For a few years now, we've been writing about the Trans Pacific Partnership
(TPP) agreement, and how we're quite concerned by many aspects of it. In particular, we're quite concerned about the intellectual property provisions -- which leaks
have shown are tremendously problematic -- as well as the corporate sovereignty provisions
, which negotiators like to call "investor state dispute settlement" (ISDS) because it sounds so boring. Of course, the biggest concern of all is that these deals are negotiated in total secrecy, with the various negotiators refusing to reveal the agreed upon text until it's a done deal and the public is unable to comment on it or suggest changes and fixes.
In the fight over the TPP (and the other big trade agreement, with Europe, called the TTIP or TAFTA), an important side issue is over so-called "fast track" authority
, or (more officially) "trade promotion authority."
This is where Congress basically tells the USTR that it will only take a single "yes/no" vote on whatever the USTR comes back with, rather than delving into the details of the trade agreement and challenging specific aspects of it. In fact, there's an argument that, without fast track authority, the USTR can't really commit
the US to anything. What's really odd is that, in a Republican-controlled Congress that seems to want to fight President Obama on just about anything that even has a whiff of the executive branch having more power, it's those Republicans in Congress who are pushing strongly
for fast track authority -- effectively giving up their (Constitutionally-mandated) power to regulate international trade.
Either way, it is strongly expected
that Congress will introduce some sort of Trade Promotion Authority bill in the coming days, even as the key Democrat involved in this issue, Senator Ron Wyden, has pushed back
planned by Senator Orrin Hatch for later this week.
To try to justify giving up Congress's own power to the executive branch, defenders of trade promotion authority, such as Paul Ryan, claim that it's actually Congress "asserting its authority in the early stages of a trade negotiation." That's clearly bullshit, since TPP is in its final stages, after being negotiated for many years
. The other claim is that because of the way trade promotion authority works, it involves a bill that tells the USTR what needs to be included in any agreement. Again, while that is used to make it look like it's Congress presenting its desires to the USTR, which has to follow it, that would only make sense if TPA was offered at the beginning -- not the end -- of the negotiations.
Even Paul Krugman, who was initially a supporter of the TPP
eventually changed his tune
. Most recently, in response to President Obama's latest call for trade promotion authority, Krugman referred to it as suspicious nonsense
. He supports trade deals, but "strongly suspects" there's "bad stuff hidden in the fine print." Of course, that wouldn't be such a concern if the USTR actually released the drafts it's pitching, but that apparently will never happen.
And that brings us (finally) to the question of what will be in the eventual push for fast track authority, that is expected to come out any day now. Daniel Sepulveda, who is sort of the US's "ambassador to the internet," just gave a speech talking about how fast track can help protect the open internet
. He notes, rightly, that it's important to "[preserve] the free flow of information, to protect the internet's potential as the world's engine for future growth." He further points out that "the increase in Internet use creates significant economic potential." But, oddly, he claims that fast track can somehow guarantee this -- when previous attempts at fast track have shown no such thing
. Here's Sepulveda:
The Obama Administration is working to unlock the promise of e-commerce, keep the Internet free and open, promote competitive access for telecommunications suppliers, and set digital trade rules-of-the-road by negotiating new trade agreements. Trade Promotion Authority legislation and the pending trade agreements we expect Congress to consider over the coming months and years will provide that kind of protection. These agreements aim to ensure that the free flow of information and data are the default setting for nations. This will preserve the architecture that has empowered the Internet and global communications to fuel economic growth at home and abroad. It is in our interest, across parties and ideology, to ensure we move forward and approve TPA and the pending agreements for many reasons, but promoting the preservation and growth of global communications and the open Internet is one of the strongest.
I agree that preserving an open internet is important -- and I wish that our trade deals did exactly that, but they don't. In particular, the intellectual property sections of various trade agreements have not been focused on preserving an open internet, but on shutting it down. We've been asking for nearly a decade
how protectionist policies aimed at propping up a legacy industry's obsolete business models is "promoting free trade." It seems like the opposite
And, in fact, if you look at the version of the "fast track" legislation that was introduced in the last Congress
, you'll notice that the section it has on intellectual property is almost entirely focused on ratcheting up enforcement and protection. It only talks about intellectual property enforcement
, including "meeting enforcement obligations," and "providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property." It includes sections that are all about protectionism and enforcement, rather than "free trade."
Providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade;
Preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;
Ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;
Providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms.
In fact, if you look, these clauses are almost verbatim
from the last time Congress granted trade promotion authority, back in 2002, with the 2002 Trade Act
. Check out the section in that law about intellectual property and you may notice a rather striking similarity to what was in the last Congress's attempt, put together by Senator Orrin Hatch, who's leading the charge this time around as well:
Providing strong protection for new and
emerging technologies and new methods of transmitting
and distributing products embodying intellectual
Preventing or eliminating discrimination with
respect to matters affecting the availability, acquisition,
scope, maintenance, use, and enforcement of
intellectual property rights;
Ensuring that standards of protection and
enforcement keep pace with technological developments,
and in particular ensuring that rightholders
have the legal and technological means to control the
use of their works through the Internet and other
global communication media, and to prevent the
unauthorized use of their works; and
Providing strong enforcement of intellectual
property rights, including through accessible, expeditious,
and effective civil, administrative, and criminal
Look familiar? Other than the inclusion of the phrase "including in a manner that facilitates legitimate digital trade," they are identical. And yet, think about just how much the world has changed since 2002 -- and how important we know the internet is, and how much we've learned about how intellectual property law can be widely abused to harm or break the open internet.
Since then, we've seen the DMCA used repeatedly to stifle free expression
. We've seen Russia using copyright law
to stifle political dissent. We've seen how plans to use copyright law to block access to certain sites enable an architecture of censorship
. We've seen news publications seized
and popular digital storage lockers shut down completely
via copyright claims.
Given all that, it's difficult to see how the US can actually be serious about protecting an open and free internet, if it's going to continue to use trade agreements like the TPP -- to push for greater tools like those described above, that simply put the ability to censor the internet, and to take down innovative services, into trade agreements. If, when the eventual trade promotion authority bill comes out, it includes this same language all over again, you can be sure that the TPP is not
about protecting an open internet, but rather about protecting a few legacy businesses, and enabling
government to shut down and stop the open internet.
I'm a believer in free trade and open borders. I know that some are protesting agreements like the TPP because they don't like free trade itself, and think it's problematic. That's not my concern. My concern is that what's being done in the name
of free trade, and in the name
of an open internet, is anything but that. It's about protecting the past
, not investing in and enabling the future. We all have our concerns about what's in the various sections of the TPP (which could be solved today if the USTR just released the damn documents
), but our first hint of what's really going on here will be evident by how the "intellectual property" section of the expected TPA bill is written. If it's just repeating the same misleading lines from 2002, you can be sure that the TPP is just as big a problem as expected.