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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鈥攁nd potentially greater threats鈥攚as 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 (鈥淎CTA鈥�) 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鈥檚 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.

1. Tying Congress鈥檚 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鈥攏amely, 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 鈥渋nternational obligations.鈥�

1. 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.

1. 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 鈥渄amage to the national security.鈥� 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鈥檚 website .

1. Evading Senate approval

To keep the negotiations secret and avoid having to obtain the Senate鈥檚 approval, the president is claiming that ACTA was negotiated within his presidential powers as a 鈥渟ole executive agreement.鈥� 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鈥檚 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鈥檚 authority to treat ACTA as a sole agreement. 鈥淭here are questions of constitutional authority surrounding whether the administration can enter into this agreement without Congress鈥檚 approval,鈥� . 鈥淓ither 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.鈥�

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鈥檚 authority to negotiate the agreement. , 鈥淚t鈥檚 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.鈥�

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鈥檚 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鈥檚 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.鈥� 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鈥檚 international IP director, , , 鈥淚 would say it鈥檚 ACTA-plus, not ACTA redux,鈥� 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鈥攐ften called 鈥溾�濃�� 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.