Abstract: This paper explores why the Office of the U.S. Trade Representative (USTR) seems so shocked by current demands for what seem like basic democratic elements of transparency and public involvement. I summarize the current state of the Anti-Counterfeiting Trade Agreement (ACTA) and what it contains. ACTA is part of a larger trend of international lawmaking in the United States, a shift from Article II treaties to executive agreements. ACTA is also part of a longstanding trend of coziness between industry groups and government representatives within IP policy-making. Trade negotiations made through the executive branch are particularly subject to industry capture, and that industry capture is particularly problematic when it is located in an agency of the government that does not envision itself as publicly accountable.
ACTA occurred during what might become a turning point in U.S. international lawmaking: in the gap after the expiration of fast-track authority that caused the USTR to then justify negotiations under alleged ex ante authorization by Congress. The USTR negotiated ACTA on autopilot, assuming that it had, or soon would have, the authority to do so because this is the way things have worked in the past.
I conclude by explaining why and how things at the USTR must change. The USTR needs to involve Congress in the process, and not just by claiming ex ante authorization. Second, the USTR needs to come to the realization that the public focus on these issues has changed, and transparency is now the expected norm. Third, the USTR should acknowledge the flaws in its advisory committee process, and include public interest groups in its consultations. These recommendations are not mutually dependent, but are mutually reinforcing in how they would improve the process.
