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Pointing out that the United States Trade Representative (USTR) does not understand the concept of “transparency” hardly qualifies as news. It’s kinda like “Jerusalem Chief Rabbi Places Last In Pulled Pork Bar-B-Q Contest.” But every now and then, USTR’s generalized failure to understand why increasing public participation, sharing more information with the public, and generally bringing the standard of transparency up to what we would actually consider vaguely transparent actually threatens U.S. interests in other areas.
Case in point, the International Telecom Union (ITU) meeting in Dubai for the World Conference on International Telecommunications (WCIT) this December. I've written before on why I worry a number of the proposals at made by various repressive regimes at WCIT may have long-term consequences for freedom of expression online. Many global civil society organizations, as well as many countries committed to freedom of expression and fundamental human rights, oppose these efforts to leverage WCIT for such ends. At the same time, however, many of these countries and organizations have long standing serious concerns around Internet governance. In particular, they resent what they see as the dominance of U.S. government and U.S. corporate interests in supposedly neutral "multistakeholder" forums like the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN is the current home for much of what people mean by "internet governance." This makes expanding ITU jurisdiction to include Internet issues attractive to some of these countries and organizations, despite the danger to free expression, as one of the few possible counterweights to the U.S.
Persuading enough of these countries and other stakeholders that the downside of expanding ITU authority outweighs the potential benefit is therefore the chief challenge for the U.S. delegation. Unfortunately, the continued conduct of USTR in reenforcing the view that the U.S. Government is the tool of industry by doing things like pushing ACTA (which continues to be held up in Europe and elsewhere as a symbol of the U.S. shilling for Hollywood at the expense of free expression), and maintaining a cloud of secrecy around the Trans-Pacific Partnership (TPP) negotiations, makes this much harder. While we are kind of stuck with ACTA, the USTR can do a heck of a lot more around transparency in TPP. Given that the ITU has made a number of conciliatory gestures to civil society on the transparency front in the last few weeks, It would be really helpful if USTR would at least stop pissing on its critics and generally making ITU look good.
I cheerfully acknowledge that every now and again, the folks at USTR that recognize the importance of transparency and legitimacy try to do something about this, but they are apparently outweighed by the folks who think none of this transparency stuff matters or seem incapable of hearing that there might be problems. By contrast, ITU has engaged in an active charm offensive to woo civil society and calm fears that the WCIT is a conspiracy to “take over the Internet.”
Compare ITU and USTR over the last few months on transparency, and you will see what I mean. In May a number of civil society organizations, including Public Knowledge, signed on to a letter from the Center for Democracy and Technology that pointed out the lack of transparency around WCIT and the lack of opportunities for civil society to engage either at WCIT or in the ITU process generally. The ITU responded by acknowledging the criticism and by releasing a number of documents providing some basic background briefings on areas of discussion.
This looks like pretty weak tea for transparency, until you compare it to the USTR. We have pressed USTR to do at least this much for proposals in the Trans-Pacific Partnership (TPP) negotiations. USTR [holds another round of regional negotiations in San Diego this week], but – following its usual custom – has explained that making any summary of any discussions or developments is simply impossible. Instead, USTR’s great leap forward was to responded to PK’s criticism of the ‘science fair’ type format for engagement with delegates in Dallas where every org can register a table and include for the San Diego round the opportunity to make presentations to the delegates. (Both of these, I should point out, are not part of the official negotiation agenda but are extra-curricular activities should the delegates have time and chose to take advantage of the chance to engage groups one on one.)
Lest one think it is only civil society organizations frustrated with this lack of transparency and engagement, I point out that over 130 members of the House of Representatives, as well as a number of Senators, have written to US Trade Representative Ron Kirk to demand greater transparency around the TPP process. USTR also denied the request of Rep. Darrell Issa (R-CA), who actually represents a district in San Diego where the current TPP round is taking place, to attend the negotiations as an observer. This follows on Representative Kirk’s rather intemperate response to a letter from 30 Academics criticizing TPP’s lack of transparency before the Dallas round.
So while ITU remains no great shakes on the transparency front, it at least has acted all conciliatory and made some gestures in the right direction. By contrast, as I have noted before, USTR’s chief accomplishment in the last few months has been the global branding of ACTA and the US generally as (a) bullies who use our global market power to bully other nations into neo-imperialist treaties negotiated in secret; who are (b) so utterly clueless that we continue to think everything is just utterly hunky-dory despite riots in Europe and rejections of the treaty by various governments and government organizations.
Just to be clear: this global branding of the U.S. by USTR as incapable of even basic transparency or engagement with civil society is NOT HELPFUL!!! Especially when it comes to persuading global civil society orgs and ITU member states that the U.S. cares Internet freedom and human rights while other countries trying to leverage the ITU and WCIT don’t. USTR’s persistence in treating transparency at TPP (and in other negotiations) as a box to be checked, the inclusion of industry trade organizations in “civil society” forums while simultaneously excluding non-commercial civil society organizations from “industry forums,” and otherwise demonstrating contempt for the whole concept of public accountability in trade negotiations is going to seriously bite the U.S. negotiators’ rear-ends in Dubai. The Hon. Ron Kirk’s “Shut Your Pie-Hole Transparency Hippies” letter is going to be exhibit one for Russia, the Arab block and anyone else trying to leverage WCIT on “why the U.S. is not your friend and all this stuff about Internet freedom is so much chin music.”
Now I know there are folks at USTR, and elsewhere in the U.S. government who understand about the importance of transparency. I get that they are trying to be responsive to criticism to the extent they can. For example, as noted above, in response to our criticism about the stakeholder science fair at Dallas, USTR will also allow stakeholders (which includes industry as well as civil society) to sign up to do longer presentations. But I also know that there are far too many folks at USTR – particularly at the highest level – who read what I just wrote and translate in their brain to “fubba wubba fubba wubba USTR totally rocks on transparency, everyone else shut your pie-hole.”
So here is the bottom line. Right now, the USTR brand – and by extension the U.S. trade negotiations generally – can be summed up as follows: “Transparency UR Doin’ It Wrong” followed closely by “ACTA – NO WANT!!!” USTR’s reputation on transparency is so bad it makes ITU’s pathetic little gesture toward transparency look good. In the few short months between now and WCIT in Dubai, the U.S. really needs to turn its branding around. Otherwise, no matter how lame ITU’s transparency actually is in practice, the U.S. and its allies will have a very difficult time calling them on it.