Thursday, October 28, 2010

Open Letter to the President on ACTA Negotiations

Frank Pasquale

Lack of transparency in international trade negotiations over the Anti-Counterfeiting Trade Agreement has alarmed many. Chris Sprigman, Dave Levine, and Sean Flynn have drafted and circulated a letter to the President that I and over 70 other law professors have signed. Here are some key excerpts:

Your Administration promised to change the way Washington works. You promised to bring increased truthfulness and transparency to our public policy and law, including the Freedom of Information Act. You promised that wherever possible, important policy decisions would be made in public view, and not as the result of secret special interest deals hidden from the American people. Your Administration’s negotiation of ACTA has been conducted in stark contrast to every one of these promises.

First, ACTA’s negotiation has been conducted behind closed doors, subject to intense but needless secrecy, with the public shut out and a small group of special interests very much involved. Second, the Administration has stated that ACTA will be negotiated and implemented not as a treaty, but as a sole executive agreement. We believe that this course may be unlawful, and it is certainly unwise.

Third, and finally, we are concerned that the purpose that animates ACTA is being deliberately misrepresented to the American people. The treaty is named the “Anti-Counterfeiting Trade Agreement”. But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods – whether they are counterfeit or not – and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the U.S. or abroad. These norms will affect virtually every American and should be the subject of wide public debate.

While it has made many positive steps toward transparency, the Obama Administration has also made troubling decisions about key aspects of government openness and accountability. For example, it failed to get adequate information from BP about its use of dispersants in the Gulf. Glenn Greenwald has repeatedly and powerfully criticized the Administration's position "state secrecy." Danielle Citron and I have found, in our research on domestic intelligence, that there is a lack of accountability in this field as well. As Brooke Gladstone reported, according to "Shane Harris [author of "The Watchers"] . . . [Obama's] White House is uncommonly zealous in its pursuit of leakers." This is not a transparency record to be proud of.

The ACTA letter calls on the USTR to "Propose new language for the creation of the ACTA Committee that would require open, transparent and inclusive participation that takes into account the viewpoints of other stakeholders, including inter-governmental organizations (IGOs) and non-governmental organizations, in line with the principles of the World Intellectual Property Organization’s development agenda." A legitimate system of global trade governance demands no less.

Proprietary, secret technology now lies at the heart of the information economy. From Silicon Valley to Wall Street, important programs and decisions are protected by trade secrecy. In the banking sector, many firms have long shrouded their dealings in impenetrable complexity. When the resulting lack of trust pushed the banking system to the brink of collapse in 2008, the Federal Reserve chose to classify many of its stabilizing interventions as secret, too. The Fed is backing away from some aspects of that secrecy, but more needs to be done. ACTA would be a good place to start.

Note: For a good rundown on the substance of ACTA, see Margot Kaminski's posts on the topic.

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