No subject

continued public pressure, the USTR’s transparency theater rehearsals
of internal review have concluded that showing a selective few
Washington insiders the Internet provisions under non-disclosure
agreements would satisfy the demands of openness, transparency, and
oversight.

Sole executive agreements are not meant to be unaccountable. There are
in fact systems in place to stop our executive (and private interests)
from having untrammeled power to change the law. We've outlined four
ways that Congress, or an Administration sincere about transparency,
could put their house in order.

Reform trade advisory committees for more diverse representation

Input to U.S. trade negotiators on IP needs to reflect the views of
all stakeholders in the U.S. knowledge economy to counterbalance the
disproportionate influence of lobbyists for incumbent industries. This
requires reform of the current trade advisory committee system to
include civil society and technology industry participation in the
tier 3 industry trade advisory committee on intellectual property,
ITAC-15, or the creation of new equivalent level advisory committees.
Public interest values such as health and consumer protection should
play an important role in the new bipartisan trade policy for the
knowledge economy.

Strengthen congressional oversight and negotiating objectives

Congressional oversight of foreign trade negotiations, especially
agreements affecting areas of non-trade domestic policy, should
require the USTR to comply with negotiating objectives that reflect
the interests of all stakeholders in the U.S. economy. In addition to
the labor and environmental standards articulated in proposed bills
like the TRADE Act (H.R. 3012), IP enforcement provisions in
agreements must not undermine internationally agreed upon commitments
on public health, and flexibilities that protect citizens’ access to
knowledge, nor obstruct IP exceptions and limitations appropriate for
the digital age. In addition, the Congressional Oversight Group, a
statutory supervisory group comprising members of the House and the
Senate designed to liaise with the Trade Representative could conduct
a thorough review and certify that the new negotiating objectives have
been met before a trade agreement could be brought for a congressional
vote.

Institutionalize transparency guidelines for trade negotiations

Given the significance of the substantive provisions being debated to
Internet users, the ACTA process especially should enable citizens to
participate and provide input on the public policy impacts like in
other negotiations, where it is customary practice to make documents
available. The Office of the USTR incorporating these reforms should
heed the Attorney General's instruction to adopt a presumption in
favor of disclosure to usher in the President's new era of open
Government. At a minimum, negotiating texts, when distributed to all
negotiating countries should be made public.

Implement the State Department’s Circular 175 procedure.

Finally, the State Department plays an important role in checking the
unfettered power of the USTR through its Circular 175 Procedure. These
are the regulations that "ensure the proper exercise of the
treaty-making power." The State Department Foreign Affairs Manual goes
into great detail on the Legal Advisor's criteria for review of
international agreements. There are multiple procedures on hand,
including formal congressional consultation, when there is a serious
question regarding the type of agreement being negotiated. [11 FAM
723.4(b)] It is also made clear that the approval of authorization to
negotiate does not constitute advance approval of the text or
authorization to enter into the agreement. [11 FAM 724.2] The State
Department investigates whether the proposed agreement is "in conflict
with other international agreements or U.S. law" [11 FAM 722(2)] and
whether it follows the "general international practice as to similar
agreements." [11 FAM 723.3(8)] Most significantly for the public's
stake in Internet freedom, the Circular 175 declares that:

   The interest of the public be taken into account and, 
   where in the opinion of the Secretary of State or his or 
   her designee the circumstances permit, the public be 
   given an opportunity to comment. [11 FAM 725.1(6)] 

The Office of the USTR transparency practices must be reformed, and
they have failed at reforming themselves. Now that the leaked
documents confirm everything we feared, it is time to take a look at
how we might hold USTR Ambassador Kirk and Assistant McCoy, the lead
ACTA negotiator, to account for their promises:

   * On diverse representation for advice on trade: "I can 
     assure you that I am committed to working very closely 
     with Congress and all interested stakeholders on all of 
     our trade agreements and negotiations, including ACTA." 
     (Ronald Kirk Confirmation Hearings, March 9, 2009)

   * On congressional oversight and legislative power: "Q: 
     Will the ACTA rewrite U.S. law? A: No. Only the U.S. 
     Congress can change U.S. law." (ACTA Fact Sheet, August 
     4, 2008)

   * On transparency practices: President Obama’s trade 
     officials met with several civil society groups and 
     promised a thorough review of the USTR policies 
     regarding transparency. The review is expected to be 
     completed within a few months. The process will include 
     a meeting within a month to discuss initial specific 
     proposals for openness and transparency. Citizens and 
     NGOs are encouraged to think about the specific areas 
     where openness and transparency can be enhanced and 
     how. (USTR Transparency Review KEI Report, March 19, 
     2009 - as reviewed by Daniel Sepulveda, Assistant USTR 
     for Congressional Affairs)

   * On public participation: The ACTA negotiations 
     "[p]articipants also discussed the importance of 
     transparency including the availability of 
     opportunities for stakeholders and the public in 
     general to provide meaningful input into the 
     negotiating process." (USTR Press Release, November 6, 
     2009)

Such accountability is available in the U.S. system, but it cannot
come from the Office of the USTR alone. If ACTA is going to regulate
the global Internet, we believe that should warrant the opportunity
for public comment.