ACTA Remains Closed: The Difference Between Inclusion and Transparency.
ACTA Remains Closed: The Difference Between Inclusion and Transparency.
ACTA Remains Closed: The Difference Between Inclusion and Transparency.

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    A number of blogs and websites have picked up the story of how the Office of the United States Trade Representative (“USTR”) continues to keep ACTA out of the public eye, even as it rolls towards its next round of negotiations in early November.

    The big story of last week was how drafts of one particular section on “Internet provisions,” likely to be discussed in the next round, was disclosed to a small group of people under a non-disclosure agreement (“NDA”). I was one of those people.

    Part of the story is a question of whether ACTA proponents, or the USTR itself, are trying to blunt calls for openness and transparency by appearing to open things ever-so-slightly. I'm not so certain that's the case, because we're still asking for USTR, the US government, and all of the negotiating parties to show the public—that would be everyone, not just groups with “public” in their name—the proposals for the agreement.

    For instance, in a memo sent to reporters on October 9th, the USTR released the draft agenda for the Korea meeting. That memo also included this paragraph:

    In preparing for this upcoming round of ACTA negotiations, USTR has broadened its consultations to include a diverse range of views including not only the cleared advisors who give input to USTR on a regular basis on intellectual property matters, but also to interested domestic stakeholders representing a broad range of views and expertise on internet and digital issues, including representatives from non-governmental organizations (NGOs) and industry leaders in intellectual property and technology.

    A cynical person could wonder if the USTR might then claim that it need not open the process further, since it had already provided this NDA process.

    It seems unlikely that USTR would make such an argument. The agency has consistently refused requests to make the documents public, and furthermore, I doubt that anyone could straight-facedly claim that the NDA process is anything like transparent.

    I described the NDA process to KEI as follows:

    Our first exposure to any text was on fairly short notice. We were allowed to view a draft of one proposed section as we sat in a room at USTR with some of its negotiators and counsel. We were not allowed to take any copies of the text with us when we left the meeting about an hour later. We were urged to keep any notes we took secure, and not to discuss the substance of what we saw unless USTR confirmed that the other party had also seen the text. The meeting proceeded with USTR discussing each point of the text in turn as we viewed it for the first time and compared the text to existing statutes, trade agreements, and treaties.

    We were invited to set up additional meetings or call USTR to confirm our recollections if we wanted to verify what we remembered from the meeting, as we were not allowed ot photograph, scan, or (presumably) transcribe the documents. We were told that some edits might be made in the near future to account for various concerns.

    A meeting a few weeks later convened a range of people who had been cleared to see the text, and functioned as a roundtable, at this meeting, a slightly altered version was shown, which in some areas was slightly better, in some slightly worse, but without some of the most troubling aspects resolved.

    USTR seems to be claiming not that this process is a transparent one, just that it's helping them make better decisions on ACTA. I'd like to believe that that's the case, but any suggestions we have made go into a black box of a process, and we'll have no way of knowing what will come out of the other end. The minuscule glimpse we got of how our concerns were dealt with wasn't massively encouraging, given that the content industry lobby is also having a say (and may well have had a say for longer, given its participation in the secretive trade advisory committees).

    This needs to change.

    While we appreciate USTR's recognition that increased participation is important, and its efforts in that regard, this process is still miles away from anything approaching real, public transparency. In terms of openness, a lot of the tension between what USTR says it wants to do and what has been done so far seems to come from the characterization of ACTA as a trade agreement, when its aims seem considerably broader than that. If we're going to be seeing a new kind of trade agreement that more broadly affects policy and legal interpretation, we're going to need a new, more open kind of process that lets the public see what agenda its government is pushing.

    I said that in the same statement, and I think it bears repeating. In its publicly stated objectives and the number of countries involved, ACTA more closely resembles something approaching an IP treaty than a trade agreement. Because of this, the openness, transparency, and oversight that we see in actual treaties should be applied here, not the closed-door nature of a business negotiation.

    One question I've seen asked is why I and others decided to sign an NDA to view the text of the draft Internet provisions section. For my part, getting the chance to view the text would better inform me of at least some potential problems ACTA might cause. The NDA does not prohibit me from criticizing ACTA or the process through which it is being developed, nor does it prevent me from passing along and criticizing aspects of ACTA which are publicly known or later revealed.

    A fundamental problem with a closed process is that it reduces the ability for the public to get involved. Criticisms of a secret agreement can be dismissed as unfounded. Public attention can wander from the issue by the time that the truth is finally known. Or, by the time the public sees the text, there may not be enough time to digest its nuances and implications to frame an intelligent debate on the merits of its provisions.

    All of these reasons have fed into my decision to sign the NDA and see the text. But all of these reasons are even more powerful arguments as to why the agreement should be seen by all.