White House Creates Secret Process as Solution to Transparency For Key IPR Negotiation

The U.S. government has created a secret process for insiders to view key negotiating documents for trade agreements -- as an alternative to demands for more openness.

The particular negotiation in question is a controversial trade agreement on the enforcement of intellectual property, referred to under the inaccurate but emotive and prejudical title, the Anti-Counterfeiting Trade Agreement (ACTA). So far, all of the negotiating texts for ACTA are secret, as are even the names of persons attending the negotiations.

There has been an extensive effort by many critics of ACTA to bring the process out of the shadows. As pointed out in extensive detail by NGOs, most multilateral and plurilateral IPR negotiation have been and are now far more transparent. ACTA has been an exception.

To respond to criticism that the negotiations are non-transparent, and captured by a handful of publishers and other IP owners, the White House ironically decided to build upon an existing but flawed system of advisory boards, that are stacked with well connected corporate insiders to create a secret process to give some people access to the documents under a non-disclosure agreement (NDA). The NDA declares that the documents are protected as a matter of national security, and provides for tough sanctions if secrecy is violated.

Under this approach, 32 persons with good Washington, DC connections were allowed limited access to the ACTA negotiating text, and invited to a secret White House roundtable to debate the provisions for regulating the enforcement of IPR on the Internet. Only groups with close ties to the technology industry were invited.

KEI got wind of this process in early September. USTR refused to tell us who had been given access to the text under an NDA, on the grounds that the release of the names would undermine the security of the United States. We pursued a FOIA request, which was finally granted on October 9. For damage control, the White House put out a statement to press on its new consultation mechanisms, on the same day. Details of this process, including the names of everyone who signed the NDAs, is available here:

There are so many things wrong with this process it is difficult to know where to start. Here are a few obvious points:

* NDAs were freely given out to Washington, DC lobbyists and law firms representing big corporations. Among the 80 members of the TransAtlantic Consumer Dialogue, just one group -- Public Knowledge --was given the chance to sign an NDA. No academic experts were included, and the general public was completely shut out.

* The White House can now control who can monitor its actions, and limit criticism through contract. The NDA does not allow any public substantive comment on the documents that are reviewed.

* The ACTA process is a stark contrast to the negotiations on the 1996 WIPO Internet treaties, where drafts were routinely made public and placed on the Internet, and the public was given opportunities to comment via federal register notices. Now you can make comments, but without knowing what you are commenting on.

If this approach was applied to Congress, selected lobbyists would be allowed to see drafts of bills, but the press and the public would have to wait until the bill became law, to know what had happened.

All of this seems pretty out of sync from the transparency memo the White House issued on the first day of the Obama Administration.

More background available here: