Tell Congress: We Want Trade Transparency Reform Now!

The failed Trans-Pacific Partnership (TPP) was a lesson in what happens when trade agreements are negotiated in secret. Powerful corporations can lobby for dangerous, restrictive measures, and the public can’t effectively bring balance to the process. Now, some members of Congress are seeking to make sure that future trade agreements, such as the renegotiated version of NAFTA, are no longer written behind closed doors. We urge you to write your representative and ask them to demand transparency in trade.


Demand transparency in trade deals

Representative Debbie Dingell (D-MI) has today introduced the Promoting Transparency in Trade Act  (H.R. 3339) [PDF], with co-sponsorship by Representatives Laura DeLauro (D-CT), Tim Ryan (D-OH), Marcy Kaptur (D-OH), Jamie Raskin (D-MD), Keith Ellison (D-MI), Raúl Grijalva (D-AZ), John Conyers (D-MI), Jan Schakowsky (D-IL), Louise Slaughter (D-NY), Mark DeSaulnier (D-CA), Dan Lipinski (D-IL), Chellie Pingree (D-ME), Brad Sherman (D-CA), Jim McGovern (D-MA), Rick Nolan (D-MN), and Mark Pocan (D-WI). Representative Dingell describes the bill as follows:

The Promoting Transparency in Trade Act would require the U.S. Trade Representative (USTR) to publicly release the proposed text of trade deals prior to each negotiating round and publish the considered text at the conclusion of each round.  This will help bring clarity to a process that is currently off limits to the American people.  Actively releasing the text of trade proposals will ensure that the American public will be able to see what is being negotiated and who is advocating on behalf of policies that impact their lives and economic well-being.

We wholeheartedly agree. Indeed, these are among the recommendations that EFF has been pushing for for some time, most recently at a January 2017 roundtable on trade transparency that we held with stakeholders from industry, civil society, and government. That event resulted in a set of five recommendations on the reform of trade negotiation processes that were endorsed by the Sunlight Foundation the Association of Research Libraries, and

A previous version of the Promoting Transparency in Trade Act was introduced into the previous session of Congress, but died in committee. Compared with that version, this latest bill is an improvement because it requires the publication of consolidated draft texts of trade agreements after each round of negotiations, which the previous bill did not.

Another of our recommendations that is reflected in the bill is to require the appointment of an independent Transparency Officer to the USTR. Currently, the Transparency Officer is the USTR’s own General Counsel, which creates an conflict of interest between the incumbent’s duty to defend the office’s current transparency practices, and his or her duties to the public to reform those practices. An independent officer would be far more effective at pushing necessary reforms at the office.

The Promoting Transparency in Trade Act faces challenging odds to make it through Congress. Its next step towards passage into law will be its referral to the House Committee on Ways and Means, and probably its Subcommittee on Trade, which will decide whether the bill will be sent to the House of Representatives for a vote. The Senate will also have to vote on the bill before it becomes law. The more support that we can build for the bill now, the better its chances for surviving this perilous process.

Passage of this bill may be the best opportunity that we’ll have to avoid a repetition of the closed, secretive process that led to the TPP. With the renegotiation of NAFTA commencing with the first official round of meetings in Washington, D.C. next month, it’s urgent that these transparency reforms be adopted soon. You can help by writing to your representative in Congress and asking them to support the bill in committee.


Demand transparency in trade deals

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With Release of NAFTA Negotiating Objectives, Our New Infographic Makes Sense of It All

The United States Trade Representative (USTR) has just released its trade negotiating objectives [PDF] for a revision of NAFTA, the North American Free Trade Agreement between the United States, Mexico, and Canada. NAFTA is expected to open up a new front in big content’s neverending battle for stricter copyright rules, following the unexpected defeat of the Trans-Pacific Partnership (TPP). Meanwhile, big tech companies are now wielding increasing influence with the USTR, and demanding that it negotiate rules that protect their businesses also, such as prohibitions against restrictions on the cross-border transfer of data.

In EFF’s comments to the USTR about what its negotiating objectives should be, we urged it not to include new copyright rules in NAFTA, because of how this would prevent the United States from improving its current law or adapting to technological change. We also expressed the need for caution about including some of the new digital trade (or e-commerce) rules that big tech companies have been asking for, for similar reasons, and because the trade negotiation process notoriously lacks the balance that would be required for it to negotiate a sound set of rules.

Copyright Rules

The negotiating objectives are hopelessly general, but it seems that our requests largely fell on deaf ears. The negotiating objectives on intellectual property relevantly include to:

  • Ensure provisions governing intellectual property rights reflect a standard of protection similar to that found in U.S. law.
  • Provide strong protection and enforcement for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade. …
  • Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works.
  • Provide strong standards [of, sic] enforcement of intellectual property rights, including by requiring accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms. 

These provisions are consistent with the U.S. demanding similar provisions to those that had been contained in the TPP, including life plus 70 year terms of copyright protection, criminal penalties for “commercial scale” copyright infringement, and legal protections for DRM—all of which would be new to NAFTA. Disappointingly, there is no reference to be found to the inclusion of a “fair use” exception to copyright, as we had requested in our submission.

Digital Trade (E-Commerce) Rules

As for digital trade, the objectives include to:

  • Ensure non-discriminatory treatment of digital products transmitted electronically and guarantee that these products will not face government-sanctioned discrimination based on the nationality or territory in which the product is produced.
  • Establish rules to ensure that NAFTA countries do not impose measures that restrict crossborder data flows and do not require the use or installation of local computing facilities.
  • Establish rules to prevent governments from mandating the disclosure of computer source code.

While some of these rules might not be harmful, if they were drafted in an adequately open and consultative fashion, we have previously expressed concerns that the ban on restrictions on crossborder data flows may not allow countries adequate policy space to protect the privacy of users’ data. We are also worried about the possibility that a blanket ban on laws requiring the disclosure of source code could limit countries from introducing new measures to protect users from vulnerabilities in digital products such as routers and Internet of Things (IoT) devices.

Our New Infographic Makes Sense of It All

You might well be wondering how the new version of NAFTA will compare with other digital trade negotiations, such as the TPP (which could still rise again between the other eleven countries besides the United States), and the Regional Comprehensive Economic Partnership (RCEP, whose negotiators are meeting this week in Hyderabad, India). To help explain, we’ve put together this infographic which illustrates five of the major ongoing trade agreements that are likely to contain provisions on digital issues. It provides a quick overview of their current status, the countries involved, and the issues that they contain.

Current Digital Trade Negotiations

Click to view full-size

One thing that all of these agreements have in common is that there is no easy way for users to access them. Negotiation rounds take place in far-flung cities of the world, with little or sometimes no notice to the general public, and next to no transparency about the texts under discussion, and with little or no official means of access to the negotiators for public interest advocates such as EFF. Nevertheless, EFF is on the ground in Hyderabad this week to stand up for users, and we plan to do the same in the coming NAFTA negotiations too.

Despite today’s release of the USTR’s negotiating objectives for NAFTA, they are nowhere near detailed enough for us to know what rules the USTR will really be asking for from our partners. And that’s dangerous, because we don’t really know what we’re fighting against, and whether our fears are justified or overblown. Worse, we might never know until the agreement is concluded—unless it is leaked in the meantime. That’s just not acceptable, and it needs to change.

Keep reading Deeplinks for updates on the progress of each of these trade agreements, and how they will affect you. And if you’d like to support our difficult work in fighting for users’ rights in all of these secretive venues, you can help by donating to EFF.

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As USTR Takes Office, EFF Sets Out Our Demands on Trade Transparency

The new U.S. Trade Representative, Robert Lighthizer, took office this week. EFF has written him a letter to let him know that we’ll be holding him to the commitments that he made during his confirmation hearing about improving the transparency and inclusiveness of the USTR’s notoriously closed and opaque trade negotiation practices. Our letter, which you can download in full below, reads in part:

The American people’s dissatisfaction with trade deals of the past, such as NAFTA, does not merely lie in their effects on the American manufacturing sector and its workers.  Another of the key mistakes of previous U.S. trade policy, we respectfully submit, has been the closed and opaque character of trade negotiations. … 

Absent meaningful reforms that allow the public to see what is being negotiated on their behalf, and to participate in developing trade policy proposals, the public will reject new agreements just as they rejected failed agreements of the past, such as the Trans-Pacific Partnership and the Anti-Counterfeiting Trade Agreement.

Conversely, given a real voice in trade policy development, there is the potential for trade agreements of the future to become more inclusive, better informed, and more popular—all of which are essential if America is to retain and strengthen its global economic leadership in the digital age.

Tech industry groups the Internet Association, [PDF]  the Computer and Communications Industry Association (CCIA) and the Internet Infrastructure Coalition (i2Coalition) [PDF], have also sent letters to the new USTR. In addition to addressing how America’s future trade agreements should address tech policy issues, the CCIA and i2Coalition letter addresses the need for greater transparency in trade negotiations, stating “we encourage you to maintain as much transparency in trade negotiations as is reasonably possible. More open negotiation processes will contribute to increased support for the trade agenda.”

House and Senate Democrats have reportedly delivered the same message [paywalled] to Ambassador Lighthizer during his first week in office, urging that the renegotiation of NAFTA—which officially launched today—be made more transparent than the negotiations of its failed predecessor, the TPP.

Fixing Trade Agreements in Five Simple Steps

To further reinforce this message, EFF has gone even further—taking out a paid advertisement in POLITICO magazine’s Morning Trade newsletter which runs all this week. It directs to a new page of EFF’s website that is specifically targetted at D.C.’s trade community. You can see a copy of the banner graphic that we’ve used for that campaign to the side.

Will any of this make a difference? We certainly hope so, but we’re not counting on it. That’s why in case Ambassador Lighthizer fails to heed our message, we’ll also be supporting new legislation to be introduced in Congress to force the USTR to implement the necessary reforms. One way or another, the long overdue reform of trade negotiation processes has to happen, and we’re committed to seeing it through.

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RCEP's Digital Trade Negotiations Remain Shrouded in Secrecy

From May 2-12, the Philippines hosted the 18th round of negotiations of the Regional Comprehensive Economic Partnership (RCEP), a TPP-like trade agreement covering ten members of the Association of Southeast Asian Nations (ASEAN) and six partner countries – China, India, Japan, Australia, New Zealand and South Korea. Access to the negotiators was extremely limited, with the negotiations themselves taking place behind closed doors. The non-availability of an agenda or confirmation of meetings and limited access to negotiators were amongst the factors constraining civil society organisations’ (CSOs) engagement.

For example, EFF organised a dinner presentation on May 9 for IP negotiators, with panelists from Public Citizen, Sinar Project, La Trobe University and Third World Network. Although the event drew a handful of negotiators from four of the partner countries along with an ASEAN representative, it transpired that it had been scheduled at the same time as a private RCEP event of which we hadn’t been informed. Given the high interest in the RCEP and its impact on rights of citizens across Asia, it is pitiful that groups like EFF are forced to bear the costs of reaching out to negotiators, and that negotiators show such little inclination to engage with us when we do.

Unfortunately, this is a familiar story for the hardy few civil society activists who have been covering this neglected trade deal. Few of the negotiating states have convened national consultations, held public hearings, or initiated an on-the-record public notice and comment process. There has also been no official release of the chapters and textual proposals related to rules that are being tabled. Given that the negotiations are closed to the public, we do not know what text is currently being deliberated on by the negotiators and/or the consensus on provisions among states.

Secrecy in negotiations and lack of information is a common feature in free trade agreement negotiations. In the past, CSOs have had to resort to guerilla tactics to intervene and defeat similar agreements such as the Trans-Pacific Partnership (TPP) and the the Transatlantic Trade and Investment Partnership (TTIP). Yet, just as with those better-known trade-deals, the potential significance of RCEP is immense, and so too are the dangers it could pose to Internet users if the negotiators fail to take their interests into account.

Digital Rights and RCEP

Similar to the TPP, RCEP includes provisions dealing with intellectual property (IP), e-commerce, investment, goods, services, telecommunications, and competition. The 16 Asian countries negotiating RCEP cover 12% of the world trade and represent nearly half of the global population. If ratified, the RCEP will not only be the first trade agreement for the digital economy will also set the rules for trade across Asia over the next decade. While not all institutional consequences of the partnership can be fully known in advance, much will depend on how the negotiation develops.

RCEP’s e-commerce provisions will likely deal with cross-border information flows, data localization, legal immunity of intermediaries and requirements concerning disclosure of source code that have not been tested elsewhere. We have also raised concerns that the provisions included under the leaked IP chapter notably on enforcement in a digital environment and failure to include fair-use exception may end up expanding the the digital divide. RCEP attempts to enshrine stringent obligations for the protection of broadcasters that remain controversial and are currently still under negotiation at WIPO. None of these problems would have come to light if earlier drafts of the agreement had not been leaked.

There has been a recent push to raise awareness of the RCEP with CSOs conducting strategy meetings and organizing weeks before the negotiations kicked off in Manila. Many CSOs also organised activities parallel to the negotiations clubbed under the #NoRCEP week of action. On May 10, members of the People Over Profit network staged a protest action, inside the convention centre where the negotiators were meeting with stakeholders, demanding a stop to the negotiations. RCEP will impact developers and startups, small and medium enterprises that create goods and services for an increasingly global market. The right trade policy environment, one that accounts for diverse national contexts and encourages innovation is critical for the growth and development of the region.

The next round of negotiations set to happen in Hyderabad, India in July this year. Hoping to address the lack of representation of views included in the process and reflect on some of the concerns raised, EFF will facilitate engagement between negotiators and affected stakeholders at a public meeting in Hyderabad. In the meantime, we maintain our call for ASEAN and the RCEP member states, many of which have complained about their lack of representation in US led trade agreements, to improve on the broken process that resulted in the failure of the TPP, and create avenues for meaningful consultation and participation from stakeholders.

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Post-TPP Special 301 Report Shows How Little Has Changed

Last Friday the United States Trade Representative (USTR) released the 2017 edition of its Special 301 Report [PDF], which the USTR issues each year to “name and shame” other countries that the U.S. claims should be doing more to protect and enforce their copyrights, patents, trademarks, and trade secrets. Most of these demands exceed those countries’ legal obligations, which makes the Special 301 Report an instrument of political rhetoric, rather than a document with any international legal status.

Last year’s Special 301 Report included 45 references to the Trans-Pacific Partnership, which was at the time soon expected to become the jewel in the USTR’s crown. This year, following the TPP’s humiliating defeat, it is not mentioned in the Special 301 Report even once. Indeed, not only has the TPP been expunged from the text as if it never happened at all, but the USTR has also finally ceased touting the Anti-Counterfeiting Trade Agreement (ACTA), another dead IP treaty that it had nonetheless included as a supposed global standard in its previous Special 301 Reports.

Instead, the USTR reports on its work at the World Trade Organization (WTO), which has opened up as a possible new front for the USTR to push former TPP standards. The Special 301 Report scolds certain countries for “server localization mandates, cross-border data flow restrictions, [and] programs to support only local data hosting firms,” all of which were concerns previously addressed by the TPP, and now proposed for resolution at the WTO. Whether the WTO has the appetite to address such issues, however, remains to be seen; we’ll know more following its Ministerial Conference at Buenos Aires in December this year.

Other than the omission of the TPP shibboleth, it’s surprising how little else has changed in this year’s Special 301 Report compared to last year’s. In fact, this is the first time ever that the exact same 11 countries have been nominated for the Priority Watch List as last year, along with the exact same list of 23 countries for the regular Watch List. The topics on copyright that are treated in the Special 301 Report are also a repetition of last year, including complaints about stream ripping, mod chips, and media players that are configured to access infringing streams. China, in particular, is singled out for criticism in this regard:

China remains a leading source and exporter of systems that facilitate copyright piracy, including websites containing or facilitating access to unlicensed content, and illicit streaming devices configured with apps to facilitate access to such websites. These systems also include devices and methods that facilitate the circumvention of technological protection measures, which enable the delivery of services via the cloud and protect video games and other licensed content.

In addition to this, the USTR continues to complain about countries that fail to adequately protect trademarks used in domain names, and India in particular is criticized for “the issuance of problematic guidelines that appear to restrict the patentability of computer implemented inventions.”

None of these complaints have any legal basis. The technologies mentioned in the paragraph about China all have substantial non-infringing uses, such as the use of circumvention tools for backup, archival, compatibility, and repair. The question of how and to what extent trademarks should be protected in domain names is a question for multi-stakeholder bodies such as ICANN and its national-level equivalents, not for governmental horse-trading. And India’s position on computer implemented inventions (which prohibit computer software from being patented per se, but allow software in combination with new hardware to be patented) is broadly in line with similar policies held in Europe and elsewhere.

Then again, nobody in the know ever read the Special 301 Report expecting it to be legally accurate. Rather, it’s just a document used to threaten other countries into submission to unilateral U.S. demands. And with the demise of the TPP, those threats are now emptier than ever before.

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NAFTA Renegotiation Will Resurrect Failed TPP Proposals

Yesterday a draft letter was leaked from acting USTR Stephen Vaughn to Congress on the Trump administration’s intentions towards NAFTA. The letter describes the administration’s intention to “update” NAFTA to include provisions on topics such as copyright and e-commerce that had been contained in the TPP:

Most chapters are clearly outdated and do not reflect the most recent standards in U.S. trade agreements. For example, digital trade was in its infancy in 1994. … Rules for intellectual property rights, state-owned enterprises, rules of origin, customs procedures, and ensuring the benefits of trade benefit small and medium businesses have all been improved in newer trade agreements.

On copyright, the letter promises to “seek commitments from the NAFTA countries to strengthen their laws and procedures on enforcement of intellectual property rights, such as by ensuring that their authorities have authority to seize and destroy pirated and counterfeit goods, equipment used to make such goods, and documentary evidence.” On e-commerce, it commits to tackling “measures that impede digital trade in goods and services, restrict cross-border data flows, or require local storage or processing of data, including with respect to financial services”.

Both of these are consistent with the wholesale transfer of TPP obligations into NAFTA, although they are annoyingly vague about what specific rules the U.S. will be including, other than the examples given. However it is worth noting that in at least one respect—the extension of the data localization ban to the financial industry—the letter proposes going beyond what was contained in the TPP. Exclusion of the financial services industry from those rules was one of the main sticking points with the TPP for Republicans while Obama was promoting it.

The USTR letter also indicates that the administration intends to maintain the controversial Investor-State Dispute Settlement (ISDS) provisions of NAFTA, which allowed pharmaceutical company Eli Lilly to sue Canada for the country’s decision not to grant two drug patents. Although Canada recently won that case, the ability for foreign companies to challenge legislation and court decisions that go against their financial interests was one of the TPP’s most controversial provisions, and will remain divisive as the NAFTA renegotiation goes forward.

Concern on E-Commerce Rules in Trade

The news about Trump’s plans for NAFTA coincides with EFF’s workshop on electronic commerce rules in trade agreements at RightsCon in Brussels today. (An introductory slide presentation from that workshop is attached to this post.) One of several workshops on trade at the event, the panelists were united in their concern about the risks of new digital issues being addressed in trade agreements that are closed, opaque, and lobbyist-dominated.

Panelist Michael Geist pointed out that many e-commerce rules had formerly been dealt with in more open fora, and attempting to address then in trade agreements may result in rules that are flawed, weak, and inconsistent in their enforceability. While accepting that there are some digital rules that are relevant to global trade, panelist Meghan Sali from OpenMedia noted that “The devil is in the details, and the details are kept secret”, suggesting that a more open process would better reflect users’ priorities. Marília Maciel from DiploFoundation stressed the need to separate out the issues that are best dealt with in a trade context, from those that may be better dealt with by other, more specialist global institutions. Burcu Kilic from Public Citizen agreed, pointing out how viewing digital issues through a trade lens results in them being treated in a way that doesn’t benefit users and developing countries. The final panelist, Maryant Fernández from European Digital Rights (EDRi), gave an example of the topic of data flows and data localization. Trade negotiators tend to see data protection rules as a trade restriction, rather than as legitimate measures to preserve the human right to privacy.

This discussion has a direct bearing on the future of NAFTA, presenting the U.S. with a choice either to focus its reforms on traditional trade issues that would directly impact the manufacturing sector, or to load the deal up with a grab bag of rules on unrelated digital policy issues, which is the approach that led to the implosion of the TPP. Although the administration has since downplayed the significance of the leaked draft letter, it does give us an insight into a least some of the thinking that is going into the NAFTA renegotiation process. Since President Trump has been so scathing of the TPP and abandoned the deal with such fanfare, it would be disappointing if the new NAFTA were little more than a regurgitation of that failed agreement.

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Consumers Press the USTR Nominee on Trade Transparency

Even before U.S. Trade Representative (USTR) nominee Robert Lighthizer takes office, he’s already feeling the heat from Congress and from public interest representatives about improving transparency and public access to trade negotiations.

In written answers given as part of Lighthizer’s confirmation hearing last week, Senator Ron Wyden asked him, “What specific steps will you take to improve transparency and consultations with the public?”. Lighthizer’s reply (which he repeated in similar form in response to similar questions from other Senators) was as follows:

If confirmed, I will ensure that USTR follows the TPA [Trade Promotion Authority, aka. Fast Track] requirements related to transparency in any potential trade agreement negotiation. I will also look forward to discussing with you ways to ensure that USTR fully understands and takes into account the views of a broad cross-section of stakeholders, including labor, environmental organizations, and public health groups, during the course of any trade negotiation. My view is that we can do more in this area to ensure that as we formulate and execute our trade policy, we receive fulsome input and have a broad and vigorous dialogue with the full range of stakeholders in our country.

Senator Maria Cantwell sought to drill down into more specifics, by having Lighthizer address the skewed Trade Advisory Committees that currently advise the USTR. In response to her question:

Do you agree that it is problematic for a select group of primarily corporate elites to have special access to shape US trade proposals that are not generally available to American workers and those impacted by our flawed trade deals?

Lighthizer replied:

It is important that USTR’s Trade Advisory Committees represent all types of stakeholders to ensure that USTR benefits fully from a diverse set of viewpoints in considering the positions it takes in negotiations. If confirmed, I will work to ensure that USTR’s Trade Advisory Committees are appropriately constituted in order to achieve this goal.

Cantwell also invited Lighthizer to commit to replacing the advisory system with a new process that invites the American public to help shape U.S. proposals for trade agreements and give input on negotiated texts, as well as to having all proposals and negotiated texts published online in a timely fashion so the workers and the broader public that will be impacted by these agreements have a full understanding of what is being negotiated.

He declined to do so, going only so far as to say that he would look forward to discussing “additional means for ensuring public input into U.S. trade negotiations”, as well as “ways to ensure that USTR fully understands and takes into account the views of all stakeholders during the course of a trade negotiation”.

This rather vague commitment certainly doesn’t close the door on the administration adopting the kind of reforms that EFF has demanded, but it also suggests that we will have to continue fighting hard for them to avoid yet another cop-out by the agency.

Trans-Atlantic Consumer Groups Speak Out

Thankfully, we’re not alone in that fight. EFF has just returned from the annual public forum of the Trans-Atlantic Consumer Dialogue (TACD), a forum of U.S. and European consumer groups, of which we are a member. This diverse group released a Positive Consumer Agenda for trade which includes the following demands:

Any regulatory cooperation dialogue and trade negotiation must be transparent. Agendas of the meetings and rounds must be made publicly available well in advance as well as negotiating documents and minutes of meetings and rounds. For trade negotiations, negotiations should not begin until all parties agree to publish their textual proposals as well as consolidated negotiating texts after each round on publicly available websites. …

US positions on trade deals can be formulated the way other US federal regulations are: through an on-the-record public process established under the Administrative Procedure Act to formulate positions, obtain comments on draft texts throughout negotiations, and seek comments on proposed final texts. In the European Union, the Commission should open a public consultation when drafting negotiating mandates to mirror the legislative process.

Trade Isn’t the Right Tool For Every Internet Problem

A third front in our battle to reform the USTR’s closed and opaque trade negotiation practices is in a submission to the U.S. International Trade Commission (ITC) that we submitted this week. The ITC was seeking public submissions in an enquiry on digital trade, to gather input into a report that it is writing to advise the USTR on the topic.

The submission reiterates our demands that the USTR publish its proposals, publish draft texts, have an independent transparency officer, open up proposals to notice and comments and a public hearing process, and open up Trade Advisory Committees to be more inclusive. But it also points out that the USTR shouldn’t consider trade negotiations as the right tool to regulate every aspect of the Internet that touches on trade:

Whereas the Commission aims to describe regulatory and policy measures currently in force in important markets abroad that may significantly impede digital trade, our bottom line is that not all such measures that impede digital trade are necessarily protectionist. … [They may] also have important non-trade justifications that serve broader social and economic needs such as freedom of expression and access to information, consumer safety and privacy, and preservation of the stability and security of Internet networks.

When the only tool you have is a hammer, every problem looks like a nail—and the USTR has been hammering away like mad at topics as diverse as net neutrality, domain names, encryption standards, and intermediary liability. But because there are many other dimensions of these issues besides the trade dimension, trade negotiations aren’t necessarily the best venue to address them; and certainly not while those negotiations remain as closed and opaque as they are at present.

As the renegotiation of NAFTA is around the corner, the need for USTR to reform its outdated practices is becoming increasingly urgent. With Congress, consumer groups, and international trade experts all demanding similar reforms from the next Trade Representative, we certainly hope that Robert Lighthizer is feeling the heat, and that he will rise to the challenge once he takes office.

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Law Professors Address RCEP Negotiators on Copyright

Next week the latest round of secret negotiations of the Regional Comprehensive Economic Partnership (RCEP) kicks off in Kobe, Japan. Once the shy younger sibling of the Trans-Pacific Partnership (TPP), the recent death of the TPP has thrust RCEP further into the spotlight, and raised the stakes both for its sixteen prospective parties, and for lobbyists with designs to stamp their own mark on the text’s intellectual property and e-commerce chapters.

Our last analysis of RCEP pointed out some of the ways in which the then-current leaked text represented an improvement on the TPP, but how other parts of it—including those on copyright enforcement—repeated its mistakes and failed to seize opportunities for improvement. This week, over 60 copyright scholars released an open letter that sets out their views of what negotiators ought to do in order to address these problems. The letter begins:

We are deeply concerned about the copyright protection standards proposed for the RCEP IP Chapter. They may cause unintended effects of stifling creativity, free speech, and economic growth. We urge that the new rounds of RCEP negotiations reconsider those standards by applying the following three principles:

  1. Integrate the public interest as a core value for copyright negotiations.
  2. Increase transparency of negotiations for the public interest.
  3. Institute changes in copyright provisions for the public interest.

Guided by these three principles, RCEP negotiations would produce the largest mega-regional free trade agreement to procedurally and substantially protect the public interest in copyrighted works. The RCEP copyright provisions, therefore, stand to benefit nearly 50% of the world’s population, who live in the sixteen RCEP participating countries.

While EFF’s position is that copyright doesn’t belong in trade agreements at all, we have acknowledged that copyright lobbyists aren’t going to stop seeking their inclusion in such agreements any time soon. We have also recommended some improvements to the processes of trade negotiation that would make them more transparent and inclusive, and therefore more democratically legitimate. Although our recommendations were directed to the U.S. Trade Representative (which is not a party to the RCEP negotiations), the law professors’ letter echoes the spirit of some of them. In particular, the professors argue:

Release negotiation information: The RCEP should take affirmative measures to make all negotiating texts and other relevant documents publicly available as soon as possible. For this purpose, the RCEP should learn from the example of the World Intellectual Property Organization (WIPO), which carried out transparency measures that facilitated the successful conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. WIPO publicly released draft negotiating documents promptly. It also publicly webcast the negotiating process.

Strengthen stakeholder engagement: When considering critical issues, the RCEP should open up channels through which the relevant stakeholders can submit their opinions. Stakeholders may include not only business groups but also civil society representatives. When necessary, the RCEP should organize public hearing meetings where various stakeholders can discuss the merits and demerits of draft proposals and negotiators can explain decision-making processes.

Beyond these procedural suggestions, the law professors also put forward some substantive ideas about how copyright could be dealt with in a more balanced way. Although stopping short of proposing a mandatory “fair use” provision, they do propose that parties should form “a committee consisting of negotiators and copyright experts should be set up to identify myriad public interests in using copyrighted works in RCEP participating countries,” and should “endeavor to craft provisions to protect the public interest primarily by carving out limitations and exceptions to copyright and setting up a safe harbor system for Internet service providers.”

Given the closed-door nature of the negotiations, it is difficult to discern what impact these demands will have. One of the few signs of any improvement came with Japan’s announcement yesterday that it would be holding a stakeholder engagement event during this round of negotiations—but, as the announcement came only three days in advance of the event, it came too late for most international delegates to arrange to be present. The RCEP negotiators evidently haven’t taken the failure of the TPP to heart, or they would be doing more to ensure that their negotiations are inclusive, transparent, and strike a fair balance between the interests of copyright owners and those of the public.


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Leaked TISA Safe Harbor Proposal: the Right Idea in the Wrong Place

A new leak of the Electronic Commerce chapter [PDF] of the Trade in Services Agreement from the November 2016 negotiating round has exposed a brand new U.S. government proposal on Internet intermediary safe harbors. The proposal, which the European Union is shown as opposing, is a rough analog to 47 U.S.C.§ 230, enacted as part of the Communications Decency Act (known simply as “Section 230“, or sometimes as CDA 230).

Section 230 is one of the most important provisions of U.S. law for online platforms that host users’ speech. It provides a shield protecting online intermediaries against a range of laws that would otherwise that would otherwise hold them responsible for what their users say or do online. Although there are exceptions to this law—for example, the immunity does not protect platforms’ hosting of user-generated material that infringes copyright (which is governed by the weaker DMCA safe harbor)—Section 230 remains an invaluable catalyst to innovation and free expression online, and a major reason for the success of U.S. Internet platforms around the world. 

The existence of a U.S. proposal for TISA based on Section 230 had been rumored for some months, and when asked directly about it last October the USTR did confirm its existence to EFF. However, we had not seen a copy of the text until now. Like Section 230, the provision excludes intellectual property rights and criminal law enforcement, but otherwise provides:

  1. [N]o Party may adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.
  2. No Party shall impose liability on a supplier or user of an interactive computer service on account of:
  1. any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material that is accessible or available through its supply or use of the interactive computer services and that the supplier or user consideres [sic] to be harmful or objectionable; or
  2. any action taken to enable or make available the technical means that enable an information content provider or other persons to restrict access to material that it considers to be harmful or objectionable.

Although we usually talk about Section 230 in the context of the protection that it provides platforms for hosting or republishing the speech of users (paragraph 2 above), it also does the reverse—protecting them from liability for removing users’ speech from their platforms, provided that they do so in good faith (paragraph 3 above). This so-called “Good Samaritan” provision affirms that online platforms are entitled to choose what user content they do or don’t wish to host, and allows technology providers to provide tools for platform owners to use in exercising that choice. Without this legal clarity, Internet intermediaries could face legal consequences for choosing not to host or provide access to content that they find objectionable on their platforms or networks.

EFF is a supporter of the Section 230 safe harbor, and we would also support its extension to the other TISA countries that presently lack similar protections for Internet intermediaries in their law. Just to give two examples from countries that are amongst TISA’s negotiating parties, Turkey frequently threatens Internet platforms such as Facebook and Twitter with liability for the speech of their users, and in Estonia an online news publication was held liable in defamation for anonymous comments submitted by users. Such claims against Internet platforms would fall flat in the United States, thanks to the Section 230 safe harbor.

But it’s for this reason, probably, that Europe is opposing the TISA proposal. Like the United States, Europe goes into trade negotiations with the express objective of maintaining its existing laws, and Europe’s equivalent to CDA 230, its E-Commerce Directive, simply doesn’t measure up to this U.S. proposal. Although Europe is also considering adopting a Good Samaritan provision to clarify that providers will not become liable for user content by reason of steps they take to filter out and eradicate illegal content on their platforms, there is no similar proposal to expand safe harbor protection for user content that intermediaries leave online. Indeed, if anything, Europe is planning to lump intermediaries with additional responsibility for user content.

It’s likely, then, that this proposal is either dead in the water, or else that it will be considerably watered down before TISA is finalised, if ever. And there in a nutshell lies the reason why EFF, despite our support for Section 230, can’t support the inclusion of this provision in a closed, secret trade agreement such as TISA. It is by pure good fortune that we have been able to read this first draft of the USTR’s proposal thanks to the document being leaked. But unless and until it is leaked again, we will remain blind to any changes that may be wrought in the back and forth of TISA’s closed-door negotiations, which might well end up twisting the proposal beyond recognition.

EFF commends the USTR for the intent of its proposal. We too have promoted the extension of Section 230-style safe harbor protection around the world, through our Manila Principles on Intermediary Liability. But until trade agreements can be made more open and inclusive, they are the wrong tool to promote such an important policy for the global Internet.

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The Perils of Secrecy in Copyright Rulemaking

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

When a big corporation seeks special-interest laws to boost its profits at the expense of the broader public interest, it naturally gravitates towards the most secretive lawmaking venue possible. This is why Hollywood’s copyright maximalists have invested so much in international trade agreements, where negotiations over copyright rules take place behind closed doors, and negotiators take the advice of secretive, industry-dominated advisory panels.

Last year, that tactic backfired—big time. After five wasted years of taxpayer-funded flights around the world, the Trans-Pacific Partnership (TPP) dramatically imploded, frustrating big media’s plans to extend the term of copyright protection across the Pacific rim, to set broken U.S. rules on DRM in concrete, and to turn some cases of non-commercial copyright infringements into international crimes.

But the death of the TPP doesn’t mean the end of free trade agreements. In one form or another, these agreements will continue, and so will the lobbying efforts of copyright maximalists. The only way to break the cycle is to make dramatic changes to the way in which trade agreements are negotiated, to make them a less attractive venue for rent seeking. The way to do this is to make trade agreements more open, democratic, and transparent.

To this end, EFF held a high-level roundtable on trade transparency in Washington, D.C. last Friday, inviting not only staff of the U.S. Trade Representative (USTR), but also representatives of other agencies with expertise in trade, along with interested Congressional offices, a few key Internet industry representatives, and colleagues from two civil society networks, the Open Digital Trade Network that EFF formed last year, and the coalition.

As we explained in a background document [PDF] that we tabled at the meeting:

Trade agreements are disconnected from democratic oversight, mired in a swamp of influence from lobbyists and special interests, and harmful to the interests of American workers and entrepreneurs. Agreements are negotiated with levels of confidentiality that go far beyond those necessary for effective deal-making.

But the roundtable wasn’t just a gripe session. We came into the meeting with some specific proposals for meaningful reforms that would make trade negotiations more transparent and inclusive; for example:

the regular release of U.S. text proposals and consolidated negotiation texts, the development of U.S. proposals through an open, notice-and-comment process, and (if they are to be retained at all) the relaxation of confidentiality obligations applicable to Trade Advisory Committees.

We left the meeting with strong support around the table for some of these ideas, and with a number of additional ideas from the assembled experts. While we also received some pushback, which amounts to an argument for business as usual, the idea that Americans will accept any future trade agreements that are negotiated in the same closed, captured fashion as the TPP is delusional thinking. As we explained:

the world in which such agreements are made has changed since America’s first trade agreements were negotiated in the 1930s under the Reciprocal Tariff Act. Today, transparency and broad public consultation are expected, and fierce public opposition can be expected to follow any trade agreement that does not follow these practices. This is especially so in relation to Internet-related rules, where prescriptions nominally about commerce and trade can affect citizens’ free speech and other fundamental individual rights.

As we also explained, copyright and other so-called intellectual property rules are the archetypal example of such rules that affect free speech and other human rights, and can’t be treated as if they only had impacts on trade. Hollywood has pushed the use of trade agreements to their breaking point—and sure enough, they have broken, leaving the new administration to pick up the pieces.

It’s too early to say whether trade negotiations will become more transparent and inclusive under the Trump administration, but EFF and our partners have made as best a case for it as we can. The USTR now has to decide what is more important—continuing to secretly write trade deals that include Hollywood’s maximalist copyright rules, or negotiating agreements with a diversity of stakeholder views that may be less favorable to Hollywood, but have a better chance of being accepted as legitimate.

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