[Originally posted on publicknowledge.org] In my previous post on the Transpacific Partnership Agreement (TPP), I explained how provisions of TPP might harm you. Of course, it’s hard to know exactly what might be bad within secret agreements like the TPP–all we have to go off of is leaked text that is many months old. But this raises another point: the secrecy itself is bad, not just because it makes it hard to comment on what may or may not be in the text, but because it undermines the democratic process. Secrecy might make sense for nuclear disarmament talks but it’s hard to see why agreements like the TPP–which amount to international treaties that set levels of intellectual property protection around the world–deserve such hush-hush treatment.

In this post, I will explain the secretive process that lets agreements like TPP, and its predecessor, the Anti-counterfeiting Trade Agreement (ACTA), become instruments that undermine your free speech and due process rights in the name of preventing copyright infringement.

The secretive process

Like ACTA, the TPP is being negotiated in secret. Members of the public are given almost no information about the provisions of the agreement. Not only do we not have access to actual draft text, we do not even have a real description of the substance of the provisions. Sometimes even information about meeting times and venues are not revealed.

What is the reason for this excessive secrecy? Because the Office of the United States Trade Representative (USTR) fails to acknowledge that these negotiations are in fact secret, there is no official explanation for the lack of secrecy. So, based on my involvement with these processes for the past three years, I am offering a few plausible explanations, some of which have been articulated by industry sources.

  • This is how it is always done: Many trade negotiations have happened in secret in the past. Because these negotiations did in fact result in treaties getting signed, the USTR is likely to look to this process as a good model completely overlooking the adverse impact it has on the public interest. Furthermore, while broader trade negotiations may happen in secret, many intellectual property (IP) agreements have a history of being negotiated more openly.
  • Openness will compromise our negotiating position: Some trade negotiators may argue that revealing their negotiating positions publicly will alert other negotiators and compromise their ability to negotiate effectively. While these fears may be a reason for initial secrecy, they do not justify continued secrecy after all negotiators have access to proposed texts.
  • Openness will prevent candid negotiations: Some argue that openness will prevent the give and take necessary to reach compromises, which are essential to any negotiation. Fair enough. But here’s the problem. Secrecy also allows negotiators to give away your rights in order to privilege the interests of corporations. This danger is particularly acute when negotiators, like the folks at the USTR, consider industry, as opposed to the public, their constituency.

Some are more equal than others

While you are kept in the dark about trade negotiations, industry representatives are not. Provisions in the Trade Act require that representatives of industry that either benefit from or are affected by trade agreements provide their input on the provisions of these agreements to the USTR. They do this through their membership on the Industry Trade Advisory Committees (ITACs). There is one ITAC, ITAC-15, dedicated to IP issues and includes representatives from the large movie and music companies as well as representatives from large telecommunications companies. These representatives most likely have access to texts of IP agreements, including the IP chapter of the TPP, and are able to influence its provisions. The deliberations of ITAC 15 are secret. What is worse, members of the public or their representatives are denied membership on ITAC 15, a result of the decisions of the USTR and the Dept. of Commerce, and not a requirement of the Trade Act.

While allowing industries to present their perspectives through the ITAC process is not necessarily bad policy, doing so while shutting out your voice, is. At the least, interests of industry are often different and sometimes in conflict with yours. The SOPA/PIPA protests were a stark reminder of that fact. The presence of representatives from telecommunications companies, whose interests are sometimes at odds with the interests of content industries, does not change that reality. Yet trade negotiators at the USTR fail to see the distinction between the two. And that makes the one-sided ITAC process even more dangerous. So, what can you do about this? Unlike ACTA, which the USTR claimed did not require assent from Congress, the TPP does. As I mentioned before, the good folks at the EFF have put together a way for you to contact your member of Congress demanding more transparency. Write to your member of Congress now.