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As my colleagues Sherwin Siy and Michael Weinberg have reported, Senator Ron Wyden spoke at CES yesterday and unveiled his Freedom to Compete agenda. The agenda contains many concrete proposals to preserve and promote an open Internet. In this post, I will focus on the proposal that would instruct the Office of the United States Trade Representative (USTR) to seek open Internet principles in “all trade discussions” and also talk about the process by which these trade discussions take place.
We at PK have always said that promoting an open Internet is not the sole preserve of communications policy or Internet governance policy (a term used more in international forums). Many other areas, including copyright policy, can have adverse impacts on the Internet and policy makers must be careful to avoid these impacts. For instance, copyright enforcement policies that view the Internet as a means that facilitates infringement target internet intermediaries in a manner that hurts the free speech rights of the many to prevent the allegedly infringing acts of the few (think ICE seizures of domain names). This hurts the free flow of information on the Internet.
Yet the USTR’s strategy for negotiating trade agreements, such the ongoing Transpacific Partnership Agreement (TPP), seems to assume that any copyright enforcement measure will not and cannot have a negative impact on the openness of the Internet. This assumption is reflected in leaked US proposals for an IP chapter in the TPP. These proposals would require other countries to introduce seizure and forfeiture provisions almost identical to the provisions the Immigration and Customs Enforcement (ICE) is currently using to seize entire websites for certain infringing content on that website (the dajaz1 and Rojadirecta seizures). It would also have them introduce provisions that would increase the scope and strength of exclusive rights over content, in a manner that would stifle the flow of content on the Internet.
In contrast to the copyright provisions in the TPP, the USTR is also negotiating an e-commerce chapter in the TPP whose purpose is to promote the free flow of commercial data across national borders. The USTR often holds out this chapter as an example of its commitment to promoting an open Internet. This brings me back to the point I made earlier: promoting an open Internet is not the sole preserve of any one policy area. And that is the principle that undergirds Senator Wyden’s proposal.
Just before he outlined his proposal, Senator Wyden also referred to the recently concluded World Conference on International Telecommunications (WCIT) that took place in Dubai. That conference rewrote the International Telecommunications Regulations (ITRs) that regulated the manner in which international telephone calls are exchanged. Many proposals to amend the ITRs would have resulted in a drastic expansion of their scope to include several Internet issues such as spam, cybersecurity, and traffic routing. The US government’s approach to these negotiations was in start contrast to the USTR’s approach to negotiating the TPP.
First, it reflected an understanding that diverse policy areas have an impact on the open Internet and a unified approach to promote an open Internet is essential. Thus, the government delegation brought in extensive expertise from various government agencies, businesses, and public interest representatives on the diverse issues which were on the table. This approach ensured that proposals that related to the difference policy areas were thoroughly evaluated to examine any possible adverse impact on the free flow of information on the Internet or the open architecture of the Internet.
Second, the government’s approach reflected an understanding of the importance of inclusiveness and transparency as domestic negotiating positions are developed. In the lead up to the Dubai conference, the US government consulted with a wide variety of stakeholders including private companies and public interest groups as it formulated its own negotiating positions. Many of these representatives, including Harold and me, were invited to be part of the US delegation and we accepted that invitation.
For Harold and me, the experience of being on the US delegation was a practical demonstration of how a government can arrive at a broad based domestic consensus on its international negotiating positions, before it engages in those negotiations. It was also a demonstration of how it was possible to consult with all stakeholders, including public interest representatives, as a government develops its negotiating positions.
We hope the spirit of inclusiveness and commitment to an open Internet that characterized the US government’s approach to the WCIT has a positive influence on the manner in which the USTR operates. We hope Senator Wyden’s proposal to instruct the USTR to seek open Internet principles as it negotiates trade agreements comes to fruition.