear that signing the agreement will make it unnecessarily more difficult for Congress to update copyright laws while staying compliant with our new “international obligations.”
- Lack of accountability
Unlike PIPA and SOPA, ACTA would establish a new international body to enforce certain IP rules. This body would be made up of unelected members acting outside the purview of any current international institution. So, while SOPA and PIPA at least would have been enforced by U.S. agencies and subject to constitutional checks and balances, ACTA could be used for worldwide crackdowns on Internet activity by a coordinated authority that could work at cross-purposes with the laws and policies of the participating countries.
- Negotiated in secret
Despite the fact that such world-wide e-regulation has the potential to impact everyone with a computer, ACTA was negotiated in secret by a small, exclusive group of countries and a few private companies. The first the public heard about the talks was when a discussion document in May 2008. Both Presidents and rejected calls from advocates and members of Congress to make ACTA negotiations public, claiming that such disclosure would cause “damage to the national security.” However, a that the draft had been shared with Google, eBay, Dell, Intel, the Business Software Alliance, News Corporation, Sony Pictures, Time Warner, the Motion Picture Association of America, and Verizon under a nondisclosure agreement. Once the agreement was finalized it was posted to the United States Trade Representative’s website .
- Evading Senate approval
To keep the negotiations secret and avoid having to obtain the Senate’s approval, the president is claiming that ACTA was negotiated within his presidential powers as a “sole executive agreement.” A sole executive agreement is one that the president may enter if the terms will not change U.S. law. However, the extent of the president’s authority to completely bypass Congressional approval and enter into a sole executive agreement is controversial. Earlier this month 50 leading U.S. legal scholars sent a letter to members of the Senate Finance Committee ,
the Administration currently lacks a means to constitutionally enter ACTA without ex post Congressional approval. The present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers. If Congress allows the executive to claim that ACTA was authorized by language that clearly does not authorize the agreement, it will be ceding unprecedented power to the executive."
Senator Wyden (D-OR) has also questioned the president’s authority to treat ACTA as a sole agreement. “There are questions of constitutional authority surrounding whether the administration can enter into this agreement without Congress’s approval,” . “Either way, when international accords, like ACTA, are conceived and constructed under a cloak of secrecy it is hard to argue that they represent the broad interests of the general public. The controversy over ACTA should surprise no one.”
Rep. Darrell Issa (R-CA) warned participants at the World Economic Forum that ACTA was more dangerous than SOPA and PIPA and.then called into question the president’s authority to negotiate the agreement. , “It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”
International opposition
To date the United States, the European Union (and 22 of its member states), Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea have all signed ACTA but none have formally ratified the agreement yet.
At the grassroots and at the highest levels of government, ACTA has sparked protests. In , tens of thousands of people protested across the nation and activists attacked government websites when that country signed the agreement in January. Members of the Polish Parliament wore Guy Fawkes masks to demonstrate their disapproval. Since then, protests have been including in Sweden, Germany, Bulgaria, Greece, and the United Kingdom. Notably, Kader Arif, the first "rapporteur" for ACTA in the EU parliament (the member who prepares the official recommendation to the parliament on a legislative proposal), quit his role in disgust, ,
I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organizations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly.
This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade.
Arif’s successor, David Martin, adoption of the agreement, fearing unintended consequences and overbroad enforcement (though he also asked the parliament to consider a replacement).
Post-ACTA: The Trans-Pacific Partnership
Since ACTA’s completion we have learned that part of a new massive trade agreement, the Trans-Pacific Partnership (TPP), aims "to ensure an effective and balanced approach to intellectual property rights among the TPP countries.” Talks on the TPP are currently being held between nine Pacific Rim countries: Australia, Brunei, Canada, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. Like ACTA all negotiations are being conducted behind closed doors with details shared only with Industry Trade Advisory Committees (ITAC). The U.S. ITAC is called ITAC 15 and includes top executives from AT&T, Verizon, the RIAA, the pharmaceutical lobby, and Cisco. All anyone else knows about the agreement comes from a of the "intellectual property chapter" that surfaced about a year ago. EFF’s international IP director, , , “I would say it’s ACTA-plus, not ACTA redux,” Secret international trade agreements negotiated between only government and industry is not a trend we want to see catch on.
Healthy democracies depend on transparency and public debate. Good policies are created through the input of experts, advocates, industry, policy makers, and citizens. Circumventing basic checks and balances to fast-track policies that have already been defeated by the public—often called “”— is not how representative democracy is supposed to work. Many fear that agreements made in ACTA and TPP will put our civil liberties at risk. At the very least, the president should allow a free and open debate on the measures.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.