U.S. Trade Rep on the Charm Offensive—Slight Tweaks to Secret TPP Process is Far From Enough
The U.S. Trade Rep announced last week that it will create a new “Public Interest Trade Advisory Committee,” in an attempt to allow public interest groups to provide more input into U.S. proposals in trade agreements like the Trans-Pacific Partnership (TPP). That aim is important, and underserved by many USTR policies, but this proposal is an inadequate remedy to fix the gross imbalance of influence from corporate interests.
The main problem with these Trade Advisory Committees (TACs) is that all of their members are forced to sign non-disclosure agreements. This means that any civil society representative who joins this new TAC would be legally restricted from being able to discuss or publicly advocate on the provisions she has seen. The system is designed to be a Catch-22 to keep out real public oversight: public interest advocates may join to advance the public interest in these negotiations, but doing so would mean agreeing to put a gag on themselves. What makes this arrangement even more opaque are strict rules of TACs exempting communications between negotiators and industry lobbyists from Freedom of Information Act requests.
These committees are divided into three tiers: the first is the Advisory Committee for Trade Policy and Negotiations, made up of 32 members representing various industries, interest groups, and trade associations—20 of whom are corporate representatives. The second tier has four committees that are more public interest directed, as they do not strictly represent business interests. It includes committees on labor issues and another on trade and environmental policy. The most influential TACs are those on the third tier, the 16 Industry Trade Advisory Committees (ITACs). This group is divided into different policy areas including energy, e-commerce, and yes, one on “intellectual property.”
The proposed Public Interest TAC would be on the second tier. One issue is that committees in the second tier are not afforded the same access to meetings as those in the third, corporate-dominated tier. But a more fundamental issue is that all public interest representatives are grouped into one separated committee. That means civil society representatives from a wide range of policy issues will all be heaped together. Representatives of the public interest need to have a seat at the table where specific policy issues are being discussed and requested on the industries' behalf. If there are 16 separate ITACs and one public interest committee, some interests will be more strongly represented.
No big surprise, the idea to segregate public interested groups like this came from a proposal pushed forth by the chairs of the Industry TACs. Back in 2010, the Obama administration was considering including non-corporate reps in these third-tier, policy specific TACs. The industry reps joined together to oppose this proposal. They wrote:
We note that the ITACs were created and designed to present the views and interests of the producing sectors of the U.S. economy. ITACs are charged with giving highly technical advice. Exports are created by business, investments are created by business, and good, high-paying jobs are created by businesses...We believe it’s important that any changes in the ITAC advisory membership reform be done understanding that the key point of this whole system is to be sure that the negotiators understand the needs of businesses.
At least the corporate advisors were frank about it. This system isn't designed to represent broader public interest issues; rather, it's there to streamline lobbying by corporations to get the policies they want into trade deals. So then they go on to propose the following:
You’ve got two options. You can open up the existing ITACs and bring in NGOs and other non-industry groups. We strongly disagree with that option. Option two is to set up another committee, or group of committees, within the present three-tiered structure that would provide a forum for seeking the advice of NGOs and other non-industry groups.
That misstates the problem. Public interest groups have provided no shortage of "advice" to the U.S. Trade Rep on what should and shouldn't be in trade agreements. The real issue is that these trade agreements continue to prioritize corporate policies at the expense of users and the millions of individuals who will be affected by their extreme copyright policies.
As long as U.S. trade negotiators give favorable treatment to corporations, they'll continue to neglect the public interest groups' input on trade policy. That conflict is especially ironic given that our positions on the TPP provisions are directly concerned with innovation, investment, and job creation. This is nowhere clearer than in our criticism against the U.S. proposals on ISP liability, DRM, and its proposal to expand the standard of copyright term lengths even farther.
Trade deals that uphold corporate interests above all other concerns are not going to be improved by a slight tweak in the current process. This new Public Interest TAC is far from enough to address the gross lack of transparency in this process—and worse, will likely be used as a fig leaf to justify the U.S. Trade Rep's ongoing cozy relationships with industry groups in the other existing TACs. EFF will not legitimize this back-room lobbying process only to be ignored by the U.S. Trade Rep, or be limited by a Non-Disclosure Agreement. As members of civil society, it is our job to report and explain what is going on in secret proceedings to the public so we can work to stop bad law altogether.
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