New Petition Asks White House To Submit ACTA To The Senate For Ratification

from the as-required-under-the-constitution dept

As we noted in our post about people just discovering ACTA this week, some had put together an odd White House petition, asking the White House to "end ACTA." The oddity was over the fact that the President just signed ACTA a few months ago. What struck us as a more interesting question was the serious constitutional questions of whether or not Obama is even allowed to sign ACTA.

In case you haven't been following this or don't spend your life dealing in Constitutional minutiae, the debate is over the nature of the agreement. A treaty between the US and other nations requires Senate approval. However, there's a "simpler" form of an international agreement, known as an "executive agreement," which allows the President to sign the agreement without getting approval. In theory, this also limits the ability of the agreement to bind Congress. In practice... however, international agreements are international agreements. Some legal scholars have suggested that the only real difference between a treaty and an executive agreement is the fact that... the president calls any treaty an "executive agreement" if he's unsure if the Senate would approve it. In other words, the difference is basically in how the President presents it.

That said, even if Obama has declared ACTA an executive agreement (while those in Europe insist that it's a binding treaty), there is a very real Constitutional question here: can it actually be an executive agreement? The law is clear that the only things that can be covered by executive agreements are things that involve items that are solely under the President's mandate. That is, you can't sign an executive agreement that impacts the things Congress has control over. But here's the thing: intellectual property, in Article 1, Section 8 of the Constitution, is an issue given to Congress, not the President. Thus, there's a pretty strong argument that the president legally cannot sign any intellectual property agreements as an executive agreement and, instead, must submit them to the Senate.

This is why Senator Wyden has asked the President to explain why Congress has been cut out. Scholars have noted their concern that if allowed, this will open the door to allowing the president to regularly route around Congress on international agreements. Even more amusing, Vice President Joe Biden, back when he was just Senator Joe Biden, was one of the most outspoken critics of an attempt by President Bush to use an executive agreement on a weapons treaty -- forcing Bush to take the agreement to the Senate. Yet here, he stays quiet.

Either way, it looks like folks have figured this out, and there's now a new White House petition, demanding that ACTA be brought to the Senate before it can be ratified/signed by the US. This petition should be a lot more interesting than the other one if it gets enough signatures (so encourage people to sign, please!).


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 7:31am

    before it can be signed by the US?

    Can you undo a signature?

    Are we ready to stop this in the Senate? If the senate lets the issue die in committee, or it's never brought to the floor, does that excuse us from the agreement? Or do we need an absolute NO vote to make that happen?

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Jan 25th, 2012 @ 7:34am

    Wow, either you're very on the ball or you know the guy who made this petition yourself. When I went there, there was only 37 signatures.

    Anyways, I agree, everyone should sign this if it's a clear sign of 'referees turning the other way'. We cannot let this slide.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Pixelation, Jan 25th, 2012 @ 7:38am

    Biden staying quiet on this one shows just how deep the entertainment industry is in his pocket. He should stick to foreign policy.

     

    reply to this | link to this | view in thread ]

  4.  
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    MattP, Jan 25th, 2012 @ 7:41am

    You should use the preface 'In other words' rather than 'Another words' when rephrasing a sentence.

    -----

    On topic, excellent article Mike. With the recent activity from SOPA/PIPA I'm interested to see how the public responds when ACTA is put under a little scrutiny.

     

    reply to this | link to this | view in thread ]

  5.  
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    Jeff (profile), Jan 25th, 2012 @ 7:42am

    Signed! #52

     

    reply to this | link to this | view in thread ]

  6.  
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    Lowestofthekeys, Jan 25th, 2012 @ 7:44am

    Steven Seagal

    Executive Agreement...the sequel to Executive Decision?

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    That Anonymous Coward (profile), Jan 25th, 2012 @ 7:46am

    Well Dodd already told them hes not paying them anymore, so its time to undo everything they managed to sneak in.

     

    reply to this | link to this | view in thread ]

  8.  
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    MadCow (profile), Jan 25th, 2012 @ 7:48am

    I signed this petition and the petition to have Dodd investigated. If congress really is being fed money from RIAA/MPAA I don't really expect much to happen but I can at least say that I'm actually trying to make a difference. I've also posted both petitions on my facebook to try and get the word out.

     

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  9.  
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    Robert (profile), Jan 25th, 2012 @ 7:51am

    Signed #70

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 7:53am

    As I've been saying for a while now:
    There is the Republican Philosophy and the the Republican Party, which does little more than pay lip service to the philosophy.
    There is the Democratic Philosophy and the Democratic Party, which does little more than pays lip service to the philosophy.
    And at this point I'm finding it hard to figure out what party stand where, the keep playing dozedo so much.

    I fail to see how this president is really any sort of improvment over the one we had for the previous 8 years.

     

    reply to this | link to this | view in thread ]

  11.  
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    Anonymous Coward, Jan 25th, 2012 @ 7:56am

    Ladies and gentlemen, the petition has already reached and gone beyond the required 25,000 signatures. Here is my challenge: Every day from now till February 20th, I want to see an additional 25,000 signatures. EVERY DAY. And! just for fun, sign this thing too:

    http://www.petitiononline.com/stopacta/petition.html

    If they view new-age methods of protest as "not counting," then let's hit them with the tried and told methods they're legally required to acknowledge.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 7:56am

    Re: Re:

    These are slightly different, but essentially asking for the same thing. In the one you linked they are saying that it is an executive agreement and we should not be apart of it. In the one Mike linked they are challenging the legitimacy of the 'executive agreement' and saying that it should be forced to the Senate instead of allowing Obama to get away with this.

     

    reply to this | link to this | view in thread ]

  13.  
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    Call me Al, Jan 25th, 2012 @ 8:03am

    The straw that broke...

    I find this quite amusing really. For years the content industry has had the run of the Congress, the Whitehouse etc because of the general apathy of the voters in the US.

    With SOPA and PIPA though they seem to have gone a step to far. They woke up the voters who suddenly looked around and thought "Hang on a minute. We're getting screwed here." and who then campaigned accordingly.

    Flush with the apparent victory over SOPA those newly awoken voters, not yet ready to return to their slumber, looked at their surroundings and noticed other things that they disliked, with one of them being ACTA.

    The greed and control-freakery of the RIAA and their ilk has gone too far and now they should be punished for it. Just because voters are apathetic for much of the time doesn't mean you can take advantage of them with impunity.

     

    reply to this | link to this | view in thread ]

  14.  
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    Anonymous Coward, Jan 25th, 2012 @ 8:11am

    could there be a hint of dictatorship taking place? reminds me of some other countries. not democratic ones though.

     

    reply to this | link to this | view in thread ]

  15.  
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    The eejit (profile), Jan 25th, 2012 @ 8:13am

    Re:

    The US is becoming one, sure. But if you're talking about the public being a dictatorship, well, yes. that's the point.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 8:13am

    Another petition that needs some love

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 8:14am

    Executive Agreements should ALL be declared unconstitutional, not just this one.

    The whole reason executive agreements were thought up is so presidents could secretly agree to military plans/deals with foreign countries without news of it leaking back to our enemies. It was unnecessary to even create a new 'treaty' for such a situation, the president is commander in chief of the army, he can just tell military what to do. As long congress has declared war the president can tell the military to invade a foreign country however he wants (declaring war is another thing we need to bring back, presidents have gone to war much more frequently since we stopped declaring war).

    Bottom line, executive agreements are nothing but presidential power grabs.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    MattP, Jan 25th, 2012 @ 8:18am

    Re: Re: Re:

    Yes they are slightly different. I was posting the other one as most people here would be interested in both.

     

    reply to this | link to this | view in thread ]

  19.  
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    Haywood (profile), Jan 25th, 2012 @ 8:24am

    All I get is a loop when attempting to sign

    Th sign button is grayed out, and sign in takes you back to the profile page you can then navigate to the petitions page and attempt to sign where you are prompted to sign in, lather rinse repeat.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 8:30am

    Exec. Agreement/Treaty Distinction

    Just to clarify, the fact that another country calls an international agreement a "treaty" while the US calls it an "executive agreement" is perfectly normal. The reason is that the distinction between executive agreements and treaties is a purely-US thing, based on how our Constitution divvies up foreign relations powers between the branches of gov't.

    In other words, this is entirely a question of US law, not international law. Generally speaking, all international agreements are called treaties for purposes of international law, but member States are free to call them whatever they like for domestic purposes.

    I don't mean to say that ACTA is or isn't an executive agreement versus a treaty for US purposes, but just that how other countries treat the agreement for their own domestic purposes is irrelevant.

    This is separate from the question of how much leeway Art. 2.1 gives countries when they implement ACTA.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 8:33am

    'Please Submit ACTA to the Senate for Ratification as Required by the Constitution for Trade Agreements'

    a hell of a lot of signatures needed for this petition. however,

    'End ACTA and Protect our right to privacy on the Internet'

    and the

    Investigate Chris Dodd and the MPAA for bribery after he publicly admitted to bribing politicians to pass legislation

    petitions are passed the required numbers. outcomes will be interesting!

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    John Fenderson (profile), Jan 25th, 2012 @ 8:38am

    Re:

    Not dictatorship at all. More like oligarchy, and much more than just a hint.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Stuart, Jan 25th, 2012 @ 8:46am

    Whoops

    Hey Mike.
    What exactly does "Another words" mean?

    :)

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    wec, Jan 25th, 2012 @ 8:54am

    World:
    If it looks like a duck
    If it walks like a duck
    If it quacks like duck
    We agree it is a duck

    US Exec. Branch
    If it looks like a duck
    If it walks like a duck
    If it quacks like a duck
    This time I will call it a Robin

     

    reply to this | link to this | view in thread ]

  25.  
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    Gwiz (profile), Jan 25th, 2012 @ 9:02am

    Re: All I get is a loop when attempting to sign

    It requires javascript. Are you running NoScript or something similar?

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 9:09am

    Re: before it can be signed by the US?

    Have to agree. How do you unring the bell? What happens if it goes to the Senate and someone puts a hold on it? What if the leader doesn't schedule it for floor time. Methinks it is too late.

     

    reply to this | link to this | view in thread ]

  27.  
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    E. Zachary Knight (profile), Jan 25th, 2012 @ 9:18am

    Re:

    Mike doesn't have to know the people creating the petitions. He get's emails from many people regarding things happening. This just so happened to be one of them.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    E. Zachary Knight (profile), Jan 25th, 2012 @ 9:22am

    Re:

    The particular petition mentioned in this article is not at 25,000. The previous Stop ACTA petition is the one at 25,000.

    So we have two petitions against ACTA tackling it from slightly different angles. This particular one has more of an impact if it were to reach 25,000. So sign this one too.

     

    reply to this | link to this | view in thread ]

  29.  
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    Yartrebo (profile), Jan 25th, 2012 @ 9:23am

    Re: Re: before it can be signed by the US?

    It never got the needed signature (from Congress) in the first place. It's like a forged check. There's a signature on the document, but it isn't the legally required one, and the whole document is null and void.

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    E. Zachary Knight (profile), Jan 25th, 2012 @ 9:24am

    Re: Another petition that needs some love

    That is certainly one I can get behind. I will have to sign it when I get home. Too bad they didn't specifically mention making copyrights something that has to be applied for rather than being automatic.

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    Paul (profile), Jan 25th, 2012 @ 9:30am

    The Petition needed 150 Signatures to be searchable...

    ~36 signatures prior to the Techdirt article

    A few hours pass

    300 signatures!

    Wow.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    iamtheky (profile), Jan 25th, 2012 @ 10:34am

    Re: The Petition needed 150 Signatures to be searchable...

    I was signature #30, and that was immediately following the Techdirt post appearing on my homepage. Just for accuracies sake.

     

    reply to this | link to this | view in thread ]

  33.  
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    f0nZi3 (profile), Jan 25th, 2012 @ 10:34am

    Signed! #402

     

    reply to this | link to this | view in thread ]

  34.  
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    Violated (profile), Jan 25th, 2012 @ 10:51am

    Re:

    Foreign policy? Us foreigners sure hope not!

    If he went that route he would have to hop into bed with Hilary Clinton. I can't say they are quite that friendly even if Joe once did Hilary's speech when she was feeling quite poorly.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Swan, Jan 25th, 2012 @ 11:08am

    I immediately signed it as soon as I read the article, and I also posted it on facebook in hopes of getting some of my friends to sign it, too. I hope that this will not just get tossed aside, as this is a highly important issue on copyrights and intellectual properties and the way they're viewed internationally. They'll have 50,000 signatures regarding ACTA (even though some of them will be the same people signing both, but not all of them), I don't think this is something that can easily be ignored.

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    Violated (profile), Jan 25th, 2012 @ 11:09am

    Re: The straw that broke...

    I don't think things our quite as you put it.

    For a long time we have been at the end of the "whipping stick" and simply defending ourself as best we can. Hiding has worked best there.

    What happened with SOPA is that we got so mad that we took the whipping stick away from them. This turned out to be quite a surprise when we have just realised our true strength.

    Obviously it is not a good idea to hand the means of our punishment back to the people who would flay us to an inch of our lives... had the old woman named Congress let them.

    So now we are prancing around swooshing this stick. Point it here and gab it there. Getting a feel and building up courage.

    We all know what needs to be done. If we are to be left alone to a peaceful life then we have to turn this whipping stick against those who once attacked us and hurt us.

    And when that counter attack finally begins it will be brutal. An event they will remember for decades to come.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 11:12am

    Correct me if I'm wrong...

    Maybe the reason Obama's trying to go around Congress in the first place is the "fact" that he believes he couldn't get anything done because Congress kept cock-blocking him when he wanted to try to fix the economy.

    Frustrated with being constantly denied by the Republican majority, he signed ACTA so he'd finally be able to accomplish the things that he had promised to do when he got elected in the first place (without the constant party barrier he's had to deal with).

    If I'm wrong, could someone please explain what the real situation is to me? I know this could have serious ramifications in the future, but I don't understand what they are...

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Violated (profile), Jan 25th, 2012 @ 11:15am

    Re:

    I guess that is why the United States is the only country in the world to now class a tomato as a vegetable.

    That led to a whole host of pizza jokes.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    Hephaestus (profile), Jan 25th, 2012 @ 11:18am

    Signed 510, plus forwarded it to Anonymous (person, and page) on G+. Lets see if they do anything with it.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Hephaestus (profile), Jan 25th, 2012 @ 11:20am

    Re: Correct me if I'm wrong...

    If I am remembering correctly, it was going to be an executive agreement before Obama was elected.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    John Doe, Jan 25th, 2012 @ 11:40am

    Re: Correct me if I'm wrong...

    Revisionist history much? The Dems had a super majority for 2 years and ran the whole shooting match. They could have done anything they wanted and what did the choose to do? Pass the 2 biggest spending bills in the history of man. Did they do anything to pay for those bills such as tax reform? Nope. Now they want to make it an election year issue. Guess why that is? Two reasons:

    1. The Dems are as rich as the Repubs and don't want to pay any more taxes than they have to.

    2. The poor are their tax base and it has been shown that as people make more money they tend to become conservative. You can't have your voter base not depending on you for table scraps now can you? So the Dems pay lip service to the poor huddled masses all the while working to keep them poor and huddled.

    I am not saying the Repubs don't have their own problems, but the myth of the Dems being for the little guy has to end.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 12:05pm

    This current president has done all that he can to get around the constitution and congress remember this is a so called constitutional that said that the constitution was a list of negative liberties.
    Most of the things that the government does now are not allowed by the constitution.
    Why did it take an amendment to ban alcohol, but when the marijuana tax act was declared unconstitutional all that congress did was create a drug law that allowed a non elected paper pusher to say what drug was good and what was bad.
    The president is now doing the same thing to government without the action of congress.
    This is whats called a dictatorship and the president now has the power to have the military lock up anyone without "you shall have the body".

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    mark, Jan 25th, 2012 @ 12:34pm

    Tried to sign

    I tried to sign in and currently, every time I try to sign the treaty, I get asked to log-in. I log-in, try to sign and get asked to log-in. The sign the petition button remains greyed out.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 1:13pm

    America looking more and more like developing countries, the president now wants to govern by decree.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 1:17pm

    Re: Re: Correct me if I'm wrong...

    Okay, I think I understand now. Thanks!

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    mischab1, Jan 25th, 2012 @ 1:34pm

    Re: Tried to sign

    Someone else said the problem was enabling JavaScript, but I'm not real sure. I had the same problem you are having on Monday and I was using vanilla Chrome. Today the site is working just fine. Same computer, same browser, etc.

    Did you change your password today? The only thing I know that was different for me is I had forgotten my password and had to reset it.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    cennis (profile), Jan 25th, 2012 @ 2:52pm

    place your bets

    Does anyone else want to place bets on how long before the White House petition system goes away? I'm giving it another month, at the maximum. It's too much work for these guys to actually have to respond directly to the demands of the American public.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 4:19pm

    Contacted my Senators

    Georgia man here, decided to send emails to my senators, though I'm wondering if EMAIL will be given much consideration, considering these are more conservative guys, though I did drill into them that the president is hiding this from the Senate and that this IS big government.

    Unlike SOPA/PIPA, this affects more than just the tech industry and needs to be shot down. ANY industry where patents/copyrights could be involved could feel the chokehold of ACTA.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Anonymous Coward, Jan 25th, 2012 @ 5:50pm

    Re: Correct me if I'm wrong...

    Even if we assume those were the motives, that doesn't excuse his actions. Imagine if the House passed a bill and declared it to be law without sending it to Senate or the President. How would that be any different than what the President is doing here?

     

    reply to this | link to this | view in thread ]

  50.  
    identicon
    Pixelation, Jan 25th, 2012 @ 6:55pm

    Re: Re:

    Biden was fairly astute when it came to foreign policy. It's a tragedy he is a crony for the entertainment industry these days.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Brendan Ergas, Jan 25th, 2012 @ 8:21pm

    Fuck this I'm making my own country

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    Jonas, Jan 25th, 2012 @ 8:41pm

    Puppets

    This is the kind of shit that is signed behind our backs...Seriously, think about it! You really wouldn't here about it until the president gets his second term in or a new "puppet" is voted in.

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    c, Jan 25th, 2012 @ 10:57pm

    Register to vote

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    alfakennyone, Jan 25th, 2012 @ 11:18pm

    Re: before it can be signed by the US?

    yes with white out

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, Jan 26th, 2012 @ 4:05pm

    There are those of us who do delve into "consitutional minutiae", and to many us it is not at all clear that this is a "treaty" requiring the advice and consent of the Senate as specified in Article 2, Section 2 as some urge is the case.

    Merely by way of example, just as the President may not intrude upon constitutional powers granted specifically to Congress, neither may Congress intrude upon powers granted specifically to the President. Each operates within their respective spheres of authority.

    Just as some urge that Article 2, Section 2 should govern, there are contrary opinions that ACTA is within the independent authority conferred upon the President by Article 1, Section 1.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Guess Who, Jan 26th, 2012 @ 8:27pm

    Re: before it can be signed by the US?

    Article II, Section 2, paragraph two of the United States Constitution says that ALL treaties signed by the President must be ratified by the US Senate (see: http://www.archives.gov/exhibits/charters/constitution_transcript.html ).

    A treaty is simply a formal agreement signed between two or more nations (see: http://dictionary.reference.com/browse/treaty ).

     

    reply to this | link to this | view in thread ]

  57.  
    identicon
    Nadine., Jan 27th, 2012 @ 5:40am

    I see you guys citing the US Constitution, which is funny, because they don't care about what it says anymore. -.-

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Kay, Jan 28th, 2012 @ 2:05pm

    Re: before it can be signed by the US?

    The law is not valid in the USA because it did not go through the legal process. We are not obligated to follow it. It won't hold up in court.

     

    reply to this | link to this | view in thread ]

  59.  
    identicon
    Zero, Jan 28th, 2012 @ 8:54pm

    Please DON'T SIGN IT. Flag it as innapropiate.

     

    reply to this | link to this | view in thread ]


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