WYDEN (at 7:02): Let me turn, and wrap up, with some questions again about intellectual property, because the same issues that were on the table in the Protect IP Act, the Stop Online Piracy Act, the discussion we had with respect to ACTA are now on the table with respect to the negotiations on the Trans-Pacific Partnership agreement, the TPP discussions.
I’m getting a lot of questions, complaints, concerns from people who care passionately about Internet freedom about what’s going to happen with respect to technology policy, about the fact that right now one is required to obtain a security clearance and permission from the administration to see documents pertaining to the TPP.
The public, particularly those who feel so strongly about this issue, which has generated enormous interest across our country, the public just feels shut out with respect to this debate about Internet freedom, competition and innovation. I just want to get a sense of why the administration agreed to a process for these discussions that doesn’t seem to me to be in line with the President’s commitment to transparency and open government.
Give me your sense of how we got into this, and what we can do to turn it around, because I think millions of Americans, as we saw in the discussion with Protect IP and with SOPA, they want to be part of these discussions and they’re feeling locked out in one proceeding after another.
KIRK (at 8:45): Well, Senator, if I might, if I can go back to one of my guiding principles from when I was mayor. I had the privilege to serve as the mayor of Dallas. When we were in a situation like this, I would always tell my staff, “The truth is an option.”
So let’s go back to one thing, and one you can be helpful with. First, we don’t help ourselves by trying to conflate the recent debate over SOPA and PIPA with what we’re doing in TPP. Because nothing could be further from the truth, first of all. So, one, you can help us by making sure people understand, this is completely the opposite. None of the issues with which you had the most concern, over those provisions in SOPA or PIPA, are included in the TPP, first of all.
So that concern is unfounded, and I think we have some credibility on this because when we were negotiating ACTA, many of the same voices that had legitimate concerns over PIPA put out a tremendous amount of misinformation over ACTA which was subsequently shown to be untrue.
What we are doing in our work in ACTA and TPP, frankly, is the opposite. We are trying to make sure we promote the free flow of data and information. We have no provisions at all trying to restrict the flow of information. And we are following the same balanced approach in the TPP that Congress established when you passed the Digital Millennium Copyright Act. And they are complimented by what we are trying to do on market access opening provisions.
So, I think is to make sure we get the truth out that these are two different animals. Now, secondly, as I mentioned to Chairman Baucus and Ranking Member Hatch and others, we have engaged in more public consultations over this Trans-Pacific Partnership — probably by tenfold. Public consultations with Congress over all of our provisions that we have been negotiating. We had over just 350 public consultations with Congress alone, and many more with our stakeholders.
We have had stakeholders participate as observers in a number of our sessions, negotiating, including those that are concerned about these issues. And we are proceeding with the same negotiating parameters in this Trans-Pacific Partnership that the United States has negotiated every trade agreement over the last twenty to thirty years.
So, nothing that we are doing is different. We have moved to disclose more information sooner than any previous administration, as we did in the case of ACTA. But the reality is, because these are very complex negotiations, we are representing the United States and the President as your counsel. As are other partners. You can understand that there is a certain degree of discretion that has to occur to get these countries to sit down at the table and negotiate with us.
But I would defend our record for transparency, for inclusion of all groups, against any other administration. I think we have gone further. And we are absolutely acting consistent with the President’s commitments that he made about having a more transparent administration.
WYDEN (at 12:07): Mr. Ambassador, let’s take your statement — and that’s why I wanted you to kind of expand on your thinking — and juxtapose it with what people who care about these issues are coming to me and telling me. They’re saying, right now there is currently a requirement for a security clearance to see TPP texts and documents that can impact Internet freedom. That’s what people tell me. That they’ve got to have a security clearance to see the documents.
You put that, alongside your statement, and let me ask you about something that might clear this up and actually get this resolved. What is wrong with letting the public see the texts in real time of at least what your office is proposing as it relates to Internet freedom? In other words, I’ve heard your views. I’ve tried to tell you what people are coming and telling me. And I’m trying to say to a public official who always looks to try to work with me, why don’t we resolve this and resolve it by putting the text in real time of what the proposals are with respect to issues that can touch on Internet freedom — at least what people feel could touch on Internet freedom — what would be wrong with putting those online, so that we could dispose of this issue, show that once again that the President, who I know feels strongly about transparency and openness, is demonstrating that, and we put this issue to bed?
KIRK (at 13:47): Well, again, Senator, we have moved, if you look at our modus operand on ACTA, as soon as we had enough of a convergence among our negotiating partners and we thought we had the text, we moved to do that. When we did, I would remind you, at least our office received a fairly stern message from the two committees that oversea my work that this not become the norm for USTR for the practical reason.
And I understand the need. More of this is when we disclose. But the practical answer to, ‘What’s wrong with putting it all out now?,’ is nothing, unless you don’t ever want to negotiate a trade agreement, because no one will sit at the table and negotiate with us if you put all the terms of every text out. It’s an evolving process.
Secondly, with regards to the security process, as you know, as chairman of the trade subcommittee, this Congress mandates that I have a number of trade advisory committees, because of the complexity of trade deals. And you want to make sure that you have, first of all, thoughtful intelligence by those affect by it. All of them operate as, by what we call, Senator, “cleared advisors.” That [inaudible] because of Congressional law.
And you give us the latitude for those who serve on these advisory committees, and have passed the security clearance, we do share the text with those whether it relates to Internet or agriculture or pharmaceuticals or any of the multitude of trade advisory committees that we have. And that is one way that we make sure that we have the interests of different communities voiced and taken into consideration in our trade policy. It’s a very thoughtful policy. It serves us well, and I believe it is the most appropriate way for us to go forward.
WYDEN (at 15:37): Mr. Ambassador, just to see if we can wrap up on this point. I also serve on the Intelligence Committee. So, day after day, I see just how you draw the bright lines with regards to security clearances and matters that can be classified and deserve special treatment for the implications they can have to national security, in particular.
I just think, and you mentioned the norm, that the norm changed on January 18, 2012. Where millions and millions of Americans said, we won’t accept being locked out of debates on Internet freedom. They said, we’ve just got to have a chance, on something that is so important to innovation and competition, we’ve got to have a chance to be heard.
I’m not asking for everything to be published, and certainly, I respect your judgment with respect to, you know, issues that affect national security and classified matters. But, issues that pertain to freedom and innovation on the net are policy questions, and the American people want the chance to participate.
I’m going to give you the last word on it, but it relates a bit to what we wrapped up with on the ACTA discussion. That was one topic, and now we’re having some of the same issues be raised on TPP.
These questions are not hypothetical, Mr. Ambassador. They aren’t. The prospect of the Congress of the United States passing a piece of legislation, for example that changes the Digital Millennium Copyright Act and does it in a way that’s inconsistent with ACTA, that’s very real. These are not hypothetical, speculative questions.
We’re not going to resolve all of them today. I understand that. But what I hope we’ll do, and I what I want to take a few extra minutes, and I appreciate your courtesy on this, is to make clear how important it is that you throw open the doors of your agency so that the public can be heard with respect to their views on Internet freedom. Because I thought you made an excellent presentation in terms of describing how you’re handling the process, but when I walk out of this room, I’m going to get more calls, and they’re going to say, “I’ve still got to get a security clearance in order to see something about Internet regulation. That doesn’t make sense.”
So, let’s you and I, see if we can work this out. Take away from this my position that I feel very strongly with respect to TPP about getting the proposals that you’re looking — from a policy standpoint, not the classified matters — getting them online so that the public can have a chance to be heard on it, and I do, because I don’t think these are going to be speculative questions. We learned on January 18th of this year that these issues aren’t speculative any more — that people are going to just, you know, talk about in the abstract. They are very real. People want to be heard. Last word to you.
KIRK (at 23:09): Senator, I could not agree with you more. There is no form of government that is closer to the people than local government. No disrespect to the Senate or the Congress, I’m proud to serve here. But I understand the need for transparency in government as much as any other official, as the President does.
But just as we have a representative form of government, that’s why we have elections. It’s why you sit here. Because the people of your state collectively understand, everybody in your state can’t come to Washington. So we have elected representatives who we count on who will express the voice, and not just those you agree with, those you disagree with.
Then this Congress further refines and understands that while you retain the Constitutional authority to enter commercial treaties, as a practical matter, this Congress is not going to sit down and negotiate with other countries. So you have ceded that authority to the administration. And part of that is you have directed us to have an advisory — a very balanced committee of advisors, that represent a very broad range of those affected by trade policy. So all these voices, these concerns you’ve heard, have been expressed.
Now, I would submit to you again, and I agree with you, you and I are going to the same place, but I will tell you, Senator, we have done more to reach out to stakeholders across the board, to hear their concerns, not just on issues of digital freedom, but on every element of what we’re tabling within the TPP. But, as you understand as an elected official, hearing from all of these voices and everyone getting exactly what they want, is two different things.
I think we’ve had the most open, transparent process ever. We have taken more steps to put more information before the public on our websites, on our TPP websites, than ever before. But we have to draw that balance between making sure that we have the space we need to negotiate with nine very different countries who may have different thoughts on issues of Internet freedom, of Internet protection, than we, and have that in a constructive way, while at the same time making sure that our public is conferred, so we get to the point to making sure we keep our businesses and industries competitive. I think we’ve done that.
I know you care about it, and that’s why we’ll always listen for your thoughts and guidance on this. But I would just take issue, that I do believe that we have absolutely met the President’s commitment of having one of the most transparent administrations ever.
WYDEN (at 21:42) I had promised you the last word, Ambassador, and I’ll just amend that pledge for ten seconds or thereabouts. There’s no question that’s the way it used to work, and I think what the public is saying is that we’ve got to do better. Particularly because the Internet is the engine of innovation, competition and so many of the new jobs.
So take away that you’ve got a specific request for this afternoon for at least putting the portions of the text — not the classified matters — that relate to Internet freedom policy online. I think the American people want it.