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Why Wyden Has It Wrong on Fast Track and the TPP

DEEPLINKS BLOG
April 23, 2015

Sen. Ron Wyden took to Wired yesterday to argue that the Fast Track bill he co-sponsored to rush approval for trade deals like the Trans-Pacific Partnership (TPP) agreement will help protect the free and open Internet. Sen. Wyden has long been a staunch defender of the Internet and users' rights, and more recently, he has renewed his efforts to reform the Digital Millennium Copyright Act (DMCA) and the draconian Computer Fraud and Abuse Act (CFAA). We heartily applaud these endeavors—which is why his stance on Fast Track and the TPP is so disappointing.

#1: Free Flow of Information Provisions Do Not "Protect" the Internet

The primary reason Sen. Wyden boasts that Fast Track and the TPP would protect Internet users is because both contain provisions involving the "free flow of information." Such provisions live in the TPP's E-Commerce chapter, which has never been leaked, so no one except the negotiators themselves and corporate advisors with special privileges have seen the actual language. What we do know is based on public statements and leaked texts from other secret trade deals.

These free flow of information rules are designed to subvert data localization laws and to prevent countries from forcing content providers to censor, filter, or otherwise block online content—so they have the potential to protect free expression and access to information on the Internet. On the other hand, these same rules could be used to undermine consumer protections for personal data. For example, these kinds of provisions could be used to unravel national efforts to pass legal requirements around how companies handle citizens' medical data.

Negotiators should be working to reconcile this tension between powerful private and public actors who may have conflicting stances on major human rights issues such as privacy and free expression. Sen. Wyden claims that repressive regimes will "build walls around the internet that cut off the flow of information at national borders" and that by including these provisions in the TPP, the U.S. can set the standard against such policies. Even if these agreements were an effective way to counteract such a trend, it is not worth stifling important debate by passing the rules in secret. The consequences around these "free flow of information" provisions are complicated, and policies like these should not be decided without proper public consultation and transparency. That debate cannot happen without having a variety of stakeholders at the table, and secret, corporate-captured trade negotiations are not the place for it.

It is disingenuous at best for Sen. Wyden to claim that such provisions will be enough to protect the free and open Internet, especially given the existence of all the provisions in the Intellectual Property chapter that fly in the face of users' rights.

#2: The TPP's Extreme and Outdated Copyright Enforcement Provisions

Sen. Wyden says that he worked with the Internet community to make sure that the TPP does not contain provisions that would lead to something like SOPA and PIPA and that he fought to include a copyright exceptions and limitations framework that is consistent with fair use. Both of these claims are factually true, but they are meant to distract us from the various harmful provisions in the TPP's Intellectual Property chapter.

The copyright provisions in the TPP, based on analysis of a leaked draft from nearly a year ago, are worse, somewhat abstracted versions of policies you will find in U.S. law—mainly, the Digital Millennium Copyright Act (DMCA). For almost two decades, users in the U.S. and abroad have experienced a variety of unintended consequences from the DMCA. The TPP turns this broken system into an international standard. We have written extensively about all the various issues with these provisions, including the ISP liability provisions that mirror the DMCA takedown system and the DRM anti-circumvention rules that leaves users with little or no control over their own legally purchased digital devices. The leaked chapter from last year also revealed language that could be used to obligate countries to make it a crime for journalists and whistleblowers to report on corporate wrongdoing.

The problem is that the U.S. is currently undergoing efforts to review and reform our copyright rules. So if the U.S. signs the TPP with eleven other countries while they contain these defective DMCA rules, it threatens to discourage current and future lawmakers from fixing our U.S. copyright rules.

#3: TPP Will Impact U.S. Law

Possibly the most misleading assertion made by proponents of Fast Track and the TPP is that trade agreements will not prevent lawmakers from passing or amending laws in ways that are inconsistent with those secretive deals. Sen. Wyden makes a similar claim, saying that TPP will "in no way inhibit American voters and their representatives from changing laws we see as outdated or simply wrong." They say this pointing to a particular set of provisions in the Fast Track legislation that purport to absolve the U.S. government from obligations to conform their rules to signed trade deals.

But regardless of these provisions, Congress does not have the power to determine when or if international law is binding on the U.S. government. While trade agreements do not directly determine what lawmakers can and cannot do, there can be hefty international consequences when a government does not follow obligations from a trade agreement. Sean Flynn of American University's Program on Information Justice and Intellectual Property program has picked apart the underlying assumptions behind the legislation's provisions and explains how agreements like the TPP would impact U.S. law in practice:

Some other party of the treaty, or a private investor under investor-state dispute settlement (ISDS), could (depending on the enforcement language in the treaty) sue the U.S. for damages or to authorize trade sanctions. That dispute settlement process would bind the U.S. government—and have effect—even though it would not change U.S. law.

The most recent leak was of the TPP's Investment Chapter, which revealed how such investor-state courts could be used to undermine fair use and other user protections in U.S. law. That's because the ISDS system is specifically intended to be a strong deterrent to countries passing laws inconsistent with the underlying agreement. A big content company like a motion picture studio or a major publisher could very well go after any kind of public interest policy claiming that the rule harms their "expected future profits". The threat of a massive monetary settlement could be enough to discourage officials from passing rules—so while the TPP would not in itself be a fixed rulebook that lawmakers must abide by, there are other kinds of international legal mechanisms that can be used to penalize America for enacting public interest policies.

Beyond those legal remedies, the existence of binding trade agreements—even ones that, like TPP, were negotiated in secret and without public impact—can be invoked by legislators avoiding reform, or even sometimes by judges to justify certain legal interpretations. Defenders of TPP are trying to have it both ways: they claim it won't affect U.S. law when it would be inconvenient, but count on the weight of the agreement to freeze the current state of law, or nudge a more favorable view.

Conclusion

We have been grateful to see all the work Sen. Wyden has done to protect and uphold Internet users' rights in Congress. The new bills he has sponsored to help fix the DMCA rulemaking process and the CFAA are welcome after so much stalling. And yet, we cannot back his assertions that the TPP could do anything to help protect the Internet. All of the leaked TPP chapters concerning digital policy confirm that this deal will harm users' rights, in the United States and abroad. We cannot allow international deals that are decided through an opaque, corporate-dominated process to take hold and disempower current and future generations of Internet users. That is why we stand firmly opposed to the Fast Track bill—because it would eliminate the kind of oversight that we need to prevent such anti-user deals to pass in secret.

You can take action by getting in touch with your congressional representatives and letting them know that we're counting on them to defend the Internet from the White House's secret, anti-user deals.

If you're on Twitter, help us call on influential members of Congress to come out against this bill.

Read about all of our concerns with the TPP agreement:

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