May 16, 2012

Sean Flynn, American University
Margot Kaminski, Yale University

Today, fifty U.S. legal scholars sent an open letter to the Members of the Senate Finance Committee, asking each of them to “exercise your Constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to [Congress].”

The full letter is available at

The letter responds to the Department of State Legal Advisor Harold Koh’s March 6, 2012, letter to Senator Ron Wyden, which claims that ACTA did not require Congressional approval because it received prior authorization by the 2008 PRO-IP Act. The letter explains:

“First, the plain language of [the PRO-IP Act] does not authorize USTR to bind the US to any international agreement. Rather, the section merely describes the purposes of a “Joint Strategic Plan against counterfeiting and infringement,” to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). . . .

“Second, the PRO-IP act cannot be an ex ante authorization for ACTA because it was not temporally ex ante. The ACTA negotiation began in 2007. PRO-IP was not passed until 2008[.]”

The letter thus concludes that “the Administration currently lacks a means to Constitutionally enter ACTA without ex post Congressional approval.”

PIJIP Associate Director Sean Flynn explains the context of the letter in a blog posted this morning at

Also today, the Electronic Frontier Foundation released documentation that ACTA never was submitted to the normal State Department review process to determine its legality before it was signed by the United States, available at


“Unfortunately, these kind of Constitutional issues over whether Congress, in fact, provided ex ante authorization for a specific treaty are hard (perhaps impossible) to litigate. The real solution, if Congress thinks the executive has overstepped its authority, is exactly what Senator Wyden has proposed – revoke any claimed ex ante authorization so that, to bind the U.S., the agreement must pass through Congress. Then we can finally have a public debate over the desirability of that set of policy choices that we were denied through the secretive negotiation process.”

– Sean Flynn, Associate Director, Program on Information Justice and Intellectual Property, American University Washington College of Law


“USTR knows that if ACTA goes to Congress, there’s a risk that ACTA will be amended or rejected. So USTR keeps offering inadequate justifications for keeping Congress away. First, USTR claimed the President could go it alone; now, they claim that Congress already authorized ACTA. Neither of these things are true. The Constitution requires Congress to be involved in ACTA. We aim to encourage Congress to execute its Constitutional responsibility, rather than permit the executive branch to pretend that Congress has already had its say.”

– Margot Kaminski, Executive Director, Information Society Project
Yale Law School


“These professors are sending a powerful message to the Senate and to the Obama Administration. We hope they will listen to it and act accordingly, the Administration by submitting ACTA to the Senate and the Senate by taking it up.”

– Rashmi Rangnath, Director, Global Knowledge Initiative
Public Knowledge


“ACTA was negotiated with unprecedented secrecy, in a process intended to evade Congressional review. This is particularly troubling because ACTA contains broad IP enforcement powers that will impede Congress’ ability to engage in domestic law reform, and gives the final say on ACTA’s implementation in U.S. law to an unelected ACTA Committee. We welcome the call for Congressional oversight to rectify this unconstitutional power grab, and to preserve the fundamental separation of powers embodied in the US Constitution.”

– Gwen Hinze, International IP Director
Electronic Frontier Foundation