[governance] The most important trade agreement we know nothing about

[Riaz K Tayob]

[legitimacy does not matter ... ? Perhaps as the refrain for the 
Parminder's on this list (be practical) perhaps the USers should just 
lie down, forget the Kantian/enlightment/liberal underpinnings of the US 
Constitution... as the financial crisis shows us (self supervision only 
really sounds nice), the best brains in the world can get it wrong and 
are not above rigging the system to their advantage... but I guess IT is 
so different from real life, right?]


    The Most Important Trade Agreement That We Know Nothing About


  The Trans-Pacific Partnership could completely change intellectual
  property law. But the details are being kept secret.

By David S. Levine 
<http://www.slate.com/authors.david_s_levin.html>|Posted Monday, July 
30, 2012, at 6:16 AM ET

Most members of Congress do not even know what is in the Trans-Pacific 
Partnership Agreement.

Photo by Hemera/Thinkstock.

Imagine being invited to formally offer input on a *huge piece of 
legislation*, a proposed international agreement that could cover 
*everything from intellectual property rights on the Internet* to access 
to medicine to investment rights in the agreement's signatory countries. 
For 10 minutes, you'd be able to say whatever you'd like about the 
proposed law---good, bad, or indifferent---to everyone involved in the 
negotiations. But there's a caveat: All of your questions, all of your 
input, on what may be the most controversial part of the package, would 
have to be based on a version of the proposed international agreement 
that was 16 months old. And in that 16-month period, there were eight 
rounds of negotiations that could have changed any and all of the text 
to which you had access, but no one could tell you if that version was 
still accurate.

Would you still take the deal? This is not a hypothetical question; 
rather, this is the take-it-or-leave-it offer made to the public in May 
by the United States Trade Representative regarding the intellectual 
property rights chapter of the massively important but little-known 
Trans-Pacific Partnership Agreement (TPP). Unfortunately, this modest 
but sad excuse for public participation was the best offer to ask 
questions and offer input to TPP negotiators since the public phase of 
the negotiations began more than two years ago. So civil society groups, 
academics, experts ("nerds"), and regular Joe concerned citizens said yes.

*The above Kafkaesque scenario reveals a truly odd and disturbing 21^st 
-century situation. Asking informed questions is probably man's oldest 
form of letting someone know his views. But in 2012, with all of the 
technology that allows for unprecedented (if not totally unfettered) 
flows of information, the vestiges of 20^th -century secrecy continue to 
permeate international lawmaking, as reflected in the negotiations of TPP.*

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TPP is misleadingly labeled as a trade agreement, making it seem like a 
relatively narrow and limited agreement involving traditional topics 
like tariffs and exchange of goods---the sort of 
government-to-government discussions that seem too esoteric to have much 
impact on the everyday citizen. It is, in fact, much more than that. As 
explained by the USTR 
<http://www.ustr.gov/about-us/press-office/fact-sheets/2011/november/united-states-trans-pacific-partnership>, 
TPP is an "ambitious, next-generation, Asia-Pacific trade agreement that 
reflects U.S. priorities and values." President Obama, who announced the 
goal of creating TPP in November 2009 
<http://www.ustr.gov/about-us/press-office/press-releases/2009/december/trans-pacific-partnership-announcement>, 
has said 
<http://blog.trade.gov/2011/12/07/making-the-asia-pacific-region-a-top-priority-for-u-s-trade/> 
that TPP will "boost our economies, lowering barriers to trade and 
investment, increasing exports, and creating more jobs for our people, 
which is my No. 1 priority." That sounds pretty important---and more 
than a little vague. Unfortunately, we don't know much about it beyond 
those platitudes.

*Here's what we think we know. Based upon the leaks 
<http://keionline.org/tpp> that have occurred, it seems that an enacted 
TPP <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1980173> would 
require significant changes in U.S. and/or other signatory countries' 
laws.* It would curb public access to vast amounts of information in the 
name of combating intellectual property infringement (or piracy, 
depending on your choice of words). The owner of the copyright in a song 
or movie could use a "technological protection measure"---what are often 
called "digital locks"---to prevent your access to it, even for 
educational purposes, and regardless of whether the owner had the legal 
right to do so. Your very ability to read this article, with hyperlinks 
in it, could be affected by TPP. So, too, might your access to works 
currently in the public domain and available free of charge. And these 
concerns <http://digitalcommons.wcl.american.edu/research/28/> are only 
related to the intellectual property rights chapter of TPP. There are 
apparently more than 20 chapters 
<http://www.ustr.gov/about-us/press-office/press-releases/2012/july/important-progress-tpp-talks-san-diego> 
under negotiation, including "customs, cross-border services, 
telecommunications, government procurement, competition policy, and 
cooperation and capacity building," as well as investment and financial 
services. Technically, TPP would only take effect in the 10 negotiating 
countries: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, 
Singapore, United States, and Vietnam. Mexico joined recently, and 
Canada and Japan may soon follow 
<http://www.reuters.com/article/2012/06/18/us-usa-mexico-transpacific-idUSBRE85H1LC20120618>. 
But in reality, it would also affect citizens of any nations that 
interact with at least one of those 10---which means even the shut-off 
North Korea might feel its influence.

Sadly, even the above involves a fair amount of conjecture and 
speculation, rather than verifiable fact. This procedural bottleneck, 
fueled by a dogged adherence to a belief in 20^th -century-style 
secrecy, requires direct engagement, even if that engagement is flawed 
and wildly inefficient. So, on July 2, I traveled to San Diego to take 
part in an experimental, bizarre, new, and terribly important civic 
duty: being among a fraction of the nearly 300 
<http://www.ustr.gov/about-us/press-office/press-releases/2012/july/important-progress-tpp-talks-san-diego> 
"registered stakeholders" to speak to the negotiators attending the 
13^th round of negotiations of the TPP---even though none of us had any 
clue what was really going on.

The only thing that I knew with certainty was that I didn't know much 
about what was happening in the TPP negotiations, and therefore I 
couldn't offer much in the way of substantive questions and input, which 
was the point that I wanted to make to the negotiators. Other than 
"cleared advisors 
<http://www.techdirt.com/articles/20120622/23220319444/ustr-gives-mpaa-full-online-access-to-tpp-text-still-wont-share-with-senate-staffers.shtml>"---primarily 
industry representatives---no one outside the inner circle knows what is 
currently being negotiated in TPP. Most members of Congress 
<http://www.publicknowledge.org/files/TPP%20Letter%20FINAL.pdf> do not 
even know what is in TPP. Indeed, the last publicly available text of 
TPP's intellectual property chapter is a leaked version dated Feb. 10, 
2011 
<http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf>. 
Nonetheless, the goal of the "stakeholder engagement event," as the TPP 
"Welcome Stakeholders!" packet explained, was to provide an "open and 
productive forum." Yet the public knows more about the aggregate numbers 
of nuclear warheads the United States and Russia have deployed on 
intercontinental and submarine-launched ballistic missiles under the New 
Strategic Arms Reduction Treaty than it does about U.S. negotiating 
positions in TPP. Thus, on "openness," the TPP negotiators and USTR have 
failed.

Does getting an "F" on openness lead to an "F" on productivity? That 
depends on how you assess the productivity of allowing civil-society 
groups like Public Citizen <http://www.citizen.org/Page.aspx?pid=183> 
and academic institutions like American University Washington College of 
Law's Program on Information Justice and Intellectual Property 
<http://www.wcl.american.edu/pijip/> to address the negotiators and 
attempt to ask questions and offer meaningful input based upon a 
16-month-old leaked text that may no longer reflect what the negotiators 
are actually negotiating, as they did on July 2. On that rubric, based 
upon my own observations in San Diego, a "D" would seem like a generous 
grade.

Especially given the leaks, failing to release a current TPP text seems 
odd, largely pointless, and arguably counterproductive. Now is the time 
when expert ("nerd") questions and input are most needed. TPP, unlike 
the standard trade agreement, /requires/ public input because it 
involves broad questions like what the Internet will be, not a 
relatively narrow trade question like how many automobiles should be 
traded with Korea.

This same closed-door mentality that killed the Stop Online Piracy Act 
<http://www.forbes.com/sites/ciocentral/2012/01/19/web-darkness-the-day-after-why-the-sopa-protests-matter/> 
and has led to the near death of the Anti-Counterfeiting Trade Agreement 
<http://www.zdnet.com/acta-rejected-by-europe-leaving-copyright-treaty-near-dead-7000000255/>. 
It likely will kill TPP if its negotiations do not change course. At a 
minimum, it will lead to an imbalanced and poorly drafted law.

More broadly, the TPP negotiations are part of a larger trend to 
maintain the last vestiges of a predigital society in which keeping a 
secret was much easier. But especially in lawmaking, officials should be 
at the vanguard of adjusting to the new contours of information flows. 
USTR, other countries, and all lawmakers should embrace the informed 
question and embrace the nerd. They will learn much in the process and 
antagonize fewer people for the betterment of all. They will have a 
better chance of creating a substantively and procedurally 21^st 
-century agreement, which should not just be USTR's goal but the 
collective goal of the United States. But they need to embrace the 
informed questions quickly, as the 14^th round of the TPP negotiations 
are now scheduled in just a few weeks.

/This article arises from Future Tense, a collaboration among Arizona 
State University, the New America Foundation, and /*Slate*/. Future 
Tense explores the ways emerging technologies affect society, policy, 
and culture. To read more, visit the //Future Tense blog/ 
<http://www.slate.com/blogs/future_tense.html>/and the //Future Tense 
home page/ <http://www.slate.com/futuretense>/. You can also follow us 
//on Twitter/ <http://www.twitter.com/futuretensenow>/.
Slate com/Washington Post
/




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