The Office of the United States Trade Representative (USTR) has failed the American public. Let's count the ways.
- It has presided over the conclusion of a massively unpopular trade agreement, the Trans-Pacific Partnership (TPP), that both Presidential candidates have rejected. Among many other effects, the agreement would extend copyright terms by two decades in six of the member countries, would lock in criminal penalties for copyright infringement, and put journalists and whistleblowers at risk for disclosing corporate secrets.
- The USTR is notorious for having one of the Administration's worst revolving doors, meaning that staff frequently cycle between the agency and powerful industries. This has resulted in the effective capture of the agency by those industries, which explains why U.S. trade policy is so biased in favour of Hollywood and the pharmaceutical companies.
- It publishes an annual Special 301 Report that harasses other countries into making unnecessary changes to their copyright and patent laws in favor of those same powerful industry lobbies, with harmful effects on ordinary users around the world, including users from developing countries.
- The USTR has consistently resisted all attempts at making it more transparent in its engagement with the public. It included no reforms to the transparency of trade negotiations in its latest commitments as a member of the Open Government Partnership. Last year it appointed an insider, namely its own General Counsel, as its Chief Transparency Officer, who has brought in precisely zero reforms since then.
We could go on… but suffice it to say that the USTR has shown no inclination to improve its own transparency, and that external measures are needed to force change. EFF therefore cautiously welcomes last week's introduction of H.R. 6141, the Promoting Transparency in Trade Act, by Representative Debbie Dingell, with co-sponsorship by Representatives Rick Nolan, Mark Pocan, Tim Ryan, and Jan Schakowsky.
This legislation would do two out of three important things that nine groups, including EFF and others asked for in a May 2016 set of Recommendations [PDF] for the USTR's 2016 Open Government Plan:
- It would also require the publication of the negotiating position of the U.S. at the conclusion of such negotiating round, which may differ from the draft consolidated text. This is equivalent to the existing practice of the European Commission for its trade negotiations, as adopted in 2014.
- It would require the USTR to appoint an independent transparency officer, rather than an insider. This would reduce the appearance of a conflict of interest between an officer who is on the one hand required to protect the agency's own interests, and on the other hand to hold it to account and elevate the transparency of its practices.
The one important thing that the current legislation omits to do is to require the publication of consolidated draft texts of trade agreements after each round of negotiations. This reform, alone, would be a significant advance which would bring trade negotiations into line with other intergovernmental treaty negotiations such as those that take place at the World Intellectual Property Organization (WIPO). It is unfortunate that, although it was part of an earlier draft, this didn't make it into the current draft bill. We are hopeful that the bill can be amended to include this in its final form.
None of these three proposals, even including the omitted one, is particularly radical. They are far less radical, for example, than a separate proposal by Congressman Morgan Griffith that would actually divest the USTR of its authority and move it to a committee of Congress. EFF considers the Promoting Transparency in Trade Act to be an important and achievable step forward in making long-needed reforms to the USTR. Provided that it can be amended to include the publication of consolidated texts, EFF supports the bill.