UPDATE: You can hear me reading a slightly updated draft of the paper over on my SoundCloud page.
I'm going to do something I haven't done before. I'm going to post a draft of a paper I am working on. I've posted on status.net links to the Google Docs version of the paper, but I've never posted here. Part of the reason is because we need content!
I missed the March posting of my first paper because I haven't had time to go back and format. You'll see here what I mean. There are no footnotes. For the footnotes you'll need to click on the GDocs version.
I would love feedback. You'll get credited for your help if you give feedback, just like a couple people did at the end of the last paper. The paper is due May 3rd, 2013. If you find this after that date, look for the final version on the site...the Google Doc should be current either way though.
Secrecy has a long history in what we now know as the United States of America. The first rule the Constitutional Convention was that you did not talk about the Constitutional Convention. Both the Federalist and Anti-Federalist Papers were written pseudonymously by ghosts of ancient Rome. Then, why so serious about secrecy in the Trans-Pacific Partnership (TPP)#?
The reasons for the backlash against the TPP may well be voluminous, but I# would like to focus on three points. First, the public has seen the outcome of treaties shrouded in darkness like Anti-Counterfeiting Trade Agreement (ACTA). Secondly, the public is impatient. Third, and perhaps most importantly, the amount of secrecy is not proportional to the level of import of the negotiations.
I. Past Performance of International IP Treaties
There are three aspects of past performance that come into play with TPP. There is the A) long-term past (essentially, colonialism) and B) the medium term past (TRIPS) and C) the near term past (ACTA).
International treaty negotiations always take place under the specter of colonialism, so in some respects it is unremarkable to intellectual property (IP) debates. In fact, just about everything that is international in nature bears the marks of colonialism.# However, IP is a distinctly western idea#, and thus colonialism is of particular importance for understanding the IP debates. The details of how colonialism effects international IP are the subject of many books# and papers#. Here, the details are unimportant. As TPP information leaks out of inner circle of negotiators, they may become more important. For now, it is enough to understand that there is a base level of skepticism built into the system due to the history of colonialism.
Realizing that colonialism cannot be forgotten, one must look at the most recent major global# treaty on IP.
While everyone knows that past performance does not guarantee future results, the history of international IP treaties is quite telling. Initial ignorance of IP treaties leading to instability in the long term health of the treaty goes back at least to TRIPS, where developing nations were duped into signing.# This has lead to developing nations turning to WIPO# and increasing expansion of exceptions in TRIPS#. While there is nothing inherently wrong with turning to WIPO or aggressively interpreting a document in self-interest, if developing nations had gotten what they thought they were getting out of TRIPS, then perhaps policy makers in those countries could be spending resources on more important issues, such as clean drinking water and education.
Whether US-based interest groups critical of the TPP such as the Electronic Frontier Foundation have or should have in mind the best interests of developing nations is a matter only marginally relevant to understanding their response. The fact remains that those that ignore history are doomed to repeat it. In this case, history suggests that the interests of those that do not have a voice in the negotiations will not like the results.
ACTA is different than TRIPS in that none of the least developed nations were involved in ACTA negotiations. Further, the colonialism aspect is a bit different in Canada, the US and Australia, since ethically speaking the colonizers are still in control.
In some respects, this actually helps the transparency argument. Transparency, like IP, is a western concept, dating back to Athens.#
If the powers that be had learned anything from the ACTA fiasco#, TPP negotiations would be more transparent. Unfortunately, the problem is getting worse, not better.#
The Stop Online Piracy Act (SOPA) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) debates offer a counter-example of how debate can happen.# SOPA was introduced to the House on October 26th, 2011.# PIPA was introduced May 12, 2011.#
The obvious argument against SOPA/PIPA as being models of transparency are that those are US bills and not international agreements. While this is true, it fails to address the reason as to why secrecy is required in international negotiations. Perhaps that argument would have quieted some dissenters if countries like Vietnam, the 123rd most transparent country in the world#, was the one pushing for secrecy.
Normally, I like long term thinking, even if I think the Long Now Foundation is a bit counter-productive.# I abhor the quarterly thinking of publicly-traded companies. Why then do I think that the trade representative should give in to the fickle public? Well, I don’t, or at least I don’t for that reason. In fact, transparency can help avoid the short-sighted “let’s get this thing signed” mentality.# It is better to get it right, than to get it wrong quickly.
However, the guiding question of the paper is “Why people are so angry about the lack of transparency in TPP negotiations, despite the long history of secrecy in the United States government?” One of the answers seems pretty clearly to be impatience on the part of the public. There can be little doubt that if the Constitutional Convention were to happen today, the public would expect talking heads on both sides to be blabbering about it 24/7. The public would not expect Rush Limbaugh to have a seat at the table, but they would not expect Rush to say “I don’t know what to tell you folks, because everything is so secretive.”
Some of the reasons for this are obvious. The Internet and cable news have made information overload generally more of a problem than inability to get information.# Another likely reason is the increased campaign season for elected officials. Literally as soon as Obama won the 2012 election, the media was speculating on the 2016 candidates.# The last of the obvious reasons, and connected to the other two reasons mentioned supra, is that there is cultural attention deficit-hyperactivity disorder.# Again, I do not necessarily mean to imply that policy-makers should build policy around fast-food culture, as it is a problem worth addressing in its own right, but it is a phenomenon tied to the discourse on the TPP.
I suspect too, that people are getting impatient with the Obama administration. There are those that will hate Obama because he is a Democrat, because of his name or because of his race, but
There are many reasons for this.# One reason, as it relates to the TPP, is that Obama talks the talk of transparency, but increasingly does not walk the walk.# While the TPP is only a small piece of the Obama administration and its growing transparency problem, it fits within this larger narrative, which is a narrative Democrats will need to deal with in 2014 and 2016. While a rational observer may not connect the Obama administration to a Senator such as Ron Wyden that is critical of the president’s policies on the TPP, many people will simply see the “D” beside both of their names and connect their policies.
III. Weighing Secrecy versus Transparency
The value of secrecy (or privacy) in certain context, as well as the value of transparency could certainly fill volumes of books.# Here I would like to look at how the public likely weighs for aspects of secrecy versus transparency. Those four areas are A) executive power versus congressional power, B) the value of foreign relations now versus long-term foreign relations C) self-determination versus “getting it right” and D) frankness in private versus frankness in public.
Sometimes the transparency debate looks like the old “Napster Bad” video.# The dichotomy is clear: transparency good, secrecy bad! Much as Napster (like the VCR before it) had the ability for substantial non-infringing uses#, perhaps there is a place for secrecy. Perhaps, for instance, there should be national security exceptions to blanket transparency.
The question becomes, where to draw the line? Unfortunately, the TPP negotiators have put us in a situation where we do not need to critically assess where the line should be drawn. Under no reasonable conception of transparency have the TPP negotiations been transparent. While reasonable minds can differ about how open the TPP negotiations should be, under no reasonable conception should the TPP have been conducted the way it has been thus far.
A. Executive versus Congressional Power
Much of political life in the United States can be charitably called a “pissing match.”
The best argument the Obama administration has is a broad interpretation of Article II, Section 3, Clause 4 of the US Constitution which states “[the president] shall receive ambassadors and other public ministers” or broad structural arguments such as those adopted in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
However, Curtiss-Wright dealt with an armed conflict#, while the TPP does not deal with what might arguably be the war powers#. The TPP is a trade agreement, which should fall under the purview of foreign commerce power of the US Congress even if the Trade Act is renewed.# Further, even in the national security realm, Senators are briefed on important news.# However, Senators were denied access to the TPP negotiations despite their Constitutional power to regulate foreign commerce.# To turn the absurd into farce, Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America were all made privy to the details of the negotiations.# Three of the most-hated companies in the United States are given access, but the Senate was not. This is almost as classic as Amazon censoring 1984.#
B. Negotiating Relations versus Long-term Foreign Relations
Even if one accepts that the President’s foreign relations powers trump the foreign commerce powers of Congress, the lack of transparency still makes no sense. Eventually, when it is set to become law, the public will find out the text of the TPP. What if there is significant citizen outrage like with the SOPA/PIPA situation (or ACTA in Europe)? In that situation, we may have to back out of the treaty. This will set back US-Asian relations as well as relations with our neighbors both to the north and the south.
There will presumably always be issues of one form or another with our neighbors to the north and south: migratory birds, the great lakes, whales, etc. However, right now in particular, people are being murdered at the US-Mexican border due to drug violence.# Now is not the time to damage that relationship due to an FTA that we do not even need# with Canada or Mexico post-NAFTA.#
C. Self-Determination versus “Getting It Right”
As ACTA demonstrates, secrecy by no means guarantees “getting it right” and for many secrecy per se means you are doing it wrong. Rightly or wrongly, given that eventually there will be a vote, the TPP negotiations are regularly called undemocratic.# The argument is pretty easy to make. The Charter of the UN recognizes self-determination#, but how can one self-determine without facts?
On this issue, the MPAA is correct, the discussion about transparency is a distraction.# However, it is a distraction of their making. The MPAA probably does not actually want a discussion on the merits, considering the merits of SOPA and PIPA were so roundly defeated. It is true that SOPA and PIPA dealt with technology issues that may or may not be in TPP, but that is entirely the point - the public does not know.
D. Private Frankness versus Public Frankness
There is the argument that people can speak more frankly behind closed doors. There is not enough room in this paper to adequately address this issue. Suffice it to say this argument holds greater weight with the president, who is under 24-7 media coverage and who can actually make decisions than with a USTR, who despite the 24-hour news cycle, is under less scrutiny than the president. I realize that earlier I argue that the public is impatient and that the 24-hour news cycle is part of this. Here I am speaking about matters of degree. There is no doubt that the USTR is under some amount of scrutiny. This paper is an example of that. However, unless the TPP leads to WWIII (and no one is suggesting it will), Ron Kirk’s name will be lost in the annuls of history, whereas Obama’s will not. Unless TPP negotiations drag out past mid-January 2017, this is Obama’s baby.
While Obama’s history and TPP negotiations thus far do not paint a rosy picture, there is hope. For example, the G20 will allow the Civil 20 a seat at the table at this year’s G20 conference.#
Additionally, Ron Kirk leaving as US Trade Representative# could begin a more positive chapter in TPP negotiations, though Obama’s praise of Kirk may suggest that is more dream than reality.#
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