USTR Keeps Making ITU Look Good On Transparency, Which Is Bad For Everyone.

July 2, 2012 , ,

Pointing out that the United States Trade Representative (USTR) does not
understand the concept of “transparency” hardly qualifies as news. It’s kinda
like “Jerusalem Chief Rabbi Places Last In Pulled Pork Bar-B-Q Contest.” But every now
and then, USTR’s generalized failure to understand why increasing public
participation, sharing more information with the public, and generally bringing
the standard of transparency up to what we would actually consider vaguely
transparent actually threatens U.S. interests in other areas.

Case in point, the International Telecom
(ITU) meeting in Dubai for the World
Conference on International Telecommunications
(WCIT) this December. 
I’ve written before on why I worry a number of the proposals at made by various
repressive regimes at WCIT
may have long-term consequences for freedom of expression online

Many global civil society organizations, as well as many countries committed to
freedom of expression and fundamental human rights, oppose these efforts to
leverage WCIT for such ends. At the same time, however, many of these countries
and organizations have long
standing serious concerns around Internet governance
. In particular, they
resent what they see as the dominance of U.S. government and U.S. corporate
interests in supposedly neutral “multistakeholder” forums like the Internet
Corporation for Assigned Names and Numbers
(ICANN). ICANN is the current
home for much of what people mean by “internet
.” This makes expanding ITU jurisdiction to include Internet
issues attractive to some of these countries and organizations, despite the
danger to free expression, as one of the few possible counterweights to the

Persuading enough of these countries and other stakeholders that the
downside of expanding ITU authority outweighs the potential benefit is
therefore the chief challenge for the U.S. delegation. Unfortunately, the
continued conduct of USTR in reenforcing the view that the U.S. Government is
the tool of industry by doing things like pushing ACTA (which
continues to be held
up in Europe
and elsewhere as a symbol of the U.S. shilling for Hollywood
at the expense of free expression), and maintaining a cloud of secrecy around
the Trans-Pacific
(TPP) negotiations, makes this much harder. While we are kind
of stuck with ACTA, the USTR can do a heck of a lot more around transparency in
TPP. Given that the ITU has made a number of conciliatory gestures to civil
society on the transparency front in the last few weeks, It would be really
helpful if USTR would at least stop pissing
on its critics
and generally making
ITU look good

I cheerfully acknowledge that every now and again,
the folks at USTR that recognize the importance of transparency and legitimacy try
to do something about this
, but they are apparently outweighed by the folks
who think none of this transparency stuff matters or seem incapable of hearing
that there might be problems. By contrast, ITU has engaged in an active charm
offensive to woo civil society and calm fears that the WCIT is a conspiracy to
“take over the Internet

Compare ITU and USTR over the last few months on
transparency, and you will see what I mean. In May a number of civil society
organizations, including Public Knowledge, signed on to a letter from the Center
for Democracy and Technology
that pointed out the lack of transparency around
WCIT and the lack of opportunities for civil society to engage either at WCIT
or in the ITU process generally. The ITU responded by acknowledging the
and by releasing a number of documents providing some basic background briefings on areas of discussion.

This looks like pretty weak tea for transparency,
until you compare it to the USTR. We have pressed USTR to do at least this
much for proposals in the Trans-Pacific Partnership (TPP) negotiations. USTR [holds
another round of regional negotiations in San Diego this week], but – following
its usual custom – has explained that making any summary of any discussions or
developments is simply impossible. Instead, USTR’s great leap forward was
to responded to PK’s criticism of the ‘science fair’ type format for
engagement with delegates in Dallas
where every org can register a table and include for the San Diego round the opportunity to make presentations to the
. (Both of these, I should point out, are not part of the official
negotiation agenda but are extra-curricular activities should the delegates
have time and chose to take advantage of the chance to engage groups one on

Lest one think it is only civil society
organizations frustrated with this lack of transparency and engagement, I point
out that over 130 members of the House of Representatives, as well as a
number of  Senators
, have written to US
Trade Representative Ron Kirk to demand greater transparency around the TPP
process. USTR also denied the request of Rep. Darrell Issa (R-CA), who
actually represents a district in San Diego where the current TPP round is
taking place, to attend the negotiations as an observer. This follows on
Representative Kirk’s rather intemperate response to a letter from 30
Academics criticizing TPP’s lack of transparency before the Dallas round.

So while ITU remains no great shakes on the transparency front, it at least
has acted all conciliatory and made some gestures in the right direction. By
contrast, as I have noted before, USTR’s chief accomplishment in
the last few months has been the global branding of ACTA and the US generally
as  (a) bullies who use our global market power to bully other nations
into neo-imperialist treaties negotiated in secret; who are (b) so utterly
clueless that we continue to think everything is just utterly hunky-dory
despite riots in Europe and rejections of the treaty by various governments and
government organizations.

 Just to be clear: this global branding of the U.S. by USTR as incapable
of even basic transparency or engagement with civil society is NOT HELPFUL!!!

Especially when it comes to persuading global civil society orgs and ITU member
states that the U.S. cares Internet freedom and human rights while other
countries trying to leverage the ITU and WCIT don’t. USTR’s persistence in
treating transparency at TPP (and in other negotiations) as a box to be
checked, the inclusion of industry trade organizations in “civil society”
forums while simultaneously excluding non-commercial civil society
organizations from “industry forums,” and otherwise demonstrating contempt for
the whole concept of public accountability in trade negotiations is going to
seriously bite the U.S. negotiators’ rear-ends in Dubai. The Hon. Ron Kirk’s “Shut
Your Pie-Hole Transparency Hippies” letter
is going to be exhibit one for
Russia, the Arab block and anyone else trying to leverage WCIT on “why the U.S.
is not your friend and all this stuff about Internet freedom is so much chin

Now I know there are folks at USTR, and elsewhere in the U.S. government who
understand about the importance of transparency. I get that they are trying to
be responsive to criticism to the extent they can. For example, as noted above,
in response to our criticism about the stakeholder science fair at Dallas, USTR
will also allow stakeholders (which includes industry as well as civil society)
to sign up to do longer presentations. But I also know that there are far too
many folks at USTR – particularly at the highest level – who read what I just
wrote and translate in their brain to “fubba wubba fubba wubba USTR totally
rocks on transparency, everyone else shut your pie-hole.”

So here is the bottom line. Right now, the USTR brand – and by
extension the U.S. trade negotiations generally – can be summed up as follows:
“Transparency UR Doin’ It Wrong” followed closely by “ACTA – NO WANT!!!”
  USTR’s reputation on transparency is so bad it makes ITU’s pathetic
little gesture toward transparency look good. In the few short months between
now and WCIT in Dubai, the U.S. really needs to turn its branding around.
Otherwise, no matter how lame ITU’s transparency actually is in practice, the
U.S. and its allies will have a very difficult time calling them on it.

About Harold Feld

Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” a guide to what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”