USTR Insults The Intelligence Of Legal Scholars After They Challenge Him On Lack Of TPP Transparency

from the a-complete-travesty dept

Wed, May 9th 2012 2:44pm — Mike Masnick

As another round of negotiations over the TPP agreement is ongoing in Dallas, a group of legal scholars have sent an open letter to the USTR, Ron Kirk, decrying the ridiculous lack of transparency that has been driven in large part by the policies of the USTR, which seem almost entirely focused on avoiding hearing any outside opinions at all. Kirk shot back a quick response that isn't just dismissive, but downright insulting to the intelligence of these distinguished scholars. But, first, let's discuss the letter itself:

We are particularly and specifically concerned that by the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.

What's really incredible is that the USTR should know better after all the outcry over ACTA, but that seems to have only strengthened the USTR's resolve to be about as opaque as possible on the TPP negotiations. The scholars point out that in a post-SOPA world, that doesn't play. They specifically call out the likely collapse of ACTA in Europe -- due in large part to the secretive process there (which was just slightly less secretive). It's amazing that the USTR is so short-sighted that it doesn't realize the backlash it's going to create:

At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.

The scholars have a simple suggestion in response -- one that would not be difficult to do, nor would it be controversial (contrary to Kirk's statements on this matter in the past). Publicly release the US's positions on things. They don't have to release the other details of the negotiations. Just what the US's position is.

Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. While we are sympathetic to the need for some confidentiality in the negotiation of international agreements, just as there is in domestic law making, there can be no national security justification, much less one sounding in good governance concerns, for preventing the United States public from seeing its own government’s proposals to restrain its own domestic legislation.

Indeed, there are many examples where the US engages in precisely the kind of information sharing about its proposals for international law making we request here. If, for example, this negotiation was happening in the World Intellectual Property Organization or World Trade Organization, all country proposals would be released to the public as a formal part of the negotiation process. This is, of course, also the process followed in a Congressional Committee mark up of a bill. And just last month USTR released to the public a 2012 revised model bilateral investment treaty (BIT), which one must assume reflects its positions in the TPP negotiation on the same titled chapter.

Of course, the legal scholars also make it clear that they know what is going on. The TPP is not about "trade." It's about exporting laws and expanding our own laws -- and doing so because of a few special interests, in this case Hollywood and the big drug companies:

The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. We would never create US law or regulation through such a biased and closed process.

Kirk sent back a quick email to the organizer of the letter, Sean Flynn, in which he claims that he'll look at the full letter in more detail, but finds some of the suggestions in the letter "offensive." But Kirk is the one who's being offensive here, playing word games and insulting the intelligence of these respected legal scholars:

Mr. Flynn – I look forward to reviewing your letter, and will provide a more detailed response later. In the interim, you may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any FTA previously, including, the proposed disciplines on intellectual property.

I do not quarrel with any assertions that our work may not reflect the exact wishes of your colleagues, but, I am strongly offended by the assertion that our process has been non-transparent and lacked public participation. USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds.

I trust that after you have received my more formal response you will make every effort to educate your colleagues as to the extraordinary efforts our staff has engaged in relative to drafting our proposed texts for the TPP.

Okay, first the claim that that they're "active" on outreach is Kirk playing word games. First of all, note that he only refers to "FTA" (free trade agreements). That's being accurate, but disingenuous. The main problem -- as clearly expressed in the letter -- is that the IP issues that have these scholars concerned are not "free trade" issues, but rather a way to spread IP legislation globally. In other words, it's an IP trade agreement, hidden inside a FTA. And, again as the letter makes clear, IP trade agreements are normally much, much more open. Kirk knows this. He's just being obnoxiously disingenuous.

Next, if he's offended, too bad, because he's the one being offensive here. The "400 consultations with Congress" is misleading in the extreme. First of all, that's entirely different than consulting the public. Second, TPP covers much more than the IP sections that have these scholars concerned, and it's never explained how many of these consultations were on IP. Third, how many of those "consultations" were done in public where the public knows what's being talked about.

As for the claim that stakeholders have been invited to all of the negotiating rounds, he totally ignores that the USTR has made it nearly impossible for public interest stakeholders to be heard -- getting them kicked out of hotels, or forcing them to hold meetings either while negotiations were going on or far away from the negotiations, meaning that negotiators won't take part. He's paying lip service (barely) to the public interest.

On top of that, he completely ignores the fact that special interest groups -- mainly Hollywood and big Pharma -- have access to the document, while public interest groups have not been told what the US's position is at all.

Really, the proof of the lack of transparency is simple and is easy to highlight, despite Kirk's disingenuous and insulting response: how many people in the public, or even working for a public interest organization, know what the US is pushing for in the TPP's IP section? The answer is zero. That's not transparent, no matter how much Kirk wants to tap dance around the issue.

Ron Kirk needs to learn that his job is to represent the citizens of the United States, not the special interests. He clearly thinks that as long as he keeps telling people he's being transparent he'll be able to get away with this incredibly secret government handout to Hollywood and the big drug companies. He needs to learn that's not the way this works.

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Filed Under: acta, fta, ron kirk, sopa, tpp, transparency, ustr

43 Comments

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Baldaur Regis (profile), 9 May 2012 @ 2:58pm

It's fascinating...
...to watch a process in realtime that will result in a footnote in some future publication:

...the overreaching tactics employed by 'intellectual property' advocates reached their high tide mark in the early 21st century...
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fogbugzd (profile), 9 May 2012 @ 3:01pm

With the circlejerk mentality of the USTR office and the industry insiders, their reasoning was probably something like this:

"ACTA ran into trouble. Therefore the process must have been too open. We need to do a better job of locking down the TPP negotiations if we want it to go through unnoticed."
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AC Cobra, 9 May 2012 @ 3:17pm

Who made Ron Kirk king?
US Trade Representative is not an elected position. Who was responsible for appointing this goon?
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Anonymous Coward, 9 May 2012 @ 3:18pm

Doesn't this guy have an intern or something to look over his letters before he sends them? I guess making him sound like a decent human being would be too much to ask, but you'd think someone would've caught those extra commas.
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Theoden, 9 May 2012 @ 3:20pm

He was always a tool
...when he was Mayor of Dallas. Seems like the only politicos coming out of the Lone Sorry State are all asshats... Perry, Lamar Smith, Kirk, Bush, etc. ad nauseum.
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:Lobo Santo (profile), 9 May 2012 @ 3:23pm

Re: .|.
That intern would likely have been 'fired' for having been too competent (thereby making the other interns look bad).
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Cowardly Anonymous, 9 May 2012 @ 3:43pm

Re:
Her edits offended him.

To Ron Kirk, honor carries the same meaning it did in medieval times. If you say something he doesn't like, he'll hide behind the excuse that you have insulted him.

Anyone who claims offense from honest criticism should receive no respect from anyone.
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Anonymous Coward, 9 May 2012 @ 3:56pm

Ron Kirk needs to learn that his job is to represent the citizens of the United States, not the special interests.

Nah, as long as he keeps obediently servicing those special interests, they'll keep the rewards coming. There's just no reason for him to pay the slightest attention to the citizens of the United States.
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please, 9 May 2012 @ 3:58pm

thats not offensive. this is offensive:

kirk your full of #### and so is your transparancy (or lack thereof).
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gorehound (profile), 9 May 2012 @ 4:02pm

Re: It's fascinating...
+1
Followed by:
Example after example which clearly shows an Abuse of Power by the US Government
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Rekrul, 9 May 2012 @ 4:28pm

Every time I read about someone respected (legal scholars, citizen groups, etc) sending letters like this to a government agency, urging them to change their position on something, I get the mental image of a child running alongside a giant tank, asking it to stop destroying his town.
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Anonymous Coward, 9 May 2012 @ 4:31pm

Kirk and his office are negotiating these various trade agreements under congressional guidance (e.g., P.L. 107-210). Kirk and his office are just doing the job Congress instructed them to do.

If these academics really do have a bone to pick, then they should take their concerns to Congress...the body that giveth and taketh away negotiating authority for FTAs.
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Anonymous Coward, 9 May 2012 @ 4:36pm

The bullshit never ends
"Dozens of major trade associations urged President Obama on Tuesday to fight for tough intellectual property protections in negotiations over an Asian-Pacific trade agreement.

The letter to the president was signed by many of the same groups that lobbied for controversial anti-piracy legislation earlier this year, including the Chamber of Commerce, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).

------------

The industry groups urged the administration to make sure that the final agreement includes "comprehensive and high-standards for the protection and enforcement of intellectual property (IP) rights � including patents, trademarks, copyrights and trade secrets."

The letter asked Obama to fight any attempts to weaken existing intellectual property protections.

The groups argued that tough intellectual property protections drive economic growth and create jobs.

------------

"The strong IP protections proposed by the U.S. government in the TPP negotiations do not represent, as some suggest, a threat to public health, the development and expansion of the Internet or rights of freedom of speech, but rather a much-needed response to increasingly sophisticated threats to IP protection throughout the world," the industry groups wrote in their letter."

http://thehill.com/blogs/hillicon-valley/technology/226215-overnight-tech-industry-urges -obama-to-negotiate-tough-intellectual-property-protections
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Michael, 9 May 2012 @ 4:37pm

Regardless of whatever they push forth from TPP, nobody -- not a single citizen -- has an obligation to go along with any nonsensical law or regulation as imposed by private entities which crafted this piece of trash legislation WITHOUT PUBLIC APPROVAL OR OVERSIGHT.

Ron Kirk certainly does NOT represent the will of the majority.
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Anonymous Coward, 9 May 2012 @ 4:39pm

Utmost professionalism!
Its really remarkable how he handled this so professionally. Really exemplifies what is expected of a public official.
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Anonymous Coward, 9 May 2012 @ 4:43pm

Re: The bullshit never ends
BTW, since when were the CoC, MPAA, and RIAA EVER considered a part of the "tech industry" as the link suggests?
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Anonymous Coward, 9 May 2012 @ 4:47pm

I see the problem... They didn't add a large bag with $$$ attached to the letter. Perhaps Ron Kirk may have been more accepting of the letter if they did.
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AC Cobra, 9 May 2012 @ 4:50pm

What will it cost
I realize its grossly premature, since the terms are discussed in secret, but is anyone consider what it's going to cost to comply with this treaty?
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Anonymous Monkey (profile), 9 May 2012 @ 4:50pm

Re: Utmost professionalism!
I'm not sure if you were just being sarcastic or if I should call troll....
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TDR, 9 May 2012 @ 5:10pm

It's too bad James Kirk isn't here to put Ron Kirk in line and stop this crap. I have a feeling the good captain would make sure TPP would collapse faster than a Bird of Prey hit by a volley of photon torpedoes, and he wouldn't stop until Bones tells him, "It's dead, Jim."
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Anonymous 314159, 9 May 2012 @ 6:18pm

Re: What will it cost
Yes: It will not cost these industries a dime because they will shift the costs to other industries.
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Anonymous Coward, 9 May 2012 @ 6:35pm

Re: Re: Utmost professionalism!
I doubt it's trolling. For me that statement is dripping with irony
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Anonymous Coward, 9 May 2012 @ 6:38pm

Re:
Maybe the scholars got their education at Kahn academy. KAAAHHNNN!!!!!
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Anonymous Coward, 9 May 2012 @ 6:40pm

Re: Who made Ron Kirk king?
B.H.O.
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Anonymous Coward, 9 May 2012 @ 6:45pm

Re: It's fascinating...
IP == 'imaginary property'. The more people who become aware of this, the better.
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Anonymous Coward, 9 May 2012 @ 6:46pm

Re: It's fascinating...
IP == 'imaginary property'. The more people who become aware of this, the better.
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Anonymous Coward, 9 May 2012 @ 6:46pm

Re:
""under congressional guidance"
Yeah right. That's why the USTR tried to negotiate ACTA and TPP in secret without keeping congress abreast of what was being proposed or agreed to.
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TtfnJohn (profile), 9 May 2012 @ 6:58pm

Re: The bullshit never ends
The only tech group cited in the blog was the Electronic Frontier Foundation who, the blog says, denounced TPP as over reaching.

Rather the groups cited are the same ones who supported ACTA/PIPA and who support ACTA.

Put the right kind of feed into one end of a bull and never ending bullshit does, indeed, come out the other. Even in The Hill's blog about technology.
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AC Cobra, 9 May 2012 @ 7:16pm

Re: Re: Who made Ron Kirk king?
B.H.O. = Barack Hussein Obama I take it. But did Obama appoint him directly or was it through some sub agency or committee?
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AC Cobra, 9 May 2012 @ 7:29pm

IATSE support?
Notably, I have not seen anything in the way of direct IATSE support or endorsement of TPP. With SOPA and PIPA they fell lockstep into line with the MPAA, becoming basically just another propaganda arm for them, but very little talk about TPP. Could it be IATSE's leadership has opposition to the other provisions in TPP? After all there is a lot more in there besides IP enforcement.

The only reference I find to TPP in IATSE's website is a transcript of remarks given by Miriam Shapiro, Deputy USTR. She was allowed to address the IATSE Executive board at the semi-annual meeting in Feburary, and promoted TPP's IP provisions among other things. Something about helping legacy industries exploit new markets. But although they let her speak, it does not look like IATSE has specifically endorsed TPP yet. If anyone has any other information about this, please share.
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Anonymous Coward, 9 May 2012 @ 7:35pm

Re: Re:
Uh...no. The positions being advanced in negotiations by the USTR are precisely those set forth by Congress. See, for example, Section 2102 to P.L. 107-210.

If the academics believe those objectives to be wrong, they should be sending letters to Congress, and not Mr. Kirk.

BTW, why are foreign academics weighing in on US trade objectives? It seems to me they should be writing letters to their respective national governments, and not ours.
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Mike Masnick (profile), 9 May 2012 @ 8:36pm

Re:
Kirk and his office are negotiating these various trade agreements under congressional guidance (e.g., P.L. 107-210). Kirk and his office are just doing the job Congress instructed them to do.

This is totally wrong. Actually, if you look at the details, you realize that Kirk has NO authority from Congress to negotiate either ACTA or TPP, since they pertain to issues *outside* the authority of the exec branch. This is why Kirk recently asked Congress to give him back the authority his office has not had since 2007... Because he knows he's way out of line.

If these academics really do have a bone to pick, then they should take their concerns to Congress...the body that giveth and taketh away negotiating authority for FTAs.

Stay tuned...

Either way, your point has no bearing on this issue. The letter did not bring up his authority (even though I believe he does not have it). It brought up the obnoxious way he is being totally opaque in the negotiations, shutting out the American public.

That has nothing to do with his "Congressional guidance." Why you would try to distract from the issue raised in the letter, I cannot fathom, other than that you know that he's abusing his power for the sake of "friends".
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humilis scholasticus, 9 May 2012 @ 8:41pm

Re: Re: Re:
If the scholars of Galatia, of Hispania and Mesopotania, foresee issues with the edicts of the Imperial Senate, would they not seek redress from Rome herself and not their provincial governors? It seems - from the bushes - that the USG is trying on the purple for size, to dictate to the world an alignment with their desires.

/end overblown comment
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Pixelation, 9 May 2012 @ 10:37pm

"We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP�s intellectual property chapter. "

There in lies the rub. The Public won't blindly follow this jack-a nape, Ron Kirk, and therefore must be ignored.

Too bad we can't help him ride the rail...
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Anonymous Coward, 9 May 2012 @ 11:26pm

Kirk...
What a total fucking twat. Seriously.
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Tor (profile), 9 May 2012 @ 11:56pm

Re:
Well, I don't think they are that na�ve. They might not expect that the letter in itself will have any effect. The contrast between the contents of the letter and the nonresponsive and dismissive attitude of the government however could serve to create a public opinion against secrecy. So in essence they set something that's bigger than just the letter in motion.
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Anonymous Coward, 10 May 2012 @ 3:20am

i seem to remember him playing the same lying game with senator Wyden. perhaps a good dose of 'you're fired' wouldn't come amiss?
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Anonymous Coward, 10 May 2012 @ 6:16am

Re: Re: Re: Who made Ron Kirk king?
USTR is part of the State Department, so USTR reports to Hillary, who reports to B.H.O.

But it is generally seen as a "High Profile" assignment so H.C. and B.H.O. would have made the choice together (normal circumstances), but like most levels now it is uncertian how the process worked with B.H.O. and H.C.
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Jonathan, 10 May 2012 @ 10:15am

Nope, Ron Kirk represents the United States, which consists entirely of legal fictions and police. Everything and anything else is a resource to be exploited, not a citizen to be respected.
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Anonymous Coward, 10 May 2012 @ 1:18pm

Re:
Chances are a Bird of Prey would be able to withstand a volley of photon torpedoes, assuming they weren't surprised and had their defenses offline. Also, why would a forensic anthropologist be pronouncing anyone dead... =P
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Jeffrey Nonken (profile), 10 May 2012 @ 2:05pm

I'm from the government, and I'm here to help you.
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don, 11 May 2012 @ 11:09am

This guy is an insult to democracy and transparency. If he was just another congressman, the people would've voted him out of office when the next election comes around.
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Anonymous Coward, 17 May 2012 @ 3:23pm

Nero fiddles around with the millions of dollars the *IAA pays him off with, as we Techdirt readers reply in horror (and try to get someone to do something about it), while the sheeple use AOL, watch Disney Channel, and turn into tubs of hydrogenated fat with extra salt on their couches at taxpayer expense. Sheesh.
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