As another round of negotiations over the TPP agreement is ongoing in Dallas, a group of legal scholars have sent an open letter to the USTR, Ron Kirk
, decrying the ridiculous lack of transparency that has been driven in large part by the policies of the USTR, which seem almost entirely focused on avoiding hearing any outside opinions at all. Kirk shot back a quick response that isn't just dismissive, but downright insulting to the intelligence of these distinguished scholars. But, first, let's discuss the letter itself:
We are particularly and specifically concerned that by the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.
What's really incredible is that the USTR should know better after all the outcry over ACTA, but that seems to have only strengthened the USTR's resolve to be about as opaque as possible on the TPP negotiations. The scholars point out that in a post-SOPA world, that doesn't play. They specifically call out the likely collapse of ACTA in Europe -- due in large part to the secretive process there (which was just slightly less
secretive). It's amazing that the USTR is so short-sighted that it doesn't realize the backlash it's going to create:
At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.
The scholars have a simple suggestion in response -- one that would not be difficult to do, nor would it be controversial (contrary to Kirk's statements on this matter in the past). Publicly release the US's positions on things. They don't have to release the other details of the negotiations. Just what the US's position is.
Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. While we are sympathetic to the need for some confidentiality in the negotiation of international agreements, just as there is in domestic law making, there can be no national security justification, much less one sounding in good governance concerns, for preventing the United States public from seeing its own government’s proposals to restrain its own domestic legislation.
Indeed, there are many examples where the US engages in precisely the kind of information sharing about its proposals for international law making we request here. If, for example, this negotiation was happening in the World Intellectual Property Organization or World Trade Organization, all country proposals would be released to the public as a formal part of the negotiation process. This is, of course, also the process followed in a Congressional Committee mark up of a bill. And just last month USTR released to the public a 2012 revised model bilateral investment treaty (BIT), which one must assume reflects its positions in the TPP negotiation on the same titled chapter.
Of course, the legal scholars also make it clear that they know what is going on. The TPP is not about "trade." It's about exporting laws
and expanding our own laws -- and doing so because of a few special interests, in this case Hollywood and the big drug companies:
The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. We would never create US law or regulation through such a biased and closed process.
Kirk sent back a quick email to the organizer of the letter, Sean Flynn, in which he claims that he'll look at the full letter in more detail, but finds some of the suggestions in the letter "offensive." But Kirk is the one who's being offensive here, playing word games and insulting the intelligence of these respected legal scholars:
Mr. Flynn – I look forward to reviewing your letter, and will provide a more detailed response later. In the interim, you may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any FTA previously, including, the proposed disciplines on intellectual property.
I do not quarrel with any assertions that our work may not reflect the exact wishes of your colleagues, but, I am strongly offended by the assertion that our process has been non-transparent and lacked public participation. USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds.
I trust that after you have received my more formal response you will make every effort to educate your colleagues as to the extraordinary efforts our staff has engaged in relative to drafting our proposed texts for the TPP.
Okay, first the claim that that they're "active" on outreach is Kirk playing word games. First of all, note that he only refers to "FTA" (free trade agreements). That's being accurate, but disingenuous. The main problem -- as clearly expressed in the letter -- is that the IP issues that have these scholars concerned are not
"free trade" issues, but rather a way to spread IP legislation globally. In other words, it's an IP trade agreement, hidden inside a FTA. And, again as the letter makes clear, IP trade agreements are normally much, much more open
. Kirk knows this. He's just being obnoxiously disingenuous.
Next, if he's offended, too bad, because he's the one being offensive here. The "400 consultations with Congress" is misleading in the extreme. First of all, that's entirely different than consulting the public. Second, TPP covers much more than the IP sections that have these scholars concerned, and it's never explained how many of these consultations were on IP. Third, how many of those "consultations" were done in public where the public knows what's being talked about.
As for the claim that stakeholders have been invited to all of the negotiating rounds, he totally ignores that the USTR has made it nearly impossible for public interest stakeholders to be heard -- getting them kicked out of hotels, or forcing them to hold meetings either while negotiations were going on or far away from the negotiations, meaning that negotiators won't take part. He's paying lip service (barely) to the public interest.
On top of that, he completely ignores the fact that special interest groups -- mainly Hollywood and big Pharma -- have access to the document, while public interest groups have not been told what the US's position is at all.
Really, the proof of the lack of transparency is simple and is easy to highlight, despite Kirk's disingenuous and insulting response: how many people in the public, or even working for a public interest organization, know what the US is pushing for in the TPP's IP section? The answer is zero. That's not transparent, no matter how much Kirk wants to tap dance around the issue.
Ron Kirk needs to learn that his job is to represent the citizens of the United States, not the special interests. He clearly thinks that as long as he keeps telling people he's being transparent he'll be able to get away with this incredibly secret government handout to Hollywood and the big drug companies. He needs to learn that's not the way this works.