Secret treaty appears unconstitutional, implements Orwellian thought-crime punishments in last draft

Last Friday in Tokyo, Japan, big media special interests, the Obama administration, and members of the European Union celebrated.  The EU had become the latest national entity to sign the international Anti Counterfeiting 
Trade Agreement
 (ACTA) [leaked 2010 draft; PDF].  And while SOPA/PIPA had been shot down in the U.S., big media had scored a far bigger win in ACTA -- a far more ambitious edict.

I. "Pay to Play" -- How Obama Is Pushing Big Media's Interests for Cash

Editorial Disclaimer:

This article raises tough issues about quid pro quo and discusses the Constitutional concept of impeachement.  This should be framed in the context that both parties in Washington D.C. appear to be engaging in rampant quid pro quo (cash payments for favorable rules).  In that sense the use of the term "impeachement" should be used purely in a political theory context, in that Congress could not impeach President Obama credibly, without first impeaching themselves.  Now that we've got that out of the way, let's discuss the issue at hand. 

Given the record $4.1M USD members of Hollywood's elite -- top actors and companies -- had given U.S. President Barack Obama in his reelection bid his opposition of the the House's "Stop Online Piracy Act" (SOPA) (H.R. 3261) and Senate's "PROTECT IP Act" (PIPA) (S.968) seemed a remarkably principled stand.  Here was a man who received an extra half million more in big media money than he had in 2008, and who received more than any of his rivals.  Yet here he was showing some backbone and opposing a big-media funded proposal that would have caustic effects on the internet.

And yet that opposition seems more like political theater than a legitimate political stand as President Obama in October signed an executive order, which ordered the U.S. to abide by the provisions of ACTA.

Obama bribery wide
Obama accepted cash from big media lobbyists and in exchange pushed ACTA without Congressional authorization. [Image Source: Politically Incorrect]

ACTA is remarkably similar to SOPA/PIPA.  One of its most basic mechanisms is to institute a takedown system similar to SOPA/PIPA.  But where as SOPA/PIPA only accepted takedown requests from domestic firms, ACTA allows takedowns from foreign firms as well.

Say a foreign business wants to get rid of its American e-commerce portal rival.  It could simply masquerade as a reviewer and post a link to infringed content (e.g. a torrent on The Pirate Bay) and then turn around and request a takedown.  Bam! The successful American firm would be out of the picture, at least until it could prove its innocence weeks later after millions in lost business.

ACTA web takedown
ACTA, could be used by foreign businesses to conduct malicious takedown requests similar to the current DMCA/criminal code takedown system (recent MegaUpload takedown pictured).

The same sort of thing could happen to a news site or a forums site.  And such takedowns have been badly abused in the past, for naysayers who argue that the worst could not happen.

ACTA also contains a whole host of other Orwellian provisions, many of which go well beyond those of SOPA/PIPA.  For example it institutes a special kind of punishable infringement called "imminent infringement" that can be committed just by visiting a webpage with an illegally shared media work.  More or less this proposal is real-life pirate "thought crime", so to speak, as it seeks to punish a person for an action they haven't done yet.

II. Big Brother is Watching You: The Government's Plan for an "Internet License"

So how do the feds plan to keep track of all this and catch you in pirate thought crimes?  Well, the Obama administration is cooking up a new mechanism called a "universal Internet ID".  The universal Internet ID, or UIID for short is being pushed as being like a "driver's license for the internet."  It would work as "trusted entity" consolidating your online logins into a single entity.

Security concerns of such an approach aside, the other implications -- government surveillance and censorship -- are troubling.  While the internet's "yellow armband", the UIID, is currently be plugged as a "non-mandatory" measure, it could easily be made mandatory at a later date if the Obama administration can sucker enough citizens into joining the program.

Obama Big Brother
President Barack Obama is seeking a federal internet tracking system -- the "yellow armband" of the internet world.  It would be optional -- at least at first. [Image Source: Fits News]

While the administration likens a UIID to a driver's license, it’s quite unlike any license you've ever seen.  Currently the internet works a lot like the highway system -- there are rules, and there are police patrolling the information highway looking to make sure those rules are followed.  But citizens have the constitutionally guaranteed freedom to travel it without warrantless searches or seizures.  Under the new system, it would be as if the highway patrol put a video camera, GPS, and sensor network inside your car tracking your every movement. 

Of course the public may not accept the UIID, so the Obama administration surely has alternative measures in mind.

III. The Public Cannot See Secret Treaty

The trouble with ACTA is that it was all carried out under the shroud of secrecy and executive orders.  The Obama administration worked to crush the dissent of some smaller European nations who insisted that a law enforced on the public should be available for public review.

ACTA secret
Obama has fought hard to keep the public from being able to read ACTA. [Image Source: PBS]

The public would never have known about ACTA's wild provisions at all, were it not for a source/sources close to the trade agreement who leaked it to the internet.

Unsurprisingly, the concerted public outcry that was seen with SOPA/PIPA has been absent against ACTA.  But the issue may gradually creep into the public awareness as big media pushes for more privileges.

ACTA is a fluid document, in that unlike a law like SOPA or PIPA, it can be changed or altered at any time with little effort outside of convincing the member states to embrace the change.  That is among the many ways it is more insidious that SOPA/PIPA.

According to the Electronic Frontier Foundation big media is pushing to force internet service providers (ISPs) to kick alleged pirates off the Internet and to adopt expensive filtering schemes.  These measures were originally in ACTA, but were later dropped amid protests.

Three Strikes
Big media allegedly is pushing to modify ACTA to force ISPs to kick to terminate paying customers who are allegedly pirates in a "three strikes" system. [Image Source: AP]

The EFF describes this possible federal free market meddling, writing:

[T]he same industry rightsholder groups that support the creation of ACTA have also called for mandatory network-level filtering by Internet Service Providers and for Internet Service Providers to terminate citizens' Internet connection on repeat allegation of copyright infringement (the "Three Strikes" /Graduated Response) so there is reason to believe that ACTA will seek to increase intermediary liability and require these things of Internet Service Providers. While mandating copyright filtering by ISPs will not be technologically effective because it can be defeated by use of encryption efforts to introduce network level filtering will likely involve deep packet inspection of citizens' Internet communications. This raises considerable concerns for citizens' civil liberties and privacy rights and the future of Internet innovation.

Reportedly big media is keen on seeing that these provisions make a comeback.  They could do so via line item additions to ACTA with little review, outside of consent from member states.

IV. ACTA is Likely an Illegal Document, According to Constitution

If there's one ray of sunshine in this mess it's that ACTA may not be legal or enforceable.  

First its proposed monitoring schemes (UIID, etc.) seemingly violate the Fourth Amendment of the Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A computer is almost certainly an "effect" and online federal warrantless searches and monitoring certainly would be defined by most as "unreasonable" (though the courts would obviously have to agree).

ACTA and the Constitution
ACTA violates the Constitution in three different ways, it appears.  As usual special interest dollars are behind these violations. [Image Source: Google Images/unknown work]

Second there's a board issue with the Consitutionality of Obama signing what is in effect a law, as an executive order.  Article 1, Section 8 of the Constitution states:

The Congress shall have Power
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

In other words it is Congress's responsibility to regulate intellectual property issues.

Further, nowhere in the Constitution are executive orders acknowledged as a legal power of the President.  And legal scholars tend to agree that such orders are only valid in areas where Congress does not legislate.  In other words, this instance would not be an appropriate area for executive orders as Article 1 Sec. 8 explicitly assigned it to the U.S. Senate.  

Further, Article 2 Section 2 states:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur

In other words, ACTA should have been put to a vote on the Senate floor, as an "international agreement" is obviously a treaty.

Thus there are at least three substantial ways that ACTA is unconstitutional.  There is currently a petition running, which asks Congress to take up this issue.

V. Should President Obama be Impeached for Accepting Bribes?

One more thing that's worth noting.  The U.S. Constitution Article 2 Section 4 states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Herein we enter the realm of ambiguity.  The Constitution never officially defines "bribery", so what is it?  The common sense answer would be that bribery is any time a political official (such as the President) accepts money from a special interest and then fails to recuse themselves on decisions involving that interest.

Under such a common sense principle, President Obama appears to have accepted a bribe to violate the U.S. Constitution and the highest political office, thus he should be impeached under this definition.

(For the record he seems to have accepted many of these bribes [1][2] as have his 2012 opponents on the Republican side of the fence.)

Of course including "common sense" and U.S. politics in the same sentence makes for an almost automatic oxymoron.  Today "bribery" is defined in much more ambiguous terms.  For example, it was illegal for ex-Illinois governor Rod Blagojevich, who served with Obama in Illinois, to solicit funds from private business in exchange for promised privileges.  

Obama and Blagojevich
President Obama and close friend ex-Illinois Governor Ron Blagojevich were both masters of soliciting special interest and corporate cash for legislation.  Mr. Blagojevich is currently imprisoned for it, but President Obama is allowed to solicit virtually the same kinds of contributions. [Image Source: AP]

Yet President Obama and Bush were allowed to freely collect money from advocacies, corporations, and other special interests and push for special privileges helping these groups.  Aside from legislative help they have been allowed to turn around and put in place special tax loopholes and grants for their funders.

VI. Selective Enforcement -- How Corporate Interest Write Their Own Rules

Such selective and nonsensical enforcement is common in Washington, D.C. these days.  With over $1.9B USD in 2009 [source] funneled in special interest "lobbying dollars" (bribes) to federal politicians, the mess in Washington D.C. is very reflective of the "do as I say not as I do" nature of the federal government's new rulers -- special interests, including corporations.

For example all of this talk about piracy comes from an industry that has pushed Congress and its foreign peers to create laws that allow big musical labels to steal hundreds of millions of dollars from independent artists yearly.  Under the current law a big media house can "claim" an independent work as its own and start selling it.  The rights holder then has to "prove" that the work is theirs, an arduous process that can take years, as they lose precious revenue.

Stealing key
Big media steals hundreds of millions in copyrighted works annually.
[Image Source: MaximumPC]

Further, numerous studies have shown that pirates in the general public are also the biggest legal buyers of content, so paint it as they may, big media is trying to bite the hand that feeds, seeking to punish those that are paying the majority of its bills.

VII. Fact Sheet: Getting to Know Our Neighbor, ACTA
  1. Is ACTA potentially as bad as SOPA/PIPA?

    No, it's worse.
  2. Is ACTA Constitutional?  

    I am not a judge or a lawyer, but it appears unconstitutional.
  3. Did Obama accept a "bribe" to pass this "law"?

    In the traditional sense of the word, it certainly appears so, but today bribes are known as "lobbyist contributions" and are considered legal in Washington D.C.
  4. What does the Constitution say about a sitting President accepting a bribe?

    They should be impeached.
  5. Who is behind ACTA?

    Big media entities in the music and film world such as News Corp. (NWS) -- owners of various "FOX" properties -- and the Warner Music Group have pushed this bill as a replacement and/or supplement to SOPA/PIPA.
  6. What is the scariest thing in ACTA?

    ACTA's "thought crime" language about "imminent infringement" is particularly onerous, as are plans for a national tracking system.  Of course we can't know what the latest version of ACTA says exactly as  this agreement the President is committing our nation to is not publically available, so we have to rely on (likely illegal) leaked older drafts to know what's going on.

    Note: As a reader pointed out, a handful of nations have defied the U.S. and published the latest draft of ACTA.  One can be found here [PDF], courtesy of the Japanese.
  7. What can be done to stop ACTA?

    Sign the Congressional petition to formally review/publish ACTA.  Let Obama know via email, phone, or letter than his support of ACTA will cost him your vote.
  8. Why aren't Google Inc. (GOOG), Facebook, Wikipedia, etc. blacking out in protest of ACTA?

    ACTA is incomplete and thus far unenforced.  As mentioned it is probably illegal and unconstitutional, as opposed to SOPA/PIPA that -- while Orwellian -- fall closer to the Constitutionally authorized powers in that they were looking to be passed by Congress.

    The big internet corporations have much to lose if ACTA is actively enforced and some like Google have actively spoken out against it.  But they appear to be adopting a "wait and see" approach, hoping the government will fail to carry through on its proposed actions.
  9. Who IS opposing ACTA with action, at this point?

    At this point the only ones seemingly protesting ACTA, for the most part, are Anonymous.  And they are doing so by "hacktivist" distributed denial of service attacks, which while populist, emulate the tactics of big media in taking online content, hence (unfortunately) sinking to their opponents' level.

    To quote English author Edward Bulwer-Lytton "The pen is mightier than the sword."

    That principle is still true, even on the internet.

    Ideas are bulletproof

    Want to fight ACTA?  Do it by protesting and sharing information, not by attacking government websites.  The former approach killed SOPA and it can still kill ACTA -- the latter approach cannot and will not.

Source: Info Justice

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