In previous posts, I have talked about various problems with the Transpacific Partnership Agreement’s (TPP) intellectual property (IP) chapter, the sequel to ACTA. Many of these problems could be solved with greater transparency. Yet the Office of the United States Trade Representative seems comfortable with this secrecy arguing that trade agreements cannot be negotiated any other way. They also assure us that they would not pursue provisions that are inconsistent with U.S. law. Yet, if history is any guide, they very well might be.
The TPP’s secretive process provides ample opportunity to do just that. After all, the sources of particular proposals are obscured, so the US could simply point fingers at other country delegations or say that the obligation of secrecy prevents them from revealing the source of particular proposals.
This phenomenon—using international negotiations to adopt provisions that cannot be adopted in the U.S.—is not new. The term of art used to describe it is “policy laundering.”
According to the ACLU, policy laundering “undermines liberties at home by working through secretive international forums.” Like money laundering, where a person tries to hide the source of funds by obscuring its source, policy laundering “involves the cycling of policies that lack legitimacy through outside institutions in order to enter them into circulation despite their lack of acceptance.”
There are several consequences of policy laundering that short-circuit the normal democratic process:
1) Congress may be required to make changes to U.S. law in
order to “comply with international obligations”;
2) Courts would interpret the law so that the law would be
consistent with “international obligations;” and,
3) Congress would be prevented from making changes to certain
U.S. laws because these changes might take us out of compliance with “international
The adoption of the “anticircumvention” provisions of the Digital Millennium Copyright Act (DMCA) is perhaps one of the clearest recent examples of policy laundering.
These provisions prevent you from “circumventing,” or breaking, the DRM (or any other kind of digital lock) on a copyrighted work, even if the use itself is lawful. This is why you can’t transfer a DVD you’ve already bought onto your iPad or even your computer. A bill to adopt these provisions was first introduced in Congress in 1995. However, significant opposition from various groups ensured that the bill did not become law.
Meanwhile, the U.S. propelled similar provisions at the World Intellectual Property Organization (WIPO). The resulting treaties, the WIPO Copyright Treaty and the WIPO Treaty on Protection of Performances and Phonograms, required countries to provide “adequate legal protection and effective legal remedies” against circumvention of DRM.
Although the WIPO provisions did not go as far as the U.S. negotiators would have liked, they obligated Congress to enact rules against circumvention, giving us the DMCA. In its conference report explaining the DRM provisions, Congress provides very little explanation of the need for these provisions other than the need to comply with the WIPO Treaties.
There are many other examples of policy laundering, including more than a dozen free trade agreements the US has signed with various countries, many of which push the boundaries of US law by calling for provisions that are not entirely consistent with U.S. law.
The TPP, the latest in this series of trade agreements, may be substantively inconsistent with U.S. law. But TPP negotiations continue in complete secrecy—the last text we’ve seen was leaked in March 2011—and with indecent haste to conclude an agreement without considering its ramifications on various interests. If we are to learn anything from the SOPA/PIPA protests in January, it’s that people are outraged when policies that could affect the future of the Internet are negotiated behind closed doors, without any public input.
It is widely believed that the next round of TPP negotiations will take place in May in Dallas. PK will be following the Dallas round closely, urging the USTR to promote openness and transparency, and reporting on new developments. In the meantime, urge your member of Congress to support our proposal to ensure openness in international IP negotiations.