Brianna van Kan, Ben Picozzi, and Rebecca Wexler
Yale Media Freedom and Information Access Clinic
On April 3, 2015, Intellectual Property Watch (IP-Watch) completed its written arguments to the federal district court in Manhattan in a case that could compel the United States Trade Representative (USTR) to release basic information regarding USTR’s negotiations over the proposed Trans-Pacific Partnership (TPP) trade agreement. In particular, IP-Watch’s lawsuit and summary judgment motion asks U.S. District Judge Edgardo Ramos to order USTR to release documents that relate to the intellectual property provisions of the TPP—including USTR’s final negotiating positions, the portions of the draft agreement that the U.S. has proposed or adopted, and communications between USTR and the industry representatives who sit on Industry Trade Advisory Committees (ITACs). Both IP-Watch and USTR have filed opposing summary judgment motions and are now waiting for Judge Ramos to rule on the case.
If IP-Watch prevails in its motion for summary judgment, the public will have much greater opportunity to scrutinize the TPP. Until now, only members of the ITACs have enjoyed meaningful access to the negotiation process, because only they have the ability to actually review the draft language of the agreement and comment directly to the USTR, which negotiates on behalf of the United States. However, the ITACs may not accurately represent all of the stakeholder communities who have interests in the outcome. The TPP covers numerous trade- and labor-related issues, and, of particular interest to IP-Watch, it promises to change and standardize laws across a whole range of intellectual property issues. The details of the agreement could have a major impact on the balance between the rights of producers, consumers and others when it comes to copyrighted or patented works, including medicines, books, music, software, and online content. Public access to the requested documents would break the ITACs’ effective monopoly on policy input, and would help ensure that journalists are able to report meaningfully on the content of the agreement while it is still under negotiation.
The litigation follows USTR’s denial of IP-Watch’s March 2012 FOIA request. USTR did not respond to IP-Watch’s request for more than a year. When it did respond, it withheld the majority of the documents it located, and produced only a fraction of the email traffic between USTR and ITAC members with very heavy redactions. In December 2013, IP-Watch filed its lawsuit to enforce the public’s right of access under the Freedom of Information Act. IP-Watch’s lawsuit prompted USTR to re-review and release additional, less redacted email communications and certain other documents that it had previously withheld—effectively admitting that the agency had for years kept far too much information secret. But the agency continues to refuse to release any documents containing information regarding the TPP’s actual contents, or the ITAC members’ detailed comments on the draft language of the agreement. Most notably, USTR has invoked the national security classification system to withhold any documents that contain U.S. proposals, negotiating positions or draft language for the agreement. USTR has argued that disclosure of such information to the public would harm foreign relations, even though all such material has already been disclosed to the other countries participating in the negotiations.
IP-Watch is a non-profit independent news service that reports on the interests and behind-the-scenes dynamics that influence the design and implementation of international intellectual property policies. IP-Watch is represented in the lawsuit by the Media Freedom and Information Access Clinic at Yale Law School. Yale law students Brianna van Kan, Ben Picozzi and Rebecca Wexler are litigating the case under the supervision of attorneys Jonathan Manes and David A. Schulz. The MFIA Clinic is dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. The Clinic represents news organizations, independent journalists, public interest organizations, activists, researchers and others in litigation to enforce their rights under the First Amendment and the Freedom of Information Act.
