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In today’s Senate Finance Committee hearing on the Obama Administration’s 2012 Trade Agenda, Sen. Wyden pressed U.S. Trade Representative Kirk on ACTA.  He referred to the Obama’s Administration’s assertion that ACTA is legally binding, and asked about the potential consequences. If Congress passes future legislation to enhance competition or to promote innovation on the internet that runs contrary to ACTA, would other countries be able to retaliate? Could they sue the U.S. in an international court?  Kirk declined to answer a hypothetical, but he said that (like all our FTAs) ACTA does nothing to constrain Congress’s ability to regulate safety, health, or the protection of families.  Nothing in ACTA would constrain Congress from acting in the future. If Congress wants to draft additional IPR laws, USTR is happy to work with it to make sure it fits in with our international obligations.  Wyden answered that it seems ACTA “boxes Congress in” and would hamper efforts to write laws on internet freedom and innovation.

Turning to the question of Congressional ratification, Wyden noted that there are debates in many of the other ACTA countries over whether or not the agreement should be ratified.  Why not in the US?  Shouldn’t the Senate be debating this? Kirk noted that he has exchanged letters and had conversations with Wyden’s staff on this matter – and ACTA is an agreement legally entered into by the executive branch. It is based on authority that has been used by previous administrations.

Kirk also claimed that ACTA is an example of USTR acting as directed by Congress. He noted that the PROTECT-IP Act instructs USTR to work with other countries to enhance intellectual property protection. Wyden answered that millions of Americans protested the PROTECT-IP Act, and it was withdrawn.

A webcast of the hearing is available on the Senate Finance Committee’s page on the hearing.