Ah, SOPA. It's back. At least for this post. If you want to hear my thoughts on SOPA when it was fresh, you can listen at Cyberunions.org. Unfortunately, the Trans-Pacific Partnership is still going strong and it has the possibility to be the new SOPA. We don't know if it will be the new SOPA, but we don't know that it won't.
Below is a full paper I turned in on the TPP.
Secrecy in the United States goes back to the founding. One of rules
of the Constitutional Convention was that participants were not
allowed to speak about the proceedings. James Madison would not even
allow people to view his notes until after his death in 1836.
Additionally, both the Federalist1
and Anti-Federalist2
Papers were written pseudonymously by ghosts of ancient Rome.
Considering the pedestal on which we normally place the founders, why
are people so upset about secrecy in the Trans-Pacific Partnership
(TPP3)?
The reasons for the backlash against the TPP may well be voluminous,
but this paper focuses on three points. First, the public has seen
the outcome of treaties shrouded in darkness. Second, the public is
impatient. Third, trade agreements are not matters in which the
public recognizes a need for secrecy, such as they might in national
security.
I.
Past Performance of International IP Treaties
There
are three aspects of past performance that come into play with TPP.
There is A) the long-term past (essentially, colonialism), B) the
medium term past (essentially, TRIPS) and C) the near term past
(essentially, ACTA4,
SOPA5
and PIPA6).
Due to the lack of historical perspective on ACTA, SOPA and PIPA, the
paper will not address them.
A.
Colonialism
International treaty negotiations always take place under the specter
of colonialism. In fact, just about everything that is international
in nature bears the marks of colonialism.7
Thus, in some respects, it is unremarkable that it looms in
intellectual property (IP) debates. However, IP is a distinctly
western idea8,
and thus colonialism is of particular importance for understanding
the IP debates. The details of how colonialism affects international
IP are the subject of many books9
and papers10.
Here, the details are unimportant. However, as TPP information leaks
out of the inner circle of negotiators, they may become more
important. For now, it is enough to understand that there is a base
level of skepticism built into the system due to the history of
colonialism.
B.
Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS)
Realizing that colonialism cannot be forgotten, one must look at the
most recent major global11
treaty on IP. TRIPS is important in this context because for the
first time IP was tied to international trade. This conjures the
mercantilist roots of colonialism, but TRIPS is not important to the
transparency story because it fits into the colonialism narrative.
Rather, TRIPS is an example of caveat emptor12.
Unfortunately, initial ignorance of TRIPS on the part of developing
nations13
has lead to instability in the long term health of the treaty. This
has in turn lead to nations turning to WIPO14
(World Intellectual Property Organization) and increasing expansion
of exceptions in TRIPS15.
While there is nothing inherently wrong with turning to WIPO or
aggressively interpreting a document in self-interest, if developing
nations had gotten what they thought they were getting out of TRIPS,
then perhaps policy makers in those countries could be spending
resources on more important issues, such as clean drinking water and
education.
If the developing nations are the ones that got duped or
misunderstood TRIPS, why then are so many involved with TPP? There
are many reasons for this, including the same psychology that allows
losing gamblers to keep on losing, but the primary reason is simply
that since this is a regional negotiation rather than a global
negotiation, the smaller players do not feel like they are getting
left out in the cold.
The question for western non-governmental organizations (NGOs) is
mostly whether the TPP is good for developed nations, but likewise,
there is the paternalistic question of whether the TPP is good for
the developing nations. Whether US-based interest groups critical of
the TPP such as the Electronic Frontier Foundation (EFF) have or
should have in mind the best interests of developing nations is a
matter only marginally relevant to understanding their response. The
fact remains that those that ignore history are doomed to repeat it.
In this case, history suggests that the interests of those who do not
have a voice in the negotiations will not like the results.
II.
Societal Impatience
It
is important to remember that the guiding question of the paper is
“Why are people so angry about the lack of transparency in TPP
negotiations, despite the long history of secrecy in the United
States government?” One of the answers seems pretty clearly to be
impatience on the part of the public. There can be little doubt that
if the Constitutional Convention were to happen today, the public
would expect talking heads on both sides to be remonstrating about it
24/7. The public would not expect Rush Limbaugh to have a seat at the
table, but they would not expect Rush to say “I don’t know what
to tell you folks, because everything is so secretive.”
Some
of the reasons for this are obvious. The Internet and cable news have
made information overload generally more of a problem than inability
to get information.16
Another likely reason is the increased campaign season for elected
officials. Literally as soon as Obama won the 2012 election, the
media was speculating on the 2016 candidates.17
The last of the obvious reasons, and connected to the other two
reasons mentioned supra, is that there is cultural attention
deficit-hyperactivity disorder.18
Again, policy-makers should not simply comply with fast-food culture,
as it is a problem worth addressing in its own right, but it is a
phenomenon tied to the discourse on the TPP.
III.
Public Recognition of Secrecy
The value of secrecy versus transparency in certain contexts could
certainly fill volumes of books.19
Certainly vast swaths of the public would agree that some secrecy is
necessary as it relates to national security. The question becomes,
where to draw the line? Unfortunately, the TPP negotiators have put
us in a situation where we do not need to critically assess where the
line should be drawn. Under no reasonable conception of transparency
have the TPP negotiations been transparent. While reasonable minds
can differ about how open the TPP negotiations should be, under no
reasonable conception should the TPP have been conducted the way it
has been thus far.
While a true understanding of public opinion would require surveys,
given the rhetoric surrounding the TPP, certain themes can be
assumed. It is these broad themes which are addressed in this third
part. Specifically, and first, the third section addresses secrecy as
it relates not precisely to the public, but to Congress. Second, the
third section addresses the value secrecy in foreign relations and
how that relates to the short term and the long term.
A. The Executive Keeping Secrets from Congress
Much Executive and Congressional time is spent wrangling for power
amongst the two branches. As frustrating and cowardly as much of the
bickering may seem, this was in essence the intent of the founders.
The Framers were aware of the glory that ambition brought to ancient
Rome, but also that that same ambition was ultimately the fall of the
ancient Republic. Unlike the TPP negotiators, the Framers were
determined not to repeat the mistakes of history.
While
the intent of the Framers may win a Constitutional argument in a
courtroom, the public debate about the TPP is not happening in a
courtroom. This is not to say that the Framers do not hold sway with
the American public. They do. But, much as the Framers came from
differing backgrounds and perspective to win the American Revolution
and write and ratify the Constitution and Bill of Rights, the
American public would like to see the Executive and Legislative
branches pull together when times are tough, but not in some fascist
flag-waving way. When someone from the right or the left makes a
stand that seems genuine, people may be frustrated, but people can
still respect the point of view. What enrages both the right and the
left is when the bickering is done not from principled positions but
due to political maneuvering or special interests, both of which are
on full display in TPP negotiations.
Ultimately, in the court of public opinion, Obama needs a rational,
genuine argument for keeping information from the people, not just
some sort of elusive “executive power.” If he has one, he has not
articulated it. The best arguments the Obama administration has is a
broad interpretation of Article II, Section 3, Clause 4 of the US
Constitution which states “[the president] shall receive
ambassadors and other public ministers” or broad structural
arguments such as those adopted in United
States v. Curtiss-Wright Export Corp.,
299 U.S. 304 (1936) which together sound alot like “I’m the
decider.”
However, Curtiss-Wright dealt with an armed conflict, while
the TPP does not deal with what might arguably be the war powers. The
TPP is a trade agreement, which should fall under the purview of
foreign commerce power of the US Congress even if the Trade Act is
renewed. Further, even in the national security realm, Senators are
briefed on important news. However, Senators were denied access to
the TPP negotiations despite their Constitutional power to regulate
foreign commerce. To turn the absurd into farce, Halliburton,
Chevron, PHRMA, Comcast, and the Motion Picture Association of
America were all made privy to the details of the negotiations. This
sort of corporate access is almost as classic as Amazon censoring
1984 and
immediately raises calls of fascism from the left and “new world
order” conspiracies from the right.
B. Long-term Foreign Relations versus Short-term Foreign Relations
When it comes to foreign relations, many in the public would agree
that some level of secrecy might be necessary. In fact, in this
context, they might even use the word “privacy.” Why should the
U.S. air the dirty laundry of other countries? It should not, the
argument goes.
However, this is not a time for international “privacy,” and the
public knows that. Eventually, at the very least when the TPP is set
to become law, the public will find out the text of the TPP. What if
there is significant citizen outrage like with the SOPA/PIPA
situation (or ACTA in Europe)? In that situation, we may have to back
out of the treaty. This will set back US-Asian relations as well as
relations with our neighbors both to the north and the south, since
both Canada and Mexico are TPP parties.
There will presumably always be issues of one form or another with
our neighbors to the north and south: migratory birds, the great
lakes, whales, etc. However, right now is a particularly bad time to
sour relations with Mexico. People are being murdered at the
US-Mexican border due to drug violence.20
The US government needs all the help it can get in solving this
problem. Now is not the time to damage that relationship due to an
FTA that we do not need21
post-NAFTA.22
Further, the public wants answers to the Mexico problems now, not
later. If Obama does think that the TPP can be part of fixing our
border issue, then the administration needs to come out and say it.
Secrecy about any trade negotiations with Mexico are not likely to
come with much deference from the public. This, of course, brings us
full circle to looking at history. While there is not time here to go
into the history of NAFTA, the public reception to TPP can, in large
part, but summarized as “once bitten, twice shy.”
IV.
Conclusion
As
we have seen, there are many reasons23
why trade, IP and transparency activists are concerned about the lack
of transparency in the TPP negotiations. However, there may be change
blowing in the wind.24
The TPP has already begun a campaign of Direct Stakeholder
Engagement.25
Additionally, Ron Kirk leaving as US Trade Representative26
could begin a more positive chapter in TPP negotiations, though
Obama’s praise of Kirk may suggest that is more dream than
reality.27
While leaks are not really transparency, as more countries join the
TPP, there is more surface area for leaks. For trade and IP advocates
(rather than advocates for transparency), the effect is essentially
the same, unless there is a significant delay to the leak.
Ultimately
though, the airing grievances as is done in the Direct Stakeholder
Engagement28
is not going to solve the problem. People want to see the current
text. No one is going to believe that the TPP is not bad unless it
can be verified. While verification will not get rid of the history
of colonialism, societal impatience, political posturing or concerns
about the long-term effects of globalization, what it can do is help
people understand what the real issues are. Once civil society can
pinpoint the real issues, then perhaps the airing of grievances in
the Direct Stakeholder Engagement sessions could actually lead
to change. Of course, right now, we do not even know if we want to
change anything.
BIBLIOGRAPHY
2.
11
Nw. J. Tech. & Intell. Prop. 21 SOPA, PIPA, ACTA, TPP: AN
ALPHABET SOUP OF INNOVATION-STIFLING COPYRIGHT LEGISLATION AND
AGREEMENTS
3.
Ruth Gordon, Sub-Saharan
Africa and the Brave New World of the Wto Multilateral Trade Regime,
8 Berkeley J. Afr.-Am. L. & Pol'y 79 (2006)
4.
Miguel
E. Larios, Epublius:
Anonymous Speech Rights Online,
37 Rutgers L. Rec. 36.
5.
United
States v. Curtiss-Wright Export Corp.,
299 U.S. 304 (1936)
1 Elec. Frontier Found., Anonymity, https://www.eff.org/issues/anonymity (last retrieved April 15, 2013).
2
Miguel E. Larios, Epublius: Anonymous Speech
Rights Online,
37 Rutgers L. Rec. 36.
3
The TPP is a proposed trade agreement between the United States,
Brunei, Chile, New Zealand, Singapore, Australia, Peru, Vietnam,
Malaysia, Mexico, Canada and Japan (and possibly South Korea).
4
Anti-Counterfeiting Trade Agreement
5
Stop Online Privacy Act
6
PROTECT IP Act
7
Tim Vickery, Benfica's Brazilian
Import-Export Connection,
http://www.bbc.co.uk/blogs/timvickery/2012/04/tim_vickery_4.html
(last retrieved April 16, 2013).
8
Which brings into question the need for IP. The ancient Chinese and
medieval Islamic world seemed to do just fine without IP. This
should not be viewed as a Europhobic comment. Certainly China and
the Islamic world have their own set of issues.
9
Michael D.
Birnhack, Colonial
Copyright: Intellectual Property
in Mandate Palestine, available at
http://ukcatalogue.oup.com/product/9780199661138.do#.UWilv_HFTd4
(last retrieved April 15, 2013).
10
Andreas Rahmatian, Neo-Colonial
Aspects of Global Intellectual Property Protection,
available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1629228
(last retrieved April 15, 2013).
11
While “major” and “global” are both arguable words, and it
remains to be seen if TRIPS will stand the test of time like Berne
and Paris, this simply means a treaty to which most of the world is
an observer. While some of the “global” nature of Berne and
Paris is due to TRIPS and the WTO, whether TRIPS is the most recent
global treaty on IP is not central the argument. It is simply the
milestone used here. Other treaties, such as the Council of Europe’s
Convention on Cybercrime, are more recent, but do not have the
global scale of TRIPS.
12
meaning, “let the buyer beware”
13
See Ruth Gordon,
Sub-Saharan Africa and the Brave New World of
the Wto Multilateral Trade Regime, 8
Berkeley J. Afr.-Am. L. & Pol'y 79 (2006).
14
Third World Network, TWN
Info Service on WTO and Trade Issues (Oct05/2),
http://www.twnside.org.sg/title2/twninfo262.htm
(last retrieved April 15, 2013).
15
Third World Network, TWN
Info Service on Intellectual Property Issues (Mar08/03),
http://www.twnside.org.sg/title2/intellectual_property/info.service/2008/twn.ipr.info.080303.htm
(last retrieved April 15, 2013).
16
There is, of course, still a huge problem in getting information to
developing markets and getting decent translations. See Douglas
Whitfield, Focus and Refocus: (The
Impossibility of) Saving the World in Less than 4000 Words,
available at
https://docs.google.com/a/opensourceplayground.org/document/d/1SgcrQ7cfmmRErlcP8WylztYBOe95V5hdF4F9bjMBU1k/edit
(last retrieved April 15, 2013).
17
Aaron Edwards,
2016: Who might
run for president?,
http://www.whittierdailynews.com/politics-national/2012/11/2016-who-might-run-for-president/
(last retrieved May 11, 2013).
18
Sami Timmi & Eric Taylor, ADHD is best
understood as a cultural construct,
http://bjp.rcpsych.org/content/184/1/8.full
(last retrieved April 15, 2013).
19
For example,
http://www.amazon.com/Transparency-Leaders-Create-Culture-Candor/dp/0470278765
(last retrieved April 15, 2013).
20
Apparently there is some hope on the subject, but even if there is
hope now, that might be even more of a reason not to reignite the
fragile situation. Kevin
Johnson and Alan Gomez,
http://www.usatoday.com/story/news/world/2013/02/05/mexico-drug-war-bloodbath-is-receding/1894933/
(last retrieved April 15, 2013).
21
Not that we needed NAFTA in the first place; and not that we did
not.
22
North American Free Trade Agreement
23
Additional reasons were contemplated in earlier drafts of the paper.
Earlier drafts can be viewed via the revision history at Doug
Whitfield,
https://docs.google.com/document/d/1cikmhvLmCYzOKsv7Z4SCdhnzS4_W4wfCygOuV7LR_UM/edit?usp=sharing
(last retrieved May 11, 2013).
24
Indeed, not just in the TPP. For example, the G20 will allow the
Civil 20 a seat at the table at this year’s G20 conference.
Transparency International, Civil Society’s
Seat at the G20 Table,
http://www.transparency.org/news/feature/civil_societys_seat_at_the_g20_table
(last retrieved April 15, 2013).
25
Office of the United States Trade Representative, Direct
Stakeholder Engagement,
http://www.ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/direct-stakholder-engagement
(last retrieved April 17, 2013).
26
Sandler,
Travis & Rosenberg, P.A.,
https://www.strtrade.com/publications-7718.html
(last retrieved April 15, 2013).
27
Annie Lowry,
http://www.nytimes.com/2013/01/23/business/us-trade-representative-will-step-down.html?ref=ronkirk
(last retrieved April 15, 2013).
28
See Office of the United States Trade Representative, Direct
Stakeholder Engagement,
http://www.ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/direct-stakholder-engagement
(last retrieved April 17, 2013).
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