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U.S. Senator Wyden Raises Constitutional Questions About ACTA 239

Posted by timothy
from the there-would-be-these-rules dept.
bs0d3 writes "In a written letter which can be found here, U.S. Senator Ron Wyden questions President Obama's authority to sign ACTA without Congressional approval. 'It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law,' Wyden writes. 'But regardless of whether the agreement requires changes in U.S. law ... the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.'"
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U.S. Senator Wyden Raises Constitutional Questions About ACTA

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  • by DesScorp (410532) <DesScorp@G m a i l.com> on Thursday October 13, 2011 @12:39PM (#37703116) Homepage Journal

    Trade agreements are a form of treaty, and treaties have to be voted on by the Senate. The Constitution does this for a good reason, preventing the President from unilaterally committing the United States to international agreements. Wyden is right on this. And ACTA is clearly a trade agreement. Send this to the Senate first for a vote.

    • by Toonol (1057698) on Thursday October 13, 2011 @12:50PM (#37703272)
      So do I. I'm a crazed far-right Republican, but Wyden is a remarkably sensible Democrat, and the type that can get people to cross party lines to vote for him.

      He knows what he's talking about when it comes to technology, and is usually on the correct side on issues such as copyright, privacy, security, etc.

      His views on economics are painfully wrong, though.
      • What can I say, we breed good Senators in Oregon. We had the very cross-party-lines Republicans in Hatfield and Packwood, now we have the cross-party-lines Democrat in Wyden. (Smith crossed lines occasionally, but also voted against Oregon's voter-mandated interests at times - Merkley hasn't been in long enough for me to figure him out yet.)

        • by sconeu (64226) on Thursday October 13, 2011 @03:37PM (#37705378) Homepage Journal

          I read somewhere that the primary function of a Senator from Oregon is to drive all the rest of the Senate crazy.

          Note. This is a *GOOD* thing.

          Thank you, Senator Wyden.

        • Your forgot about Wayne Morse [wikipedia.org], one of the two Senators to vote against the Gulf of Tonkin resolution, which massively escalated the Vietnam War. He didn't think that the President had the constitutional grounds to take military action with the absence of a formal declaration of war. Sound familiar to any recent history?

          He also crossed party lines to endorse Mark Hatfield for Governor in 1966, which really pissed off the Oregon Democratic Party. They put up a primary challenger in 1968, who he beat; but lo

      • His views on economics are painfully wrong, though.

        I think you can make an argument that all views about economics are wrong. I've yet to see any economic 'theory' make any wholesale sense. I've tried numerous times to read various economic books but after the first couple of chapters my brain feels like it got slapped around in a logic blender and my eyes defocus and my head asplodes.

      • Sorry, but the "let the market sort it out" theory didn't work out too well either, did it? Essentially, it led to two possibilities: Either bail 'em out or be dragged down with 'em. If you allow companies or at least economic branches to become big enough that their failure takes the rest of the country with them, you know it's time to realize that the market won't "sort it out". Why should it? It's most beneficial for the ones that dictate the course the market takes to do anything but allow it to "sort i

    • by bryan1945 (301828)

      Didn't Clinton sign the Kyoto thing, but the Senate never passed it? (Please excuse my memory) At this point, I really have no clue what is law anymore since all 3 branches change it on a whim anymore.

      • by superwiz (655733)
        Kyoto never became a ratified treaty in the US. Ie, as far as US is concerned, we are not a party to the treaty.
      • Re: (Score:2, Informative)

        by Anonymous Coward

        No he didn't. Clinton never signed it because the Senate voted against it 95 - 0. At the very end of his term he did sign an executive order reaffirming America's adherence of Kyoto, but he didn't actually sign the treaty. At that point in time not a one of the 167 signatories of Kyoto had actually ratified it.

        • by Politburo (640618)
          Clinton signed the agreement on November 12, 1998. However he never submitted it to the Senate for ratification, because of the 95-0 vote (which was technically a non-binding vote).
          • by sjames (1099)

            Effectively, that means we happen to more or less adhere to it but are not bound to do so in the future.

    • by jhoegl (638955)
      You assume the Senate is functioning...

      But what about cases where it is not, like now?
      • It seems to be functioning quite well right now.
      • by DesScorp (410532) <DesScorp@G m a i l.com> on Thursday October 13, 2011 @01:13PM (#37703566) Homepage Journal

        You assume the Senate is functioning...

        But what about cases where it is not, like now?

        The Senate is functioning as it was designed to, as a break on both the House and the Presidency. The Senate was never supposed to be a rubber-stamp, for either the President or the House.

          The whole point of a Senate is to have a group of men to take a deep look at what the House (which was always supposed to be the popular voice of the people) passes in the heat of the moment, and it was designed to prevent the President from becoming a Caesar. This is why treaties have to be voted on by the Senate, and why the President's appointments to his cabinet and to SCOTUS have to be reviewed, scrutinized, and voted on by the Senate. This is also why Senators were not popularly elected when the Constitution was written, but appointed by state legislators. The whole idea of the founders was to put a second party into the Congress that was indirectly responsible to the people (via their elected state houses), but not popularly elected, and thus less subject to the passions of the moment. I used to support popular election of Senators, but the older I've gotten, the more I think the founders had it right in the first place, and that the 17th Amendment was a mistake.

        Also, if you want things to pass easier in the Senate... the way they do in the House, with a simple majority vote, well, the way is clear here. Just demand that the Senate drop their unique rules requiring 60 votes. That rule is not in the Constitution, but an internal Senate rule (which the Constitution permits).

        Just be careful before you demand this. Because if the Senate goes to simple-majority vote, so can future Senates... ones where the other party is the majority.

        • by eepok (545733) on Thursday October 13, 2011 @01:32PM (#37703834) Homepage

          I believe the person to whom you reply would contest that your interpretation of the goings-on in Congress is naive. While everyone would agree with the principal as you state:

          "The whole point of a Senate is to have a group of men to take a deep look at what the House (which was always supposed to be the popular voice of the people) passes in the heat of the moment," ... few people believe that's what actually happening. We have seen *many* acts and bills passed in the heat of the moment and it's hard to argue that our Senators are as much philosophers as they are self- and party-interested tacticians.

          People don't complain about the difficulty of things passing in any house of Congress nearly as much as they do the severe biases that allows some things to pass and others not.

        • by Obfuscant (592200) on Thursday October 13, 2011 @02:06PM (#37704238)

          The whole idea of the founders was to put a second party into the Congress that was indirectly responsible to the people (via their elected state houses), but not popularly elected, and thus less subject to the passions of the moment.

          The reason they weren't elected, and why there are two for every state, is that they were intended to be the body that looked out for the interests of the country as a whole and not the specific interests of the state they came from or the voters therein. Ratification of treaties falls squarely under that baliwick, since treaties tend to have an impact on the entire country and not just one or two states. Ditto federal appointments.

          The 17th amendment was a big mistake, because now all we have are people looking out for their own skins and getting re-elected instead of looking out for the US. This has turned the Senate into nothing more than a posh version of the House.

          • by stevew (4845)

            I think you have this wrong. "The reason they weren't elected, and why there are two for every state, is that they were intended to be the body that looked out for the interests of the country as a whole and not the specific interests of the state they came from or the voters therein. "

            This is inherently wrong when you consider that the constitution created to sets of co-equal sovereignty. The intention as I read the constitution was to create an upper house where the concerns of the States would be taken

        • To further your point, the original purpose of the Senate was that they represented the interests of the states, not directly the people. And the states desperately need representation, as we can see now with a federal government that puts onerous regulations on them with no recourse and no direct representation. Note that when I say "states" I really mean the states, not the people living there (who are indirectly the states).

        • Re: (Score:3, Insightful)

          by blair1q (305137)

          The whole point of a Senate is to have a group of men to take a deep look at what the House (which was always supposed to be the popular voice of the people) passes in the heat of the moment, and it was designed to prevent the President from becoming a Caesar.

          Well, no. The point of Congress and the judiciary is to keep the President from becoming a Caesar. The point of the Senate was to give property a voice in Congress to go with the voice of the people over in the House. About a hundred years ago, we got wise to that and changed Senate appointment to a democratic vote of the people, so now it's just a harder way to get into Congress and attracts those who have enough political clout they could wipe their nose on a House seat. They tend to be the more exper

          • .. to the resurgence of pettiness as the primary means of political discourse ....

            +7 incisive

          • by DesScorp (410532)

            Now, however, owing to the resurgence of pettiness as the primary means of political discourse, it's indistinguishable from the House except in the cost incurred in stealing the votes necessary to enter it.

            It's indistinguishable from the House because, thanks to the 17th Amendment, it's nothing but another version of the House with longer terms and more power.

    • by AmElder (1385909) on Thursday October 13, 2011 @01:11PM (#37703548) Homepage

      I disagree, ACTA is not, at heart, a trade agreement at all. It's a law enforcement treaty focusing on intellectual property. It aims to harmonise the enforcement measure with regard to intellectual property across the signatories. There's evidence for this in every portion of ACTA, but you just have to look at the headings for the two substantive chapters:

      • Chapter II: Legal Framework for Enforcement of Intellectual Property Rights
      • Chapter III: Enforcement Practices

      This doesn't diminish your point or Senator Wyden's. To quote an excellent article [american.edu] by Sean Flynn, ACTA would affect:

      "evidentiary standards required for property seizures and criminal prosecution. It would affect state common law, where many trade secret obligations reside. And primarily it would affect the evolution of federal law, including the large federal statutory enactments on patents, copyrights and trademarks."

      The president doesn't have any enumerated (or un-enumerated) powers that cover this territory, indeed, the power to regulate intellectual property, I understand, is an enumerated power of congress (Article I, sec 8 of the constitution). Therefore the agreement should be submitted to congress by the president and more specifically by the USTR under his authority.

      • So, you're arguing that the Anti-Counterfeiting Trade Agreement (aka ACTA) isn't a trade agreement?

        • by Bucky24 (1943328)
          Going off of the title alone does not make it a trade agreement (I haven't actually read it myself, just saying). For example, take a look at the "Patriot Act". The title often does not describe accurately what is in the bill/act itself.
          • by c++0xFF (1758032)

            Try again. The full name is "Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001."

            Of course, the title was chosen to create a nice propaganda vehicle to sell it to the public, so the meaning of PATRIOT has largely been lost.

        • by AmElder (1385909)

          Exactly, thank you for putting it so succinctly. ACTA was badly named. It is not what it pretends to be. This seems to be a common understanding among people who've studied the treaty. Another good article [american.edu] in the American University Washington College of Law series, this one written by Margot E. Kaminski, say that:

          "ACTA is primarily a copyright treaty, masquerading as a treaty that addresses dangerous medicines and defective imports."

          The reasons that software professionals and free/open-stuff advocates

        • by geekoid (135745)

          Don't judge a bill by it's name.

      • You do not actually disagree with the original poster. You just take a slightly more direct route to the same conclusion. The OP said: ACTA is a trade agreement. Trade agreements are nothing more than a form of treaty. Treaties must be voted on by the Senate. You said: ACTA is not a trade agreement, it is a treaty. Treaties must be voted on by Congress.
        I agree with you both. ACTA is not binding on the U.S.until such a time as 2/3s of the Senate vote to ratify it. While Obama can sign it and act on it as la
        • by AmElder (1385909)

          I'll continue agreeing, then. The European Union, for one (or for 25) has called ACTA a treaty, so if the US treats it as non-binding (as it legally should be, at the moment, under US law) and doesn't follow the agreement, or a state undertakes a policy that diverges from the text of ACTA, everyone may end up in an arbitration process, and domestic law has no standing there. So there's a risk to the US in taking this route.

          I have a little bit of a problem with people attributing blame for this to the pres

          • Until such a time as it is ratified by the U.S. Senate, none of its provisions are binding on the U.S., not even the arbitration process. The problem that Senator Wyden (and the OP and myself) have is with the President saying that he will sign it and treat it as binding without it being ratified by the U.S. Senate (I have additional problems with the treaty, but they are not something I will lay solely at Obama's feet). The President does not have the authority to enter into an agreement with other nation
            • by DarkOx (621550)

              This president has no concept of the limitations of his power. He make Bush and his signing statements, which were outrages, fond memories.

              You can add selective enforcement of immigration and deportation law to your list as well. The law does specify how to prioritize enforce but Obama seems to think he have INS do that. Seems like if violates Equal Protection to me but what do I know?

              We also have the EPA essentially legislating environmental standards, so much for simply enforcing and advising the legis

    • It's too bad that his objection seems to be over the procedure and not the content (can't read the letter, seems to be slashdotted). Too much to hope for that the senate would be anything other than a rubber stamp on the copyright cartel's legislation. I'm guessing that the senate is mad they don't actually get credit and the associated campaign contributions that signing off on it would get them.
      • by AmElder (1385909)

        Presumably he wouldn't bring up the procedural objection if he didn't care about the content. A vote in two chambers of congress would give opponents of the treaty (or agreement or whatever you want to call it) at least two more opportunities to oppose it in public. Congress is more responsive to public mood than the executive branch. I think it was an ambassador who signed the treaty in Japan over last weekend. That's an event that much harder to make a stink about than a vote in the legislature.

    • This link explains the difference: Treaties and Executive Agreements [outsidethebeltway.com].

      Since George Washington, presidents have been entering the US into international agreements that were not approved by the Senate, i.e., agreements pursuant to the constitutional authority of the president.

      The constitutional sources of authority for the President to conclude international agreements include:
      (a) The President’s authority as Chief Executive to represent the nation in foreign affairs;
      (b) The President’s a
  • The Constitution? (Score:5, Insightful)

    by ShakaUVM (157947) on Thursday October 13, 2011 @12:47PM (#37703226) Homepage Journal

    The Constitution? Pfft.

    We've moved past that a long time ago.

    Asset forfeiture, warrantless search and seizure, restrictions on the freedom of the press on the internet...

    • by mcgrew (92797) *

      Indeed. I documented our lack of what were formerly our rights six years ago. [kuro5hin.org]

      • Interesting link. Here's one of my favorite lines:

        The courts have held that you have no freedom of speech when writing in a computer language.

        • by geekoid (135745)

          Its bullshit.

          I also don't have freedom of speech to write the harry potter books and distribute them.

          His whole post is no only full of logical fallacy, shows a clear inability to understand the constitution.

          • by Lanteran (1883836)

            That point's not. It's referring to software patents, not copyrights. If you come up with an idea for a program independently that's been patented, quite likely given the seeming abandonment of the obviousness exclusion, you're not allowed to write your program without the express permission of the patent holder. Software patents aren't like patenting actual physical inventions, they're more like patenting plot elements in a book.

    • by dkleinsc (563838)

      I'm surprised you didn't add killing [wikipedia.org] and torturing [wikipedia.org] (under the rules put forward by the UN Human Rights Council and Amnesty International) citizens without charges.

      But hey, at least nobody's tried to quarter troops in my home yet.

  • by Animats (122034) on Thursday October 13, 2011 @12:55PM (#37703350) Homepage

    First, the link to the letter in the article tries to get you to sign up for some file storage service before reading the document. Here's the original from Sen. Wyden's U.S, Senate site. [senate.gov]

    The reason this isn't being submitted to the Senate for ratification as a treaty is because of a conflict between the pharmaceutical industry and the Department of Defense. The pharmaceutical industry insists that national governments not be allowed to override intellectual property laws to make low-cost drugs available to their citizens. That's in ACTA. DoD insists that they be allowed to override intellectual property laws when they want to use a technology without paying for patent rights first.

    If ACTA were ratified by the Senate, it would be binding on the U.S. Goverment. This would give patent holders rights against the U.S. Government they dont' have now. DoD doesn't want that.

    • Between two really unattractive options, backing DoD or pharmaceuticals, I think we picked the wrong side of that one. Pharmaceutical companies are just about the most corrupt, manipulative organizations around. And I'm not saying that because of some CNN sound bite, I've read some good books by business ethics and public health experts on the topic. This one was not only argumentative but surprisingly scholarly and accessible; great stuff. Profits Before People [amazon.com]

      The people in sales and marketing of prescr
    • by Solandri (704621) on Thursday October 13, 2011 @01:40PM (#37703926)

      DoD insists that they be allowed to override intellectual property laws when they want to use a technology without paying for patent rights first.

      Are you sure? It sounds more like they just want to preserve the Bayh-Dole Act [keionline.org], meaning if the government helps fund the R&D for a product, they get non-exclusive royalty-free rights to any IP generated from it. I know the DoD has some overreaching powers over IP when it comes to national secrecy or times of war, but I haven't heard of them being able to just use someone's independently-developed patent outright without paying for it (aside from the regular government indemnification from being sued).

      • by Animats (122034)

        I know the DoD has some overreaching powers over IP when it comes to national secrecy or times of war, but I haven't heard of them being able to just use someone's independently-developed patent outright without paying for it (aside from the regular government indemnification from being sued).

        28 USC 1498. See this presentation on IP problems of DoD subcontractors. [ndia.org] It's routine in DoD procurements to get one contractor to develop a technology, then award the production contract to the lowest bidder without paying for the technology. The developer can sue the Government, but that takes years (one case has been going on for 30 years) and the Government wins about 75% of the time. Many companies prefer to keep their technology secret from DoD and not deal with them at all because of this.

      • DoD IP rights (Score:4, Informative)

        by ace37 (2302468) on Thursday October 13, 2011 @04:14PM (#37705846) Homepage

        As a DoD contractor, I see that all the time. DoD employees are rightfully pissed when contractors develop tech on the government dime, then take the tech a half step further and start calling it proprietary. It's total BS. The DoD always wants the simple right to use the things they paid for without paying again. And in years past, DoD contracts departments have sometimes done a poor job and then been burned by buying something on a low initial bid, being sold a proprietary technology, and then being stuck with ridiculously overpriced maintenance costs and no way to cost-effectively hire someone else to do the work.

        I've never seen the DoD just try to directly use a foreign patent for free, although it's not an issue of whether or not they want to--I think it's more functional roles. The DoD is primarily composed of enlisted guys who do the work and generalist officers who lead them. They employ pockets of specialists to keep the generalists out of trouble, and those few specialists usually end up responsible for technical management of programs and contracts so the officers don't need to do day to day management and can focus on strategic items. That way DoD officers don't have to learn how to manage highly technical staffs--which is a very different task from managing soldiers in the field, so this significatanly cuts DoD overhead--and the DoD doesn't have to figure out how to keep paying for a costly technical staff if congress reduces funding since they can just not extend contracts.

        The DoD will still be crying for the new features and capabilities provided by new patents, but they generally don't care how it gets done, and consequently, the patent is an issue the contractor can figure out. The DoD just wants 'sharks with frikin lasers attached to their heads.'
        And now they buy the documentation too so they can later get competitive bids on upgrading those lasers down the road.

  • by RobinEggs (1453925) on Thursday October 13, 2011 @01:05PM (#37703466)
    Every time I see Ron Wyden associated with something he's the one asking intelligent questions or proposing reasonable legislation. It's gotten to the point where I have to watch myself to make sure I don't agree with him reflexively.

    I'm incredibly impressed with him, and I sure wish *he* would run for president. I'm nauseated at the prospect of choosing between Romney and Obama next year.

    Sometimes I even want to do this with pictures of Ron. Secret Love Lair [penny-arcade.com]
    • by Quila (201335)

      If only Wyden didn't completely disregard the Second Amendment. His support of hate crimes legislation (creating "protected classes") and more extensive cell phone wiretapping are also troubling.

      But at least more than others he's a good mix rather than a party-line lackey.

  • 1) U.S. companies and legislators practically dictate ACTA to cushion the corporate interests of the entertainment industries.
    2) ACTA is presented as an "offer you cannot refuse" to the rest of the world.
    3) Eventually, ACTA comes back to the U.S. as a treaty, ready to to be signed
    4) ... then it suddenly might not be acceptable to the people who (in practice) started the whole circus?
    5) ???
    6) Confusion!

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