Monthly Archives: June 2012

Regulating the Ocean

The legal and diplomatic battle over regulating the oceans has resumed.  Three decades after the “The Law of the Sea Treaty”-occasionally described as “the constitution of the oceans”– was opened for signing and eighteen years after key amendments prompted signing by 162 signatory nations and the European Union, the U.S. Senate is once again debating the issue, after a five year hiatus.
   The U.N.’s Division for Ocean Affairs describes the Law of the Sea Treaty as “A comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources.  It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole…The convention comprises 320 articles and nine annexes, governing all aspects of ocean space, such  as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters.”
 The Treaty also grants “land locked and geographically disadvantaged states…the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zone of costal states of the same region and sub-region…States are bound to promote the development and transfer of marine technology ‘on fair and reasonable terms and conditions’ with proper regard for all legitimate interests.”
 The Congressional Research Service describes the Law of the Sea Convention and the 1994 amendments as “a legal regime governing activities on, over, and under the world’s oceans…[they are] extensive, complex documents touching on a wide range of policy issues and U.S. interests.  From the perspective of the United States, some of the most significant areas addressed by the [Law of the Sea] Convention deal with naval power and maritime commerce, coastal State interests, marine environment protection, marine scientific research, and international dispute settlement.  The [1994] Agreement focuses on deep seabed mining issues, revising and nullifying key provisions of the Convention.”
   The U.S. has one of the world’s largest coastlines and perhaps the foremost maritime concerns.  This prompted President Reagan to refuse to sign the original version of the document, although he stated that “The U.S. will accept and act in accordance with the provisions of the Convention relating to traditional (non-seabed) uses of the ocean, such as navigation and over-flight.”  As noted by the U.S. State Department, He was concerned that:
·   free market approaches to exploiting the oceans resources were not employed;
·   excess bureaucracy was involved;
·   the U.S. wasn’t guaranteed a permanent seat  on the seabed council;
·   the U.S. would have to transfer technology to other nations; and
·   the treaty didn’t provide guaranteed access to future qualified U.S. miners.
   Since the treaty was modified in 1994 to reflect some of those concerns, Presidents Clinton, G.W. Bush, and Obama have supported ratification of the Treaty.
   Support for the treaty cuts across party lines.  Democrat John Kerry, as chair of the Senate Foreign Relations Committee has pursued the matter, with the support of most Democrats, including Secretary of State Clinton and Defense Secretary Panetta, who believe the treaty might serve as a vehicle to constrain Chinese actions in the South China Sea.  They are joined by prominent Republicans such as Henry Kissinger, George Schultz, James Baker III, Colin Powell and Condoleezza Rice, who collectively penned a recent pro-signing article in the New York Times, claiming that the U.S. would gain economic and military benefits.  They were particularly concerned with resource-rich areas such as the Arctic, where the Russians have staked legally questionable claims.
   The Council on Foreign Relations has emphasized what they perceive to be the Treaty’s benefits to the U.S. military:
“The treaty’s primary value to the U.S. military is that it establishes clear rights, duties, and jurisdictions of maritime states.  The treaty defines the limits of a country’s ‘territorial sea,’ establishes rules for transit through ‘international straits,’ and defines ‘exclusive economic zones’ in a way compatible with freedom of navigation and over-flight.  It further establishes the ‘sovereign inviolability’ of naval ships calling on foreign ports, providing critical protection for U.S. vessels.  More generally, the treaty allows states party to exempt their militaries from its mandatory dispute resolution provisions-allowing the United States to retain complete military freedom of action.  At the same time, the treaty does nothing at all to interfere with critical U.S.-led programs like the proliferation Security Initiative (PSI).  Nor does it subject any U.S. military personnel to the jurisdiction of any international court.”
   Advocates also claim that new levels of piracy, terrorism, and the threat of rising sea levels make ratification necessary.
   Opponents (who have coined the acronym L.O.S.T. to describe the treaty) both elected officials and in the private sector, continue to note that the treaty doesn’t grant any provable benefits to the U.S. that America’s naval power, advanced technology, and enterprising private sector don’t already provide. Further, since the U.S. has the most advanced technology and the greatest ability to utilize the ocean’s resources, it would essentially be providing numerous and highly valuable benefits to other nations and interests and receive almost nothing in return.
  Opposition has been substantial in the United States Senate, where 27 Republican members recently delivered a letter to Majority Leader Harry Reid stating that the treaty “reflects political, economic and ideological assumptions which are inconsistent with American values and sovereignty.”  Noting that the Treaty includes “redistribution of the wealth from developed to undeveloped nations” and other provisions harmful to U.S. interests, the 27 senators stated they are “particularly concerned that United States sovereignty could be subjugated in many areas to a supranational government” and that “compulsory dispute resolution could pertain to public and private activities including law enforcement, maritime security, business operations, and nonmilitary services performed aboard military vessels.”
  Senate opponents remain concerned that portions of the treaty threaten American and free market interests.  They point to the Treaty’s preamble, which notes that “the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of all mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographic location of states.”
  Senators Hatch and Conyn describe the provisions of the treaty as an “international tax” that would transfer billions, if not trillions, of dollars out of the American economy into an international body, as well as entities that may well be hostile to U.S. interest.  Under the treaty, non state groups, such as the PLO, could demand some of the benefits of oceanic resources. Hatch and Conyn note that “U.S. companies would be forced to give away the very types of innovation that historically have made our nation a world leader.”
   The United Nations Law of the Sea Treaty Information Center notes that former Attorney General Ed Meese believes that the treaty is “Out of step with the concepts of economic liberty and free enterprise…”
     U.S. News contributing editor Peter Roff emphasizes that the treaty “is one more step towards a system of global governance under which U.S. sovereignty would be subordinated to an international system managed by an unelected, self-perpetuating form of bureaucratic aristocracy that cares little for democratic traditions…[it] would do irreparable harm to U.S. military and intelligence operations and would force the United States to hand over proprietary technology to countries actively hostile to American interests.
   The Competitive Enterprise Institute‘s analysis of the treaty notes that “at a time when U.S. consumers are struggling with the rising costs of gasoline, the U.S. would eventually have to share oil revenues from development of the Outer Continental Shelf (OCS) beyond 200 nautical miles-roughly 14 percent of the OCS. The royalty rate under Article 82 of the Treaty hits 7 percent by the 12th year of production. The proceeds from U.S. oil exploration would be distributed by the International Seabed Authority to its member states-namely, the Third world majority.  The Treaty best provisions-covering navigation, for instance-largely codify existing international law.  Its worst provisions-those creating the seabed regulatory regime-would discourage future minerals production as well as punish entrepreneurship in related fields involving technology, software, and intellectual property that have an ocean application.”

   Supporters of the treaty have made a considerable case for the treaty’s benefits to the world at large, particularly third world nations.  They have failed, however, to clearly define what economic benefits the U.S. would gain from accession to it.

Banning Food, Banning Freedom

The increasing role of government in the private life of American citizens has been portrayed as almost inevitable.  However, recent attempts to regulate the size of soft drinks brought the glare of ridicule to this trend.  The alleged good intentions of politicians in dictating personal matters raises the question of whether government has gone far beyond the functions authorized by the Constitution, at the cost of neglecting the real and pressing needs of the nation. It also raises the issue of whether there is an additional, less discussed, agenda at play.

  A salient example comes from America’s largest city, New York, which faces major problems. While the crime rate both in New York State and The United States is falling, serious crime in the metropolis is rising.  Its unemployment rate is 10.2%, far above the national average of 8.2%.  Half of its 8th graders fail statewide science tests.  Major infrastructure issues exist.  Budgetary concerns may cause the closing of firehouses. Taxes are exceptionally high.
  The Big Apple’s mayor, Michael Bloomberg, however, has other concerns on his mind.  Much of his time and attention has been spent on the dietary habits of his constituents.  He has vigorously addressed his displeasure on what he perceives to be the excess intake of calories, sugar and salt by his jurisdiction’s residents. (The mayor has also authored other bizarre decisions.  In a 2010 snowstorm, his administration’s transportation chief ordered the plowing of a bike lane before many key roadways were cleared; at least one death was attributed to the inability of an ambulance to make a timely arrival.)
  The growing gap in the time elected officials spend addressing personal peeves and the performance of their actual duty to deal with traditional governmental responsibilities has become a contentious issue on the local and national levels.  (It’s not only elected officials who are guilty of this.  The Occupy Movement was widely criticized as focusing on generalized, and rather confused, complaints about society rather than on specific challenges government can actually meet.)
 Americans increasingly perceive that their government’s emphasis on personal matters is misguided, as revealed by a Rasmussen poll taken in June.  Only 24% agree with Bloomberg’s recent attempt to ban the sale of large soft drinks, which would be imposed by the city’s unelected Board of Health at his whim, without the input of the electorate or even the local City Council.
  The response from civil libertarian think tanks has been scathing.  CATOInstitute’s David Boaz writes:
   “In a free society, government doesn’t make our personal decisions for us.  We don’t need a Big Brother or a mayoral nanny.  We have the right and the responsibility to make our own decisions, so long as we don’t interfere with the rights of others.”
   CATO has monitored the development of our overregulated society for some time.  Its policy analyst Radley Balko used the writings of Pulitzer-prize winning economist James Buchanan as part of the basis of his study.  “Conventional threats to freedom,” Buchanan wrote, “from…central planning…and…the welfare state…are today joined by…paternal socialism…which [is the] willingness among many to allow the government to take control of their lives.  The emerging threat to American liberty today, then, is…the desire among some in government to interfere in nearly every aspect of our lives, and the lack of concern on the part of many Americans that this is happening.”
  Contrary to the impression that the would-be food regulators give, Americans are not increasingly unhealthy.  The CATO study emphasized that Americans are living longer than ever.
   James Gattuso, writing in The Foundry, stated:
“Contempt for consumers is…at the heart of this proposal.  It has the distinct smell of elitism about it…the Great Unwashed…can’t be trusted with their own health…they should not be allowed to spend their money on Mountain Dew; they should spend it on vanilla lattes as their betters do.”
   The concern is not confined to conservative think tanks.  PJ Media recently asked, “If government bureaucrats can ban the types of fast food outlets available, manipulate the size and types of drinks we consume, and regulate every aspect of food preparation, what couldn’t they attempt to ban?…Will Bloomberg next propose a measure limiting red meat intake…Will the nanny state do-gooders ban hot dogs, or force Americans to take part in government exercise programs…?”
  A Hoover Institution study noted that “The current unease is rising among people who are comfortable with some substantial government role in providing jobs, supporting agriculture, subsidizing health care, financing education, or regulating banking.  They have the visceral sense that things have gone too far.  They are clearly fortified in their view by the chronic levels of unemployment…in the face of an ill-conceived stimulus program that seems to have done nothing to improve overall productivity.  And they are not amused when government pads its payroll with folks who don’t do much of anything useful.”
 Parallels have been drawn between Bloomberg’s elitist impulses and President Obama’s Health Care law.  NPR reports that “some Bloomberg critics on social media did detect a nanny state axis…and warned that Bloomberg’s proposal could be a vision of the future under Obama.”
 Conservatives have long warned that if the government is responsible for your health care, it will soon claim the right to determine what behaviors you should or should not do that affect what it will have to pay to keep you healthy.  The Washington Examiner’s Philip Klein notes that Bloomberg, in defending his ban, quoted a supporter who wrote that “anyone who pays taxes and thus bears the health care costs…should support this.”
  “Ultimately,” Rasmussen notes, “Bloomberg’s ban on large sugary drinks highlights the gap between the American people and their political leaders.  Most Americans are looking for ways to change the system so that they can make their own health care choices rather than have decisions imposed on them.  The political class wants to make those choices for us.  That’s the key question in the [national] health care debate.  Who do you trust more with important decisions:  the government or the people?”
   NYC is not alone in its intrusiveness.  Author David Harsanvi writes that “countless busybodies across the nation are rolling up their sleeves to do the work of straightening out your life.  Certain Massachusetts towns have banned school-yard tag sales.  San Francisco has passed laws regulating the amount of water you should use in dog bowels.” There are numerous other examples, some of which would be comical if the implications for civil liberty were not so serious.
   Rasmussen’s other recent polls provide an indicator of what the majority view on that issue is.  Another June poll demonstrated that 51% believe “that government is more of a threat to individual rights than a protector of them.”  An April poll revealed that “only 22% believe society would be become more fair if there was greater regulation.”
 Interference in personal matters extends beyond food.  Increasingly, education has been the battlefield where elitist attempts to regulate personal behavior have been launched.  Legal writer Elie Mystal recently wrote about the New York State Department of Education’s weird decision to ban words (are book burnings far behind?)  that they deem too controversial.  The outcast words weren’t curses or racial insults.  They included “birthday,” (it might offend Jehovah’s Witnesses) and dinosaur (which could anger creationist) as well as other harmless phases.
  It is not inappropriate to ask whether there is another agenda involved.  Many of the foods that have been objected to by the would-be nannies are the same or similar to those that were the target of anti-American protestors overseas who demonstrated at fast-food outlets such as McDonalds.
 Similarly, educational bureaucrats seem to have a penchant for banning American cultural icons. A California school sent home a student who wore a U.S. flag t-shirt on Cinco de Mayo.  A principal in Brooklyn has forbidden the singing of “God Bless America” in the odd belief that the tune would be offensive to some.
  We seem to have arrived at a time when previously unquestioned values–important ones such as personal freedom and patriotism, and lesser ones, such as the foods we eat–are no longer shared by some elitist bureaucrats. They appear anxious to subdue traditional expressions of American culture in favor of multiculturalism.
  Eugene Miller, in his study of F.A. Hayek’s opus, The Constitution of Liberty, stresses that Hayek believed that the west, as a whole, is losing faith in the principles of liberty.   Government, Hayek noted, must be prevented from using coercion improperly.

   There’s a lot more at stake than your right to quench that thirst with a large Coke.

Abandoning Space

The substantial troubles faced by the U.S. economy have been made worse by Americas’ gradual loss of technological superiority to other nations.  The most salient example of this is the nation’s vaunted space program, the preeminence of which has been sharply diminished due to budget cuts. Can privatization of space activities restore the country’s leadership in this crucial realm?
   The successful mission of the SpaceX company’s Dragon space craft, launched by the corporation’s own rocket, Falcon 9, provided a desperately needed boost to American space fortunes.  The nation’s credibility had been severely reduced when the Shuttle era ended with no replacement capable of engaging in the orbital activities necessary to maintain a strong presence in space.  It is highly disturbing that after winning the race to the moon and outlasting the very existence of its chief rival, the Soviet Union, Washington is currently incapable of putting an astronaut into space and must pay Moscow to ferry astronauts to orbit.  China, which has also launched men into space, is currently more capable of manned space flight than America. Beijing has embarked on an exceptionally ambitious program that includes plans for its own orbiting space station and trips to the Moon.
   The U.S. has no plans for reestablishing a manned space program until 2017, at the earliest.  But as any observer of federal budgetary practices knows, plans that go beyond the tenure of the current administration are not guaranteed, so even that date can’t be certain.  Just as Spain lost its preeminence in exploration to Great Britain centuries ago, the United States is in danger of surrendering its leading role in space to other nations, particularly two nations which are not friendly to America.
   Commentator Charles Krauthammer notes that while in the future private companies will have a vigorous portion of space activity, that future remains decades away, and “In the interim, space will be owned by Russia and China.”
  Democrats in Congress during the Bush (43) administration began to grumble that America’s future plans would spend funds they felt should be committed to domestic programs. President Obama acted on those concerns after taking office. The vast sums he spent on stimulus programs included nothing for NASA. Republicans have failed to vigorously opposed the lack of White House support, and have not made the matter a significant issue.  Indeed, they too have at times been less than supportive of NASA’s needs.
   It’s not only manned space flight that has been slashed by the Obama White House.  According to the Planetary Society, “The U.S. Administration’s proposed budget for fiscal year 2013 would force NASA to walk away from planned missions to Mars, delay flagship missions to the outer planets for decades, and gradually slow the pace of scientific discovery…if this budget is allowed to stand, the United States will walk away from decades of greatness in space science and exploration.  More than that, the U.S. will lose expertise, capability and talent…we’ll quickly stop producing scientists, technicians, and engineers that can lead.”
   Both Presidents Bush (43) and Obama gave more verbal than fiscal support to the space program, (which even when “fully funded” receives only about 1/2 of 1% of the federal budget.  A space research advocacy publication, Mars Daily, notes that Russia commits a higher portion of its GDP to space industry than the U.S.) but the recent cuts under the current administration have been the most severe. The detrimental impact on the general American economy from defunding space efforts can’t be overstated.  Over 94% of every dollar funding space sciences goes to universities, industries which provide well paid positions, and other organizations.  As reported in a previous NY ANALYSIS OF POLICY & GOVERNMENT report, up to 27,000 skilled and related positions may be lost due to the underfunding of space activity.
  According to statements made by former House Majority Leader Tom DeLay to the Washington Times, “The absolute lack of understanding of the importance of human space flight that this administration demonstrates is mind-numbing…the issue isn’t just jobs, although, of course, in this economy every job is precious…it isn’t even about America being #1 in the world…it isn’t even [only] about national security and the need to maintain our industrial base…there is something innate in humanity that calls us to [explore.]”
  Private companies are attempting to fill at least part of this void, with significant support from the public. According to a Wall Street Journal poll, 76% of Americans enthusiastically support corporate efforts.  The concept of allowing the private sector to boldly go where only governments had gone before actually began with President Reagan’s 1984 signing of the Commercial Space Launch Act.  It was supplemented in 1990 when President Bush (41) signed the Launch Services Purchase Act. Russia has also seen private ventures interact with government space efforts.
  The extraordinary success of the DRAGON mission to the International Space Station is a landmark in the privatization effort.  According to Philip McAlister, NASA’s Director for Commercial Space Flight Development, “NASA is working with private industry in an unprecedented way, cultivating innovation on the path toward maintaining America’s leadership in space exploration.” This represents a change of heart on the part of the space agency.  According to Lewis Solomon, author of  The Privatization of Space Exploration, “For too long, NASA’s culture remained indifferent, if not hostile, to commercial activity.”
  Approximately $381 million was committed by NASA for the DRAGON effort. Complementing unmanned plans, NASA’s Commercial Crew Program will attempt to launch astronauts using private facilities and vehicles. SPACEX  seeks to accomplish that goal in about three years.
  NASA is still developing its own ORION manned capsule, an advanced version of the old APOLLO spacecraft that will utilize a new launcher to place Americans into space.  Funding issues continue to plague the effort, however.
  NASA essentially plays the role of the chief, and in many cases sole, customer of advanced space technology under its Commercial Orbital Transportation Service program (COTS), an effort that began in 2006 with investments of about $800 million. That figure does not cover any private manned space craft which a number of companies are developing for a variety of uses, including space tourism. The goal is to use the private sector to provide space services in a less costly manner than a government-run program could.
  A NASA document states that “Under COTS, NASA is helping commercial partners develop and demonstrate their own cargo space transportation capabilities to serve the U.S. Government and other potential customers.  The companies lead and direct their own efforts, with NASA providing technical and financial assistance.”
  NASA wants to outsource to the private sector all cargo and crew missions to the Space Station by 2017.  However, both the Senate and the House have sliced funding from the effort.  Critics both in and out of government have complained that NASA should select a single contractor, rather than encourage competition among a number of companies, in an effort to accelerate progress and end America’s embarrassing inability to launch its own astronauts.
  Other obstacles affect private sector initiatives, as well.  Uncertainty over a number of international legal issues may chill corporate efforts.  An “International Code of Conduct for Outer Space Activities” may impose unforeseen burdens on private, military and civilian efforts. The Obama Administration favors the Code, and has not included Congress in his deliberations.  Congress has expressed concern over potential issues, and has enacted measures to counter the Administration’s plans.

  The United States must rethink its diminished emphasis on space exploration and exploitation immediately.  Even the most hard-pressed farmer knows that eating the seeds meant for the next harvest is a bad idea.  Withdrawing from the arena that will be a prime focus of economic wealth in the coming years in order to save a relatively minute amount is a terrible investment strategy.


Members of the United Nations will meet this coming December at theWorld Conference on International Telecommunications in Dubai to conduct negations that will impact the future of the internet. The freedom to engage in uncensored political speech is at stake.
   Despite the seriousness of the topic, there will be little public input at this government-only meeting.  Several nations, particularly Russia, China, North Korea and Iran are expected to vigorously push for the legal ability to control the internet beyond their own borders. Worried advocates of continuing free speech have demanded more openness in preparations for the landmark meeting, and that no change be made to the unrestricted nature of discourse within this powerful medium.
 Summarizing the recent Toronto Conference on Internet Issues,Cyberdialogue 2012 noted that “Positions are solidifying around two very different visions marked by strong ideological undertones…the current situation represents a battle over values: the value of an open, democratic cyber commons on the one hand versus a closed state-dominated architecture on the other.  The internet has become the strategic and operational centre of gravity in this battle, while states are using different instruments of power and persuasion to shape or control it.”
   The impact of the internet on dictatorial countries has been traumatic, and authoritarian leaders are reacting.  As noted by United Nations Secretary General Ban Ki-Moon last month, in 2011 60 journalists were killed, the highest level since the 1990s. In 2012, one journalist has been murdered every five days. “…countless others faced intimidation, harassment and censorship at the hands of governments, corporations and powerful individuals seeking to preserve their power or hide misdeeds.”  Arrests and killings of those writing on the internet have been increasing in number. U.N. General Assembly Chair Nassir Abdulaziz Al-Nasser noted that the “Arab Spring” would not have occurred without the internet, as noted in UN Document OBV/1099.
   In 2011, Secretary of State Clinton noted that China has pressured private companies to engage in “self management, self-restraint, and strict discipline.”  In other words, Beijing forced the private sector to self-censor out of fear of being excluded from the lucrative Chinese market.  However, rather than championing the concept of unrestricted free speech, she noted last December that “…delivering on internet freedom requires cooperative actions…”
  Clinton’s State Department has failed to adequately combat internet censorship, according to the Global Internet Freedom Consortium.  In fact, although Congress provided $50 million in funding to the State Department for this fight, little has been done.
   Unlike the American concept of First Amendment rights, Secretary General Ban Ki-Moon has echoed those who believe in censorship by stating that “considering the immediate impact of information in the digital world, journalists must be much more responsible in their work to ensure accuracy, balance and fairness, and not use the media to disseminate hatred or conflict, or incite violence.”  Unfortunately, the definitions of “accuracy, balance, fairness and inciting” would be left to the same rulers who internet writers may be opposing.  The fact is, both governments and other powerful institutions have increasingly killed, arrested or censored internet journalist.
   Raven Clabough writes that China, Russia, Tajikistan and Uzbekistan are introducing a resolution at the U.N. to establish an internet “governance” concept that would insert censorship into this most democratic of media.
   “These authoritarian countries have pushed an agenda to censor the internet in a variety of forums.  In 2011, they suggested at the U.N. General Assembly that a code of conduct be introduced for the use of the internet through international law.  They also proposed the creation of a separate UN “super agency” to be responsible for managing all aspects of internet policy…Last year, Russian Prime Minister Vladimir Putin met with the head of the [UN’s] International Telecommunications Union [ITU] and declared ‘international control over the internet’ to be vital.  Former UN Ambassador David Gross contends that “in the…[December] conference…countries such as China and Russia will once again attempt to expand the authority of the ITU.”
   In addition to the well-known authoritarian regimes, Brazil has vigorously pursued the concept of “policing” the internet.  Former U.S. Rep. Rick Boucher (D-Va.), who once served as chairman of the House’s Subcommitee on Communications, technology and the Internet, and co-founded the Congressional Internet Caucus, believes that once the Pandora’s Box of regulation is opened, the censorship impulse will continue to grow stronger.  “The serious danger of imposing greater regulatory control over the internet’s “hub” is that multinational regulation naturally moves in the direction of the most aggressively regulatory regimes.”   He notes in a Politico article that “It is particularly curious that China is now advocating for greater centralized control over the internet-when it is already so successful at imposing rigidly authoritarian web regulations on its own citizens.”
 Concern has been mounting in Washington about the Obama Administration’s position on the issue.  Prior to 2010, according to a National Research Council report cited in Cyberdialogue, the USA, for the most part, avoided international “cooperation” regarding the internet.  However, the Obama Administration has changed this.
  The major shift could be seen in the White House’s acceptance of the innocuous sounding but worrisome Anti-Counterfeiting Trade Agreement, or “ACTA.”   The general purpose of the measure is to establish global standards and an international legal framework to enforce intellectual property rights, copyright laws, etc., a goal that is clearly in American interest. But both the means it uses to do so, and the manner in which the President imposed its provisions, has caused extraordinary concern to civil libertarians and constitutional traditionalists.
 Under the treaty, signed by President Obama last October, foreign corporations are entitled to demand that internet service providers (ISPs) remove web content within the United States without any court supervision.  The precedent this sets will be used as a bedrock precedent for authoritarian nations to demand that critical comments be removed from U.S. websites in future treaties.
  Equally as worrisome is the manner in which Washington “ratified” the measure.  The treaty has been presented by the White House as  an “executive agreement,” circumventing any interaction with Congress.  As noted in theIndependent Political Report, “by signing ACTA without Senate approval, Obama has called his commitment to internet freedom into question.  As noted in a Forbes review, “The treaty has been secretly negotiated behind the scenes between governments with little or no public input…ACTA bypasses the sovereign laws of participating nations, forcing ISPs across the globe to act as internet police…opponents say the convention adversely affects fundamental rights including freedom of expression and privacy.”
   The rising threat of governmental censorship and lawsuits is threatening the internet’s freedom.  A Boston College International and Comparative Law Review analysis written by Kevin Meehan notes that:
   “Many internet content providers are faced with the uncertainty of being sued in unanticipated jurisdictions for violating unknown laws with untold consequences. Their fear is grounded in a realty demonstrated in a Brazilian court order entered against Google subsidiary YouTube, which resulted in at least one Brazilian telecom company blocking the site from its internet users.  Although the judge vacated his order shortly after the ban went into effect, this libel case demonstrates the enormous impact internet jurisdiction can have e-commerce.”
   Other cases, notably one involving Yahoo! and the French courts, have had a chilling effect on U.S. ISPs, even though they have not yet overruled 1st Amendment protections. Franz Mayer, in a review essay entitled The Internet and Public International Law-Worlds Apart? emphasizes that experts such as Stanford Law Professor Larry Lessig  detect a trend towards “more and more regulation through code under the influence of commerce, which, according to him is not inevitable, as there is a choice as to what cyberspace will look like and what freedoms it will guarantee.”
   Can legitimate concerns such as copyright protections be addressed by an overarching international regulatory super agency, without impeding American 1st Amendment rights?   Increasingly, the answer appears to be a resounding “no.”  Mark Joyce, in an article entitled Censoring Cyberspace: A Free Speech Analysis of the Problems, Controversies, and Possible Solutions Posed by International Internet Regulation, notes that “An international agreement, while perhaps a good idea in theory, is ultimately an unrealistic objective, given the vast range of perspectives, across the international spectrum, on exactly what content should be protected and what should be prohibited.” Joyce concludes that simpler cooperative efforts on a state to state level offer more practical solutions.
   The very fact that international meetings involving new internet regulatory discussions are held largely apart from public scrutiny and participation is sufficient to warrant deep and substantial distrust. Americans have protected their Constitutional rights against foreign military threats for over two centuries. It is highly inappropriate to allow them to be limited now under the aegis of an unelected international regulatory agency.
   Neither the President nor the legislative branch possesses the constitutional authority to limit free speech rights under any international internet regulatory framework.