Free trade doesn’t have to be a trade secret
Texts of the ongoing Trans Pacific Partnership negotiations between the United States and 11 other Asia-Pacific countries have been secreted behind closed doors in a way that, according to experienced trade adviser Michael Wessel’s harshly critical Politico article, is unprecedented in past trade deals, such as NAFTA or KORUS. It’s created an ongoing game of information cat-and-mouse that makes WikiLeaks, by default, the most reliable source of trade news. It’s even spawned a politically charged gag website that went viral on social media.
ICYMI, @fightfortheftr published all of the @WhiteHouse‘s “not secret” #TPP text here: http://t.co/HahfBeQNYN pic.twitter.com/k40TAAAJiQ
— Melinda St. Louis (@MelindaGTW) June 4, 2015
It’s the Streisand effect. Intense efforts to keep the trade deal secret are only drawing more, mostly negative, attention. Even parties who might be supportive of its contents have become vocal critics of the opaque negotiation process. It’s difficult to support something you don’t know anything about.
According to the leaked documents, there are legitimate reasons for concern. The Electronic Frontier Foundation has closely tracked and explained the ways TPP would strengthen copyright protections, against the interests of users. It appears there are provisions to criminalize circumvention of digital rights management, to hold digital intermediaries liable for copyright infringements and to restrict fair use.
Why should our trade deals privilege one group of legitimate American stakeholders over others? Using a federal Freedom of Information Act request, Intellectual Property Watch obtained confidential emails from the Office of the U.S. Trade Representative that show corporate players have played a significant “advisory” role in the trade negotiations. (The emails are posted and searchable on EFF’s website.) Some argue that tougher intellectual property laws wouldn’t necessarily be a bad thing. It nonetheless must be considered a red flag to see IP-industry representatives play such a prominent role in what ostensibly are secret negotiations.
It’s certainly possible that, for certain phases of negotiation, a closed door might be necessary. One can credibly argue that removing sensitive talks from public view is desirable on grounds of both efficiency and logistical practicality. But it’s important also to bear in mind some important countervailing concerns with both of these arguments.
On the one hand: Trade deals can be difficult to advance over time because the interests of the negotiating parties shift as new governments and parties come into power. A trade deal can be derailed by the election of a new president in the United States, for example.
On the other: Democratic governing processes often make things slower or more difficult. Democracy, citizen participation, transparency and openness remain principles that make governments more responsive to the people and are therefore necessary, even when they are inconvenient. To give the extreme example – dictators can be very efficient governors.
While trade deals happen at a transnational level above that of democratic governments, the process should remain as transparent as possible. It’s particularly critical that members of Congress, who represent the voting public, are able to make informed decisions and take their constituencies’ views into account to the greatest extent possible.
On the one hand: Trade deals occur between parties whose interests sometimes conflict. Therefore, members on opposite sides of the negotiating table won’t want to reveal all of their cards in the course of negotiation.
On the other: According to Robert Zoellick, a former U.S. trade negotiator, in the negotiations to which he has been a party, there typically were literally hundreds of government officials, advisers and lobbyists who were privy to the talks. In a very real sense, these negotiations aren’t secret at all. They are just kept out of view of the general public, and particularly out of the view of skeptics. Policymaking transparency may indeed invite criticism, but it’s hard to see how more open communication during negotiations (and not just after negotiations) is a bad thing. This is particularly true when the diplomacy in question concerns trade, rather than military agreements or peace treaties.
The Trade Promotion Authority bill coming up for a vote shortly in Congress likely will include some positive new transparency measures, such as requirements to publish summaries of the U.S. position in trade negotiations. If passed before the TPP is done, which seems highly likely, these measures would give members of Congress and some staff members access to the full text of the negotiations. TPA also would make the entire text publicly available for at least 60 days before signing.
But given the scope of the Trans Pacific Partnership— a huge multilateral trade agreement with policy implications that extend to include intellectual-property, labor and dispute-resolution issues—Congress and the general public need more than just TPA transparency. But the Obama administration has chosen the opposite path, maintaining and expanding secrecy rather than seeking ways to reduce it. The secrecy around the TPP flies in the face of the Obama administration’s purported commitment, vaguely fleshed out in a fact sheet, to transparency in trade.
The TPP process is effectively adding uncertainty to the international business climate while undercutting citizens’ faith in government accountability. When it comes to transparency and accountability, both this administration and future administrations can and should do better.