Beyond irking advocates of net neutrality, the Google-Verizon proposal regarding regulation of wireless Internet access has drawn fire from a couple of FCC commissioners.

Reporting for FDL, David Dayen writes that FCC Commissioners Michael Copps and Mignon Clyburn, "slammed the Google-Verizon joint policy and strongly endorsed net neutrality last night at a hearing before hundreds of citizens in Minneapolis giving the Chairman of the federal agency Julius Genachowski all of the support he would need to regulate broadband Internet if he so chose." The commissioners, Dayen continues, criticized the Google-Verizon proposal saying if adopted it "would eliminate any openness provision over wireless, which is where all Internet applications are going."

Critics of the Google-Verizon proposal say it is an affront to net neutrality, which calls for information via the Internet to be easily and fairly accessible to all people. The proposal offered earlier this month maintains that net neutrality should not apply to wireless access.

The FDL post notes that Sen. Al Franken has also criticized the Google-Verizon proposal. FDL includes video of Franken addressing the two companies' ideas. "We can't let companies write the rules that we the people are supposed to follow. Because if that happens those rules will be written only to protect corporations," Franken said.

Google's team-up with Verizon sparked great consternation among supporters of net neutrality principles, with several claiming that Google had abandoned its commitment to those principles.

Jordon Rohan, an Internet analyst at Stifel Nicolaus, told The New York Times, "I don't know that Google pondered the moral decision this time. I think the business decision to cooperate with Verizon superseded the other complications and side effects that it may cause."

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By Susan Scafidi, a professor at Fordham Law School and the Academic Director of the law school's Fashion Law Institute, the world's first educational center devoted to the emerging field of fashion law. In addition to her foundational articles on intellectual property and fashion design, Scafidi is the author of "Who Owns Culture?" and blogs on law and fashion at www.CounterfeitChic.com.

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Intellectual property law is being re-fashioned for a new generation. After epic battles between IP owners and the free culture crowd, a sector with a large economic footprint but a slender jurisprudential silhouette has designed a mode of protection as striking as the introduction of the miniskirt in 1965. It's unmistakably modern, covers all the essentials, but makes a point of leaving quite a bit in the public domain. Call it the new minimalism - courtesy of the not-so-frivolous fashion industry.

Perhaps it shouldn't be surprising that the industry that gave us the punch card loom, the direct ancestor of the modern computer, is on the cutting edge of development in IP. U.S. law, however, has long excluded most creative fashion designs from protection, apart from their trademarked labels and logos, even as other major fashion-producing countries have developed design rights. Europe, Japan, and India all have laws that cover fashion design; France has been protecting its celebrated Parisian couture for over a century. American fashion designers have been seeking legal recognition for at least that long, and they are finally poised to achieve it in a way that alters the contours of IP law as well.

As the nation has transitioned from agriculture to manufacturing to ideas as its primary source of economic growth, the fashion industry has followed. Americans still grow cotton and weave denim, but today, influenced by TV shows like Project Runway, there are far more aspiring designers than tailors or seamstresses. Without IP protection, though, creative garments are easily copied by design pirates who systematically troll trade shows and red carpets looking for the most popular new designs.

Given the speed at which information travels via the Internet, cheap, fast fashion copies can be shipped back to the United States and end up on the street before the original designer has a chance to recover her investment. Some designers even lose wholesale and retail orders after poorly made but otherwise nearly identical merchandise becomes available for sale. This is especially devastating to emerging designers, whose relatively unfamiliar logos are rarely copied along with the underlying articles of apparel, leaving them without even a trademark claim. As one young designer told me in regard to more established, logo-driven companies, "They can just sell their trademarks. We have to sell our designs."

In actuality, the designer was only half right. The absence of design protection also leaves a loophole for trademark counterfeiters, some of whom legally import copies of distinctive merchandise without a fake logo and then add the illegal label later. Such simple subterfuge undermines the Obama administration's new strategic plan to combat counterfeits, and ultimately IP law itself.

The bipartisan Innovative Design Protection and Piracy Prevention Act (IDPPPA) introduced by Sen. Charles E. Schumer will bring fashion design under the IP umbrella while limiting it to the shortest term of protection available under any legal system in the world, three years. It also establishes a high qualifying standard for protected designs reminiscent of patent law, but without an expensive registration requirement. Only designs that are new and original will be protected, and every other garment ever created will remain in the public domain. At the same time, the bill limits violations to substantially identical copies, a standard borrowed from trademark. As elsewhere in copyright, there are blanket exemptions for teaching and analysis; in fashion design, there's even a special home sewing exception for the clever crafter who wants to replicate the runway for her daughter's prom dress or her own wedding gown.

In addition to these lessons in legislative restraint from other areas of IP law, the IDPPPA introduces unique new procedural deterrents to litigation. And if a case does go to court, the alleged copyist will have the opportunity to show that that the design in question was created independently of the protected original. In the unlikely case that creative lightning strikes twice, or if two designers following a trend end up with stitch-for-stitch replicas of one another's work, there's no liability. Retailers who inadvertently sell illegal copies are also shielded against legal actions. While the bill's high standards and heavy burden of proof may leave some unique designs and designers unprotected, it is a distinct step forward.

For economy-minded consumers - and who isn't these days? - limited fashion design protection will mean a greater range of affordable choices, part of the kind of progress that IP law is intended to promote. The companies that originally gave us fast fashion - H&M, Zara, Topshop - are European chains, already operating under restrictions on literal copying. As a result, they employ designers to tweak the trends enough to stay out of legal trouble and also pursue licenses with famous names like Karl Lagerfeld to create legitimate versions of designer looks for those of us with couture taste and a basics budget. Some American companies like Target are already creating similar partnerships with editorial darlings like Proenza Schouler; the new IP system will make those deals with big and small designers even more attractive. The end result is more options and better translation of the latest fashions for the general public.

Unlike earlier bills, the IDPPPA represents a hand-in-glove collaboration between historically distinct stakeholders in the fashion industry, creative designers and corporate manufacturers and distributors. Over half a century ago, the A-list wore Paris originals and everyone else settled for copies - some licensed, some not. Original but inexpensive simply wasn't an option. Now that a celebrated designer like Narciso Rodriguez can dress the First Lady and create an affordable collection for eBay in the same year, the old high-low, creator-copyist divisions no longer control. The Council of Fashion Designers of America, by consulting with its fellow trade organization, the American Apparel and Footwear Association, has modeled a new consensus approach to IP law that represents the interests of creators, producers, and consumers alike. As the sole academic at the table during these discussions, my impression is of an industry that has freed itself from the philosophical debate over art versus craft, creativity versus construction, and has instead chosen to recognize and support both.

With the passage of the IDPPPA and the inclusion of fashion design among protected industries, American intellectual property law will enter a new era of restraint likely to serve as a pattern for future legislation. As Coco Chanel, who cleverly declared indifference to copying while privately pursuing legal action against design pirates, reputedly said, "Elegance is refusal." With its careful balance and refusal to accept one-size-fits-all law, the IDPPPA is indeed an elegant solution to the fashion industry's need for IP protection - narrowly tailored for an almost perfect fit.

The cyberspace advertising giant Google is facing internal struggles over how "far should it go in profiting from its crown jewels - the vast trove of data it possesses" about users' online activities, reports The Wall Street Journal's Jessica E. Vascellaro.

Reporting on a 2008 confidential "vision statement," the WSJ says the document provides "a candid, introspective look at Google's fight to remain at the vanguard of the information economy."

The Google document asserts that the company's database is "the BEST source of user interests found on the Internet," and advances ideas on how to take advantage of the situation, WSJ reports.

The article continues:

The most aggressive ideas would put Google at the cutting edge of the business of tracking people online to profit from their actions. A data-trading marketplace, for instance, would allow personal information from many sources - including Google - to be combined and used for highly personalized tracking of individuals.

Beyond information gleaned from the vision statement, interviews with current and past Google workers reveal an internal and ongoing struggle over concerns about users' privacy and the potential for company profits.

"In short," the WSJ piece concludes, "Google is trying to establish itself as the clearinghouse for as many ad transactions as possible, even when those deals don't actually involve consumer data that Google provides or sees. The further step in that progression would be for Google to become a clearinghouse for everyone's data, too. That idea, also laid out in the vision statement, is still being considered, people familiar with the talks say. That would put Google - already one of the biggest repositories of consumer data anywhere - at the center of the trade in other people's data as well."

 

After providing a keynote address at a recent ACS event on privacy concerns in a digital age, Christopher N. Olsen, the assistant director in the Federal Trade Commission's Division of Privacy and Identity Protection, noted in an interview with ACSBlog that the agency plans several forums for hearing input on the tackling online privacy concerns. Watch Olsen's interview below or download a podcast of it here.

 

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 By Aparna Sridhar, public policy counsel, Free Press

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Broadband networks represent the most critical communications infrastructure of our time: if these underlying transmission systems don't function effectively, the Internet cannot serve as a vibrant forum for speech, commerce, and culture.

Yesterday's ruling from the D.C. Circuit in Comcast v. FCC called into question the Federal Communications Commission's ability to protect consumers from harmful activity by the owners of these networks. Without oversight, dominant broadband providers - principally large cable and telephone companies - will be free to do as they wish even if their actions hinder the free flow of information, treat consumers unfairly, or discriminate against speech that they find undesirable. The decision also suggests that the Commission has limited authority to implement its recently devised National Broadband Plan - a plan that will be critical in closing the digital divide at home and abroad.

To understand these issues more fully, we need to step back in time a bit. Historically, communications law and FCC policy have recognized several unique characteristics of communications networks (like the telephone, telegraph, and now IP-based networks): (1) The networks require significant investment to build them, and as a result, the market to provide access to such networks will likely be heavily concentrated, (2) customers can likely use the services of only one network provider at a time; and (3) the costs associated with switching providers are significant. Thus, the owners of the networks have sufficient gatekeeping power. Because the network providers possess this gatekeeping power, the law required them to comply with certain basic rules, including the duty to open their networks to everyone without discrimination, and the duty to interconnect with other network providers that offered the same services.

On the other hand, the law historically imposed very few requirements on companies whose services made use of these networks, including such services as e-mail, Web browsing, and other content and applications made available over the Internet. The market for those types of services is more competitive, the barriers to entry are lower, and the chance that those service providers can extract monopoly rents or hamstring their competitors is significantly reduced as a result.

In 1996, Congress passed the Telecommunications Act, which essentially adopted these distinctions. Access to a communications network was deemed a "telecommunications service," and content and applications that used that IP-based networks to transmit data were termed "information services." And for the first few years after the 1996 Act was passed, the FCC treated broadband providers as "telecommunications service" providers.

In 2002, that changed. Reversing course, the Bush-era FCC decided to classify broadband Internet access service as an "information service" under the Act. In 2005, that decision was upheld by the Supreme Court as a reasonable interpretation of the 1996 Act. The Court did not reach the question of whether the FCC's interpretation was the best interpretation; it just said that the agency retained the discretion to make that determination, and that under Chevron v. Natural Resources Defense Council, the Court would defer to the agency's determination.

This deregulatory decision had far-reaching consequences. As set forth above, the law imposes very few obligations on information service providers. What the D.C. Circuit said yesterday is that since the Commission made the decision to classify broadband Internet access as an information service, it doesn't have authority under the current regulatory framework to enact basic consumer protections.

While the court drastically limited the scope of the FCC's authority to regulate broadband if broadband access continues to be classified as an information service, the Court left the door open for a straightforward fix: the FCC retains the authority to reclassify broadband providers as telecommunications service providers. The Commission would then be able to adopt policies to preserve the value of the open Internet, bring broadband to rural and low-income Americans, provide consumers with basic privacy protections, and require network operators to advertise and bill accurately for their services.

The Commission can and should pursue this option. It would put the FCC's broadband policies on more solid legal footing. And it would not be a radical change: it would merely close the loophole created by previous Commissions. Moreover, the Commission has the authority, under a procedure called forbearance, to tailor its policies narrowly. It can decide that broadband network owners should be required to comply with only some, and not all, of the rules governing "telecommunications services."

In the long term, Congress may pass legislation that provides the FCC with further guidance on how to regulate network providers. But in the meantime, the FCC must use the tools at its disposal - including reclassifying broadband transmission as a telecommunications service - to protect consumers from anti-competitive behavior, encourage broadband deployment and adoption, and preserve the Internet as an open platform for democratic engagement, information-sharing, cultural expression, and commercial activity. As both consumers and citizens, Americans deserve no less. 

[image via crunchgear.com]

 

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By Sherwin Siy, Deputy Legal Director and Kahle/Austin Promise Fellow, Public Knowledge

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The Anti Counterfeiting Trade Agreement, or ACTA, has received a fair bit of attention in the technology press and elsewhere, more so than might have been anticipated by a trade agreement. Its staunchest opponents warn that it threatens basic freedoms of speech and due process, and jeopardizes access to effective medicines around the world. Its most vehement supporters claim that without it, thousands of American jobs will succumb to the whims of pirates and counterfeiters. Academics have raised constitutional concerns about both its process and substance, while the President has offered it up as a tool to "crack down on practices that blatantly harm our businesses." At Public Knowledge, we remain gravely concerned about its potential effects on the way we access the Internet and use the media we buy.

So what is this ACTA? A simple trade agreement? A nefarious circumvention of domestic law and legislative procedure? Something in between? And what does it actually do? The fact that such basic questions about ACTA exist and persist points to one of its most prominent and central flaws: its lack of transparency. Only the basics are offered on the U.S. Trade Representative's (USTR) website-that it is to be a "plurilateral" trade agreement between a number of countries, designed to combat the infringement of intellectual property. More recently released "fact sheets" from the USTR provide outlines for the agreement's topics of discussion, including proposals on civil and criminal enforcement, border measures, and Internet issues. (The website also features letters of endorsement for the as-yet undisclosed agreement from proponents.). Importantly, ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval.

As for its actual substance, the text of ACTA remains, officially, a secret. Freedom of Information Act (FOIA) requests on the text itself or drafts thereof have been rebuffed with claims that disclosure would reveal "foreign government information" that was given to the U.S. under a confidentiality agreement. An early draft of a section of the "Internet chapter" was disclosed to a small number of industry representatives and a smaller number of civil society advocates (myself among the latter), but under a non-disclosure agreement that prevents me, or any of those other people, from discussing and debating the provisions we saw openly.

The rationale for this secrecy is not particularly clear. While draft text offered by other parties might fall into the category of foreign government information, it is becoming increasingly clear that foreign governments involved in the negotiations are interested in disclosing the text. (The European Parliament, for one, has passed a resolution calling for the text to be made public.). The other reason offered for this secrecy is that it is habitual in trade agreements not to disclose negotiating positions. Yet ACTA's status as a trade negotiation seems less based in the nature of its substance than in the convenience that this designation provides. Unlike other free trade agreements, ACTA deals solely with intellectual property (IP) -- a relatively specific (but broadly significant) aspect of law and policy -- and not with any questions of tariffs, export limitations, or any other of the other areas that might necessitate negotiating parties keeping their positions in private negotiations. To the contrary, ACTA appears to contain mostly requirements for the IP laws -- requirements not limited to the goals of enforcing copyrights and trademarks -- of participating countries. Those requirements include providing for statutory damages, various types of secondary infringement, and strongly suggest enforcement mechanisms like the controversial "graduated response" or "three-strikes" rules.

We know this because a series of leaks, which include what appear to be full text and country positions. Even as the USTR assures the public that the agreement won't (and as an executive agreement, certainly can't) change U.S. law, the leaked text includes provisions that require particular interpretations of U.S. law-much of it judicially-made case law subject to ongoing interpretation and evolution. For example, one part of the Internet chapter requires member countries to include doctrines of secondary liability for infringement, using definitions and terms that can easily be more expansive than what exists in current domestic law. While this may seem like a minor detail, the determinations of such minor details are the stuff that multi-billion dollar lawsuits like the Viacom/Google litigation are made of.

Even without legislative action by Congress, differences like these can have a real influence on the course of domestic law, as international agreements are used as persuasive authority in statutory interpretation. And the history of IP law and its continual expansion give us reason to be at least somewhat suspicious that ACTA might be a form of "policy laundering." This was the case with the Digital Millennium Copyright Act, the provisions of which, after failing to capture Congress' interest, were incorporated into the WIPO Internet Treaties and then brought back to the U.S. as international obligations. The fact that ACTA conveniently was raised as a trade issue-in a forum where negotiations are more closed-has raises suspicions that this history of opportunistic forum-shifting might be repeating itself.

But the potential effects of ACTA go beyond merely nudging interpretations of U.S. law in a new direction. Acceding to a new international agreement would hamper attempts to amend some of the flaws in our current law, locking us into a system that already has apparent flaws. ACTA's effects on the laws of other countries should also be taken into account, as we want to ensure that IP laws don't unduly hamper the free speech of other countries' citizens, or, to take a more commercial tack, that IP laws don't subject US technology companies, like the makers of digital recording devices or hosting websites, to overbroad copyright liability.

None of this is intended to stand in the way of ACTA's stated goals of reducing infringement and enforcing IP laws. But while we can all agree that we do want to reduce fraudulent goods and counterfeiting, ACTA's leaked text seems to indicate that it could do much more. We could cynically assume that this is the result of a hidden purpose -- if not by its negotiators, then by those seeking to influence them. Or more charitably, these substantial flaws are the result of a lack of open, public debate on these issues.

Which brings us back to the necessary first problem with ACTA that needs to be solved before the others can be addressed -- the issue of transparency. The lack of transparency not only prevents advocates from any side from engaging in an informed, intelligent debate on the issues, it leads to a process that necessarily has an artificially constrained view of the values at stake. An agreement as broad and far-reaching as ACTA seems to be needs to be subject to public scrutiny. If sunlight is the best disinfectant, than its lack may well encourage flaws to fester, threatening not just the health of the agreement, but also of our laws and policies.

[Image via P Doodle.]

Broadband service provider Comcast fended off the federal government's attempt to pursue a "net neutrality" policy, when a federal appeals court ruled that Comcast can limit the ability of certain types of information to be easily shared over the Internet. The New York Times reported, "The decision by the United State Court of Appeals for the District of Columbia Circuit specifically concerned the efforts of Comcast, the nation's largest cable provider, to slow down customers' access to a service called BitTorrent, which is used" to exchange files over the Internet.

Comcast caught the attention of the Federal Communications Commission (FCC) when it started throttling of BitTorrent, supposedly to ensure greater broadband capacity. The FCC issued rules forcing broadband providers to halting the practice to ensure "net neutrality," to limit discrimination against users of BitTorrent. In the case, the federal appeals court rejected the FCC's arguments (pdf) that it had authority under federal law to enforce regulation ensuring net neutrality.

"It is true the ‘Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications, the appeals court concluded in Comcast v. FCC. "It is also true that ‘[t]he Internet is such a technology,' indeed, ‘arguably the most important innovation in communications in a generation.' Yet notwithstanding the ‘difficult regulatory problem of rapid technological change' posed by the communications industry, ‘the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer ... Commission authority.'"

In a press statement S. Derek Turner, research director for Free Press, one of the public interest groups that urged the FCC to regulate Comcast's efforts to stifle BitTorrent traffic, said the decision leaves "the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing."

[image via M3Li55@]   

 

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By Amanda Frost, associate professor of law, American University Washington College of Law

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Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.

Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.

Al-Haramain met its burden by producing non-classified evidence that it had been the subject of such surveillance -including statements by government officials admitting as much. (In addition, the government had inadvertently produced a classified document acknowledging that Al-Haramain was wiretapped, though that document was excluded from the Court's consideration.) Unfortunately, the government refused to respond to the merits of plaintiffs' claims. Rather than dispute whether Al-Haramain had been subject to surveillance, or contend that the surveillance was lawful, the government continued to argue that the state secrets privilege barred introduction of any evidence relevant to those questions.

So it should come as no surprise that the government lost its case. Clearly frustrated by the government's "intransigence," Judge Walker concluded that he had no choice to rule in favor of the plaintiffs after the government failed to address Al-Haramain's claims that it had been the subject of unlawful surveillance.

This "victory" for the plaintiffs is unsatisfying for just about everyone. Because the government refused to respond to the merits of plaintiffs' claim, the case sheds no light on NSA's warrantless surveillance program. Just as disappointing, the government forfeited an opportunity to work with the court and the plaintiffs to create a model for future civil litigation involving classified information. Judge Walker ordered the government to process security clearances for plaintiffs' attorneys and to work with plaintiffs to create a protective order governing use of classified information-all reasonable steps that could have protected the classified information at issue while enabling the plaintiffs to seek judicial review of their FISA claim. Yet the government refused to participate in this process, preferring instead to argue that it alone controls access to information about whether it violated the law. Accordingly, the win is a hollow one for those who hope to see executive branch work with the courts rather than claim immunity from judicial oversight.

[Image via Jinx!.]

U.S. District Court Judge Vaughn Walker rejected arguments initially offered by both the Bush and Obama administrations, ruling that the National Security Administration's (NSA) warrantless wiretapping broke federal law. Walker determined that the program violated the 1978 Foreign Intelligence Surveillance Act (FISA) which requires warrants that the NSA failed to obtain.

Rather than mounting a legal defense of the NSA's program, the Obama administration only argued that the state-secrets privilege required the court to block the suit. Judge Walker bucked the administrations' invocations of the privilege, which he characterized as amounting to "unfettered executive-branch discretion" bearing "obvious potential for governmental abuse and overreaching." Walker's 45-page opinion made no mention of the Bush administration's argument that the NSA acted within the president's war time powers to override FISA.

Writing at Wired's "Threat Level" blog, David Kravets called the ruling "a landmark decision."

"It's the first ruling addressing how Bush's once-secret spy program was carried out against American citizens," Kravets reports. "Other cases considered the program's overall constitutionality, absent any evidence of specific eavesdropping."

Marcy Wheeler outlines the procedural posture and surmises that the Justice Department is unlikely to appeal the case:

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I'll explain in a later post why I think this will present some problems). And it'll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance-tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won't get-unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets-is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I'm betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

[Image via ClintJCL.]

A draft proposal of the Anti-Counterfeiting Trade Agreement (ACTA) has been leaked, and critics are sharpening their attacks on the controversial anti-pirating agreement.

ACTA has long been a subject of criticism. Being negotiated behind closed doors, the multi-national agreement is intended to standardize intellectual property enforcement among participating countries. Critics argue, however, that the secret negotiations shaping ACTA should be made transparent. Leaked reports on the substance of negotiations have also drawn fire.

Today's Washington Post bears an op-ed by Harvard Law professors Lawrence Lessig and Jack Goldsmith who reiterate prior criticisms of both the process producing ACTA and the agreement's substance. Their op-ed also introduces constitutional concerns for how the United States might join the agreement, noting that the administration has suggested enactment without congressional involvement.

"If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives," Lessig and Goldsmith write. "When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied."

"Congress should follow Biden's lead," argue Lessig and Goldsmith.

[Image via Mike Blogs.]