A number of blogs and websites have picked up the story of how the Office of the United States Trade Representative (“USTR”) continues to keep ACTA out of the public eye, even as it rolls towards its next round of negotiations in early November.
The big story of last week was how drafts of one particular section on “Internet provisions,” likely to be discussed in the next round, was disclosed to a small group of people under a non-disclosure agreement (“NDA”). I was one of those people.
Part of the story is a question of whether ACTA proponents, or the USTR itself, are trying to blunt calls for openness and transparency by appearing to open things ever-so-slightly. I’m not so certain that’s the case, because we’re still asking for USTR, the US government, and all of the negotiating parties to show the public—that would be everyone, not just groups with “public” in their name—the proposals for the agreement.
For instance, in a memo sent to reporters on October 9th, the USTR released the draft agenda for the Korea meeting. That memo also included this paragraph:
In preparing for this upcoming round of ACTA negotiations, USTR has broadened its consultations to include a diverse range of views including not only the cleared advisors who give input to USTR on a regular basis on intellectual property matters, but also to interested domestic stakeholders representing a broad range of views and expertise on internet and digital issues, including representatives from non-governmental organizations (NGOs) and industry leaders in intellectual property and technology.
A cynical person could wonder if the USTR might then claim that it need not open the process further, since it had already provided this NDA process.
It seems unlikely that USTR would make such an argument. The agency has consistently refused requests to make the documents public, and furthermore, I doubt that anyone could straight-facedly claim that the NDA process is anything like transparent.
I described the NDA process to KEI as follows:
Our first exposure to any text was on fairly short notice. We were allowed to view a draft of one proposed section as we sat in a room at USTR with some of its negotiators and counsel. We were not allowed to take any copies of the text with us when we left the meeting about an hour later. We were urged to keep any notes we took secure, and not to discuss the substance of what we saw unless USTR confirmed that the other party had also seen the text. The meeting proceeded with USTR discussing each point of the text in turn as we viewed it for the first time and compared the text to existing statutes, trade agreements, and treaties.We were invited to set up additional meetings or call USTR to confirm our recollections if we wanted to verify what we remembered from the meeting, as we were not allowed ot photograph, scan, or (presumably) transcribe the documents. We were told that some edits might be made in the near future to account for various concerns.
A meeting a few weeks later convened a range of people who had been cleared to see the text, and functioned as a roundtable, at this meeting, a slightly altered version was shown, which in some areas was slightly better, in some slightly worse, but without some of the most troubling aspects resolved.
USTR seems to be claiming not that this process is a transparent one, just that it’s helping them make better decisions on ACTA. I’d like to believe that that’s the case, but any suggestions we have made go into a black box of a process, and we’ll have no way of knowing what will come out of the other end. The minuscule glimpse we got of how our concerns were dealt with wasn’t massively encouraging, given that the content industry lobby is also having a say (and may well have had a say for longer, given its participation in the secretive trade advisory committees).
This needs to change.
While we appreciate USTR’s recognition that increased participation is important, and its efforts in that regard, this process is still miles away from anything approaching real, public transparency. In terms of openness, a lot of the tension between what USTR says it wants to do and what has been done so far seems to come from the characterization of ACTA as a trade agreement, when its aims seem considerably broader than that. If we’re going to be seeing a new kind of trade agreement that more broadly affects policy and legal interpretation, we’re going to need a new, more open kind of process that lets the public see what agenda its government is pushing.
I said that in the same statement, and I think it bears repeating. In its publicly stated objectives and the number of countries involved, ACTA more closely resembles something approaching an IP treaty than a trade agreement. Because of this, the openness, transparency, and oversight that we see in actual treaties should be applied here, not the closed-door nature of a business negotiation.
One question I’ve seen asked is why I and others decided to sign an NDA to view the text of the draft Internet provisions section. For my part, getting the chance to view the text would better inform me of at least some potential problems ACTA might cause. The NDA does not prohibit me from criticizing ACTA or the process through which it is being developed, nor does it prevent me from passing along and criticizing aspects of ACTA which are publicly known or later revealed.
A fundamental problem with a closed process is that it reduces the ability for the public to get involved. Criticisms of a secret agreement can be dismissed as unfounded. Public attention can wander from the issue by the time that the truth is finally known. Or, by the time the public sees the text, there may not be enough time to digest its nuances and implications to frame an intelligent debate on the merits of its provisions.
All of these reasons have fed into my decision to sign the NDA and see the text. But all of these reasons are even more powerful arguments as to why the agreement should be seen by all.
Taking on ACTA (Reflections on "Transparency" and Treaty-Making)
The CBDTPA (Consumer Broadband and Digital Television Promotion Act) was attempted by similar means. While the bill sat in Congress, content control schemes were developed for both sides of the proposition: 1) broadband and 2) digital television. Each part was pursued by processes that were barely known at large, in the Commerce Department for broadband, and at the FCC for digital television (the FCC side dealt with the infamous broadcast flag, via initially highly secretive negotiations in the Broadcast Protection Discussion Group).
Through these proceedings in subagencies, the main elements of the CBDTPA would have been a fait accompli, so the practical foundations of the Act would have been already in place before the debate in Congress. Something similar may be at work in the case of ACTA, and the difference is that as a treaty-making process, the obligations to regular representative lawmaking processes are arguably not at play. (It’s for this reason that declaring concerns about how the ACTA process doesn’t seem to match up with this administration’s supposed commitment to transparency, is not adequate.)
This technique of establishing a practical groundwork first makes it much harder to argue against policy activities in the legislative context — and far moreso in the case of international treatymaking. It’s particularly useful for something like content control (and there is good reason to fear that ACTA is for hardcore content control).
We would have had the same difficulty with the CBDTPA if the public had not engaged with the plan on both sides before it got to Congress. This attack took place first at the Commerce Department (http://news.cnet.com/2100-1023-944668.html) and then at the FCC, when the proposed rule for the broadcast flag was hurriedly introduced a week later (One good summary: http://www.ctoforaday.com/articles/000012.html - Public input as of the end of the comments period here [very long page]: http://www.nyfairuse.org/nprm02-230/gullfoss2.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v226cc.html).
This is how the CBDTPA was killed — they didn’t manage to lay the groundwork because the public got wind of it and we engaged with the process just when the Commerce Department provided its obligatory public disclosure through a little-noticed “public workshop” the likes of which they had never seen the public taken part in so forcefully. Then when the broadcast flag was introduced, it was repudiated by public comments and a subsequent court ruling. As a result, the bill was never moved to the stage of actual deliberation in Congress.
Now, in the case of ACTA, when the groundwork is being laid by a secretive international treaty process under the auspices of the executive branch, what can we do? We don’t have the same recourse to acting in the above ways, calling our public servants to account in this preliminary phase, when it really matters, before the ACTA activities establish a similar “fait accompli” for the notion of “intellectual property” enforcement under the rubric of preventing “counterfeiting.” Note also that we have labored under the arrogance of international policymaking processes for a good while now (mostly CPTech, now KEI) — the present conduct of the ACTA process hardly offers any reassurance in this respect.
We can obviously support groups like KEI (http://www.keionline.org ) who are attacking the way the proceedings are being conducted, and who speak up for us on their turf in international policymaking fora. But unlike regular legislative processes, the executive branch can easily undertake international treaty-making activities like this with little of the same sense of pressure for transparency.
A couple of notes:
1) We are by now well aware how suffused the government is by the influence of private parties (particularly parties with privileges associated with the corporate form, and which may also hold positions of privilege in the market). In this context, the principle of transparency does not necessarily bring the degree of accountability one might imagine — because the pervasive influence of private parties in government means the principle can always be qualified because “exceptions” must be made for the sake of the interests of those self-same private parties who have gotten involved. So as a first point, “transparency” has to be taken up in the context of targeting this private influence, because it is toothless otherwise (Note that the Obama DOJ recently argued in a current case addressing the question of immunity of the telecoms for wiretapping, that the telecoms were acting as agents of the government!). This point is pertinent even to the solely national context — “transparency” can always already be watered down when private parties are intertwined with the government to the extent and in the manner in whicch they are today.
2) In the international context, a similar point could be made: it’s one thing to have confidential processes among diplomats, but it is another thing entirely to extend that to private parties, as the USTR has done with the ACTA process. Now, this may be an interesting and incisive point with some valence politically, but it is still of limited force in the international context, and given the sort of notions presently being applied in the exercise of the executive branch, in this administration and in prior ones.
However: we should be recognize the fact that the premises which have fed the arrogance of international trade treaties and negotiations, may now be newly subject to real questioning. Since Justice Sonia Sotomayor has raised the question of “corporate personhood” in the Supreme Court, we are newly empowered to entertain the question of how and to what extent representative organs of government of, by and for the people may take recourse against limited liability entities, such as those which have for some time now have acted with less and less regard for consequences both in the international arena and nationally.
This goes beyond a few judicial precedents regarding corporate rights — we now stand at a point of being able to reasonably question numerous judicial findings which have introduced novel interpretations of how the commerce clause impacts commerce by corporate entities among the states, given that the commerce clause says nothing about the nature of interstate commerce policy, only that the Federal legislature may set it. The premises of “free trade” by untrammeled corporate entities were set by the Supreme Court as they “lent their voice” to Congress in the name of the dormant Commerce Clause, when Congress had not actually acted — not by actual enactments of legislative policy.
These premises about the powers of private corporations and the nature of commerce between States have been internalized and applied without real reflection to the international arena.
It seems to me the time is nigh to switch to arguments that point in this direction. We are in a position now to take recourse to the claim that private entities with limited liability privileges must be accountable to the organs of the public will that granted them those privileges — whatever form that recourse may eventually take. Whereas this point has for many years been a marginalized analysis, it is now valid currency, since we now have reason to examine how the presumption of corporate personhood and nearly a century of judicial doctrines have acted to undermine government of, by and for the people — both nationally, among the United States of America, and internationally, where transnational bodies have been acting without appropriate consideration for questions of “federalism” and accountability to the public will in the form of more local jurisdictions and governments which are the organs of the people’s will.