OCTOBER 11, 2010 - Law professor David Levine. (Photo by Kim Walker)“If you want to kill a trade agreement, or any effort to make new law or policy, keep it secret for an excessive amount of time and leave the timing of its eventual release to the law or policy’s skeptics and enemies.”  That should be the lesson of today’s leak of the Intellectual Property (IP) Chapter of the Trans Pacific Partnership Agreement (TPP) by Julian Assange’s WikiLeaks.  Indeed, as Assange himself said upon announcing the leak, “I think that this release is going to pretty much kill it.”  Although the substance itself will garner much opposition (like provisions regarding access to medicine and copyright duration), the surprising fact is that Assange has received much aid in reaching that conclusion from the TPP negotiators themselves because of the hyper-secrecy that has characterized the negotiations.

The TPP, a massive, multilateral agreement spanning more than 20 substantive areas, has been described by the United States Trade Representative (USTR), which represents the US in the negotiations, as an “ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. economic priorities and values.”  But after 19 rounds of negotiation going back four years, there has never been an official release of a draft agreement.  That has meant that highly controversial areas like intellectual property rights have been a public black box – there has been no meaningful way for the public to offer meaningful and timely feedback and suggestions to the negotiators.  The result has been that certain special advisors, made up almost exclusively by representatives of pharmaceutical and entertainment companies, have been the only constituencies who could offer knowledgeable and timely comments to the USTR and other negotiating countries.

The result, not surprisingly, has been growing opposition to the agreement on transparency and accountability grounds.  Often eclipsing any substantive concerns, the extreme secrecy of the negotiations has called the entire process into question.  Indeed, it has served to unify otherwise disparate parties around the rallying cry of “more transparency.”  Of course, this very secrecy undermines trust in the process and the resulting substance.

As a result of these efforts, and an enduring and increasingly wishful belief apparent that somehow, some way, the draft would be made public on the TPP negotiators’ terms despite the recent experiences of the National Security Agency to control leaks (by way of one example), we now have an IP chapter leak provided by WikiLeaks.  As a result, the negotiators have lost a great deal of control over the timing of the release of information, its context and the narrative around the negotiations themselves.  Importantly, a leak is not an official release, meaning that we still cannot be sure that it’s accurate or reflects current negotiating positions.   Nonetheless, Wikileaks’ leak now becomes the prism through which public debate and analysis will run.  And even if the negotiators now decide to release a formal text, the damage may be largely irreversible.  And that’s the point.

There is a time and place for secrecy.  Indeed, diplomacy and negotiation requires a modicum of secrecy and discretion in order to allow negotiators to flesh out positions, as well as points of agreement and disagreement.  But in any democratic lawmaking process, there comes a time when the public has to be let in on the discussion.  Indeed, the public was let in on the controversial Anti-Counterfeiting Trade Agreement (ACTA) in advance of its finalization, albeit too late in the process.  The endless official secrecy (combined with several leaks) mobilized ACTA’s opposition that created a constituency ready to attack the substance.  The result was a failed process.

Rather than allow Wikileaks, or anyone else, to control the flow of information, a better system could consider secrecy neither absolute nor nefarious.  Instead, secrecy could be viewed as a useful lawmaking tool.  Moreover, the timing of transparency, properly considered, could vary depending on a multitude of contextual factors, from the level of public interest to the need for outside expertise.

But that’s not what has happened in the case of TPP.  By holding on to critical information for years, all the while professing to be interested in “stakeholder” input, the negotiators themselves allowed one factor to rule the timing of the release and public discussion: opposition to secrecy.  And it is that opposition to secrecy, rather than considered public debate and discussion on the substantive merits of TPP, that may very well be its undoing.