Over 130 Representatives Spell Out Their Concerns With TPP In Letter To Ron Kirk

from the where's-the-transparency dept

As the TPP negotiations progress, concern about the almost total lack of transparency (and the USTR's laughable statements to the contrary) is starting to gain significant attention. Most recently, we wrote about Rep. Darrell Issa's request to observe the next round of negotiations, and before that, Senator Ron Wyden's quizzing of Ron Kirk about transparency during a senate hearing. So far, the USTR has managed to brush this off by claiming everybody else in Congress was happy—but, like almost everything the USTR says about TPP, that too is blatantly untrue. Over 130 members of the House of Representatives have now chimed in by signing on to a much longer open letter addressed to USTR Ron Kirk, expressing specific concerns about the TPP process.

The letter strongly asserts Congress' required role in these kinds of negotiations, and then goes on to make several specific requests—while also once again underlining the fact that a few key interest groups are getting special treatment while everyone else is excluded, including Congress.

Under the trade advisory system, representatives from over 600 business interests have such access to both USTR negotiators and the negotiating text. However, American small business, civil society, and other interests who have a direct and long-term interest in the outcome of these negotiations have little meaningful input. In the past, most important U.S. trade agreement texts have not been made available until after they were signed and changes were all but impossible. If Congress and the public are not informed of the exact terms of the agreement until the conclusion of the process, then any opportunity for meaningful input is lost.

Given the laudable priority given to improved government transparency since the first day of the Obama Administration, we are troubled that there may be needless secrecy and over-classification of documents associated with the release of drafts of the pact’s various chapters, or even providing a summary of each of the Administration’s policies that they have proposed to other countries. Press reports and a recent USTR letter indicate that the negotiating parties signed a confidentiality agreement in 2010 imposing heightened secrecy for the process. Accordingly, we ask that you provide us with a copy of the confidentiality agreement and an explanation as to what role USTR or other governments played in crafting it.

Fortunately, there is precedent for greater openness which could bring needed daylight to this process. For example,

• a full draft text of the Free Trade Area of the Americas (FTAA) was released in 2001 during negotiations on that 34-nation pact;
• the World Trade Organization now posts composite negotiating texts on its website, including various texts during the Doha round negotiations; and
• a draft text of the recently-completed Anti-Counterfeiting Trade Agreement (ACTA) was released.

We would urge you to adopt a similar approach in the context of TPP FTA talks, especially now that there are draft texts with bracketed provisions for most chapters of the prospective pact. To the extent that secrecy provisions in the confidentiality agreement preclude the unilateral release of negotiating text, then we would urge you to work with our TPP negotiating partners to obtain their consent to do so and inform us if there are countries that are unwilling to cooperate.

With regard to U.S. proposals, we request that you provide us and the public with summaries of the proposals offered by the U.S. government, so we have a clearer idea of what positions are being advanced on behalf of the U.S. citizenry. Full U.S. proposal texts should be made available not only to Members of Congress, but also to their staffs. To the extent that classification of documents is required, then we would urge you to make them available to all staff with appropriate security clearances.

At this point, it should be clear to Ron Kirk that Congress knows he's trying to quietly negotiate the entirety of TPP behind closed doors, and they aren't happy. Whether or not that will have any impact on the straight-faced claims of "unprecedented transparency" coming from him and his office is less of a sure thing, but it seems like Congress is not prepared to let him get away with that forever.

Filed Under: congress, darrell issa, ron kirk, ron wyden, tpp, transparency, ustr

Darrell Issa Asks To 'Observe' Next Round Of TPP Negotations

from the sweet-home-san-diego dept

Starting next week, the next round of negotiations in the Trans Pacific Partnership (TPP) will be taking place in San Diego. We've been discussing how the USTR has been fine with giving lobbyists like the MPAA full access to the text, which they can read any time via their own computers. However, when it comes to Congress, the access is much more limited. Only elected officials -- not any of their staff members, even if they have the proper "security clearance" -- get to see the text, and they can only see it in a designated room (not on their computers) and they're not allowed to make copies, take notes or bring any staffers to help.

Given that the next round of negotiations is in San Diego, and Rep. Darrell Issa's district covers part of San Diego, he thought he might as well drop by and "observe." He's sent the USTR a letter requesting the ability for him and some staffers to be present and observe the negotiations. It will be interesting to see how the USTR responds.

It has come to my attention that the 13th Round of the Trans-Pacific Partnership (TPP) will take place in San Diego, California from July 2-10, 2012. Given the immense impact that this agreement will have on many areas of the American economy, including intellectual property, I respectfully request that you allow me and certain members of my staff to be present as observers for this round of negotiations.

It is my hope that observing the negotiating process firsthand will help to alleviate some of my concerns about the process through which the agreement is being negotiated.

Filed Under: darrell issa, ron kirk, san diego, tpp, transparency, ustr

Darrell Issa Puts Old Leaked TPP IP Text Up For Discussion

from the why-isn't-ron-kirk-doing-this? dept

We've written a few times now about Rep. Darrell Issa, and the Madison platform his office has set up to allow for crowdsourcing opinion on legislation and other government documents. He originally used it for his OPEN Act, but then later posted the text of ACTA as well. His latest move is to post the leaked text of the US's negotiating position on TPP. This is the same text that leaked out last year. It would be nice if the USTR did something like this itself with the latest text, but that's not how USTR Ron Kirk works. To him "transparency" is only sharing the text with big industry special interests, and declaring it a matter of "national security" if anyone else wants to see it.

Issa recognizes how this is dangerous to a functioning democracy, when our federal government is negotiating deals in back rooms, despite the fact they will have a massive impact on the public:

“At a time when the American people and Internet users all around the world are rightfully wary of any closed-door negotiations that could adversely impact their ability to freely and openly access the Internet, the Obama Administration continues to pursue a secretive, closed-door negotiating process for the Trans Pacific Partnership,” Issa said. “I have decided to publish the intellectual property rights chapter of TPP in Madison so that the public can provide input to those negotiating this agreement, and to push this Administration - and the federal government as a whole - to be open, transparent and inclusive when it comes to international intellectual property rights agreements that have potentially serious consequences for the Internet community.”

Again, it's great that he's added this text to the Madison platform, but it's disappointing that it's still the old leaked version, rather than anything more up to date. The version he posted is now 15 months old, and there have been a bunch of additional negotiations since then. Still, it's good to see others in the federal government trying to encourage discussion on this agreement, even if the USTR continues to hide in secrecy (unless you're a big corporate lobbyist, of course).

Filed Under: crowdsourcing, darrell issa, madison platform, ron kirk, tpp, transparency, ustr

TSA Freaks Out, Gets Longtime Critic Bruce Schneier Kicked Off Of Oversight Hearing

from the congressional-security-theater dept

If you read this site, you probably already know who Bruce Schneier is. We've certainly mentioned the longtime security expert plenty of times. He's been one of the leading vocal critics of "security theater" from the TSA, and therefore a perfectly reasonable counterpoint to the TSA in a hearing by the House Oversight Committee looking into TSA reform. I don't think anyone has thought quite as much about how the TSA could do things better than Bruce Schneier. But, as you can see from the website of the hearing, Schneier was removed from today's hearing: He didn't get sick or have something better to do. Hell, he didn't even miss a flight. Instead, according to Schneier, the TSA itself had him removed from the panel:

On Friday, at the request of the TSA, I was removed from the witness list. The excuse was that I am involved in a lawsuit against the TSA, trying to get them to suspend their full-body scanner program. But it's pretty clear that the TSA is afraid of public testimony on the topic, and especially of being challenged in front of Congress. They want to control the story, and it's easier for them to do that if I'm not sitting next to them pointing out all the holes in their position. Unfortunately, the committee went along with them.

As Tim Lee notes in reporting on this story, the TSA has done similar things in the past, and even been rebuked by Rep. Jason Chaffetz -- and yet it had no problem doing it again. The fact that Schneier is a part of that lawsuit is meaningless and shouldn't stop him from testifying at all. Schneier is a clear thorn in the side of the TSA, and if it's so afraid of having him speak to Congress, that really says a lot about the (lack of) confidence it has in its own arguments. If you can't stand to let a critic speak, it suggests that perhaps your own argument isn't very strong.

Filed Under: bruce schneier, congress, darrell issa, house oversight committee, security theater, tsa

Darrell Issa Posts Text Of 'Unconstitutional' ACTA For Open Feedback; Something USTR Never Did

from the well-look-at-that dept

We've been really impressed (though we can see where it needs improvements in its next version) with the "Madison" platform that Rep. Darrell Issa put up to allow for open feedback and comments concerning the OPEN Act. And it appears he's not done using that platform, either. He's now posted the text of ACTA to the same platform to ask for feedback and comments. It comes with an initial statement showing that he's very concerned about the nature of ACTA (I believe this is the first time Issa has spoken out against ACTA:

Stopping SOPA and PIPA was a historic victory for digital citizens, but ACTA potentially poses a similar threat to the global Internet community. While the agreement’s stated goal of strengthening intellectual property rights is one all should support, it does so by undermining individual privacy rights and by empowering an unaccountable enforcement bureaucracy. And just like SOPA and PIPA, ACTA was crafted without input from citizens and key stakeholders in a secretive, closed-door process.

Worse, ACTA appears to be an unconstitutional power grab started by President George W. Bush and completed by President Barack Obama - despite the White House’s January 14 criticism of legislative solutions that harm the Internet and erode individual rights. The Constitution gives Congress the power to pass intellectual property legislation - like SOPA and PIPA - and gives the Senate the power to ratify treaties. But the Obama Administration maintains that ACTA is not even a treaty, justifying the exclusion of both American citizens and their elected representatives. It is a practice Vice President Joe Biden decried as a U.S. Senator.

Closed doesn’t cut it. We opened up ACTA in Madison so you can sign up, speak out and collaborate to build a better “treaty.”

For all of the USTR's ridiculous claims of unprecedented transparency, why couldn't it have done something like this before ACTA was "finalized"? The answer is that there's no reason at all. Instead, the USTR released the "final" draft of ACTA as a done deal, and any public comment was meaningless, because the document was not open for any additional changes.

Which raises another unfortunate point. The Obama administration has already signed ACTA. Hopefully this means that Congress is actually going to get serious about challenging the administration on its claimed authority to sign and ratify ACTA without Congress' approval. Until now, the only Congressional official who had questioned that right publicly was Senator Wyden -- though, we've heard of a few others who have sent pointed questions to the administration about its claims. With Issa going public and directly questioning this attempt to deny Congress the right to review ACTA -- despite the Executive branch not having the right to make copyright or patent law -- perhaps Congress will finally step up and make it clear that it won't let the President simply ignore Congress' mandate over both IP law and international treaties.

Also, when do we get the Madison'ed version of TPP?

Filed Under: acta, darrell issa, discussion, madison, transparency, treaties, ustr

Elsevier Backs Down, Removes Support For Research Works Act As Elsevier Boycott Grows

from the boycott's-work dept

While it never got as much attention as the GoDaddy boycott, it appears the growing boycott of academics, refusing to publish papers in any Reed Elsevier journal, has caused the company to back down. It has now announced that it no longer supports the Research Works Act. That's the bill -- for which Elsevier was a major backer -- that would bar the government from requiring open and free access (after a period of time) to government-funded research:

While we continue to oppose government mandates in this area, Elsevier is withdrawing support for the Research Work Act itself. We hope this will address some of the concerns expressed and help create a less heated and more productive climate for our ongoing discussions with research funders.

Of course, then it immediately complains about the kinds of mandates that the Act would have disallowed:

Cooperation and collaboration are critical because different kinds of journals in different fields have different economics and models. Inflexible mandates that do not take those differences into account and do not involve the publisher in decision making can undermine the peer-reviewed journals that serve an essential purpose in the research community. Therefore, while withdrawing support for the Research Works Act, we will continue to join with those many other nonprofit and commercial publishers and scholarly societies that oppose repeated efforts to extend mandates through legislation.

That's pretty ridiculous actually. None of these mandates "undermine" these journals in any way -- unless you consider their insane set up (free writing, free editing, full copyright ownership, and subscriptions that cost tens of thousands of dollars) some sort of divine right. The mandates refer to federally funded research, which should be accessible by the public since they paid for the research in the first place. Elsevier doesn't pay for the research. Hell, they don't even pay the researcher for their paper. Or the peer reviewers for their work. So forgive me for not shedding any tears if Elsevier has to learn to adapt to only being able to have the exclusive rights to a paper for a year.

Still, with Elsevier dropping its support, hopefully it means that the original backers of the poorly thought out bill, Reps. Darrel Issa and Carolyn Maloney will drop the bill entirely. Instead, I'd very much like to see much greater support for Rep. Mike Doyle's counter-proposal, which would mandate that federally funded research be made available to the public.

Update: And.... now Issa has said that he won't move forward on the bill and (more importantly) that he now understands the importance of "open access" and how it's "the wave of the future."

Filed Under: academics, boycotts, darrell issa, journals, open access, peter suber, publishing, tim gowers
Companies: elsevier

Rep. Doyle Introduces Bill To Provide Public Access To Publicly Funded Research

from the good-for-him dept

We were quite disappointed last month to see that Rep. Darrell Issa -- who has done lots of excellent work to encourage more open access to government information -- was sponsoring a bill that would close off open access to government funded research. This is an important issue that we've been following for years. Government funded research means that taxpayer money funded that research... and yet because of ridiculous policies by gatekeeper journals, the public has almost no access to that information. The whole situation is ridiculous. The journals get free labor: they never pay for articles (and, in some fields, academics actually have to pay the journal to get published), they never pay for the peer review. So they get free content and free editing. Then, as part of getting published, they require the researchers to give the journal their copyrights and usually bar them from using that same research elsewhere. Finally, they then sell these journal subscriptions at insane rates: often tens of thousands of dollars a year for a subscription. Only large university libraries and research institutions will pay those fees. It's a huge scam and it's why a ton of academics are boycotting publishing giant Elsevier, (infamous for its fake journal division).

The issue in these bills is that there has been a movement to require any research that is federally funded (taxpayer funded) to be placed in an open access repository one year after it was published. The National Institute of Health (NIH) who funds billions in research every year, has had this policy going for a few years (though journals have even tried nasty tricks, like requiring academics to pay them to "deposit" their own papers into these open repositories). This kind of rule makes plenty of sense: we're talking about publicly funded research after all. It should be open to the public. Giving the journals a one-year headstart on publishing the papers seems like more than enough for them to make money (again, from the "free" content they get).

Except... the journals hate this because they want their lifetime-plus monopoly on this information (which, I'll emphasize once again that they do not pay for). So they've been pushing various bills that would outlaw such open access requirements. And, somehow, they got Darrell Issa to back the latest version of this bill.

Thankfully, however, Rep. Mike Doyle -- who has a long history of being really good on copyright issues -- has introduced a counter bill to Issa's bill (pdf) called the Federal Research Public Access Act of 2012. It really is the mirror image of the Issa bill.

the Federal Government funds basic and applied research with the expectation that new ideas and discoveries that result from the research, if shared and effectively disseminated, will advance science and improve the lives and welfare of people of the United States and around the world; and the Internet makes it possible for this information to be promptly available to every scientist, physician, educator, and citizen at home, in school, or in a library.

The bill would require that all federal agencies establish policies that encourage open and free access to federally funded research. One hopes that Rep. Issa will rethink his position on his bill, and recognize that Doyle's bill is much more aligned with Issa's stated goal (and long-shown commitment) to more open access to government information.

Filed Under: darrell issa, mike doyle, nih, open access, public funding, research
Companies: elsevier

Unfortunate: 'Open' Advocate Darrell Issa Sponsoring Bill That Will Close Off Open Access To Gov't Funded Research

from the tragic dept

For years, we've pointed out the ridiculousness of various attempts to lock up federally funded research. If anything, it would seem that research that is federally funded should be required to be open to the public. After all, the public paid for it. And, in fact, a few years back, the National Institutes of Health (NIH) instituted a program that said that any research funded by NIH had to be offered in an open access manner by 1 year after its publication date. The "issue" here is that the big academic journals have the greatest scam in the world running: they don't have to pay writers (and, in some fields, the writers actually have to pay them) who submit their papers. They don't have to pay other academics to do peer review, as that's done for free. So all of their content isn't paid for. But... they do require that the writers hand over their copyright, and then lock it up in journals that are crazy expensive -- and totally inaccessible to the average person who isn't affiliated with a university library willing to shell out the cash.

That's not good for science or innovation. And, when it's on federally funded research, it's almost criminal.

So, the NIH had this open access requirement, which was then augmented by a Congressional requirement. The 1 year still lets journals get crazy monopoly rents... but even then, many journals have sought ways to make these open access requirements difficult. For example, if you click that link, you can see how the American Psychology Association tried to charge the academics who wrote for it $2,500 to "deposit" their publication to PubMed to satisfy the NIH requirement.

So, for years, the big publishing houses have been trying to get Congress to pass a law to lock up federally funded research. In the past, this effort was led by Rep. John Conyers -- who has received lots of campaign contributions from the big publishers. A few years ago, the Obama administration actually suggested it was leaning in the other direction -- and actually requiring all federally funded research to be open access, rather than just NIH. That would be huge... but of course, the big publishers won't allow that to happen. They even made the ridiculous argument that open access requirements would harm transparency in government. Yeah. Don't even try to understand it, because it doesn't make sense.

Tragically, it appears that a new version of this bill has been introduced... called the Research Works Act. It's a pretty short bill, but here's the key part:

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that--

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

Note the use of "private-sector research work." There's a definition for that:

PRIVATE-SECTOR RESEARCH WORK- The term 'private-sector research work' means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

This is tragically bad drafting in that depending on how you interpret the commas, it almost certainly means that the NIH requirements and anything similar would be barred. That is, it appears to define federally funded research as "private sector research work," if it's going to be published by a private journal. The Association of American Publishers sure was quick to celebrate the bill, making it clear that it was exactly what they wanted: a ban on forcing works they publish into open access models. Of course, the language is purposely vague so that if you misread it, you might think it doesn't include government-funded works. That's not true. It simply doesn't include government produced works, which are public domain by definition and couldn't be thus limited anyway.

Furthermore, the bill appears to create a new copyright-like "right" for publishers outside of copyright itself. That is, it grants the final say in permission to the publisher, rather than the copyright holder. So, even in a case where an author retains the copyright, or retains distribution rights, this bill could potentially grant the publisher extra rights out of thin air.

The real tragedy here? The bill's sponsor is Rep. Darrell Issa -- who's based much of his recent political career on the claim that he wants more open government. Yes, the same Darrell Issa who put forth the SOPA/PIPA alternative, the OPEN Act, with its awesome open website that allows for direct feedback on the bill. And he's behind the open access to Congressional hearings video that we just talked about.

This bill seems to go against everything that he's said he stands for on related issues, and people are definitely noting how odd this seems.

There's no two ways about it. This is a bad and dangerous bill that will only serve to lock up important, taxpayer-funded research. As we've discussed in detail in the past, such locking up of research does tremendous harm to important scientific research, puts people in harm's way and slows down innovation. It's tremendously disappointing that Rep. Darrell Issa would be behind such a bill. It really does seem to go against everything that he stands for.

Filed Under: copyright, darrell issa, federally funded research, nih, open access, publishers, research

'Nerds' Finally Get Their SOPA Hearings Over Technical Impact... But Not At The Judiciary Committee

from the good-to-see dept

While Lamar Smith and the House Judiciary Committee still have refused to hear from the actual technology experts, Rep. Issa has now scheduled a SOPA-related hearing... in his House Oversight Committee, and it will finally allow tech experts to speak about the technological impact of SOPA. It's a good list of speakers including: famed security researcher Dan Kaminsky (who co-authored the paper about problems of SOPA with Paul Vixie and others), Stewart Baker (former DHS/NSA top official, who has warned about SOPA harming internet security), Dr. Leonard Napolitano (from Sandia National Labs, who also warned about the security problems), Michael Macleod-Ball (from the ACLU). And representing the startup world, we've got Brad Burnham (from Union Square Ventures -- probably the most sought after VC firm for startups today) and Alexis Ohanian, the entrepreneur behind Reddit, Hipmunk and Breadpig, and who has been an outstanding advocate for why SOPA is dangerous. Think of this as the hearing that Lamar Smith didn't want you to hear. Update: Reasonable point in the comments: this hearing is extremely one-sided as well. Perhaps that's fitting "counter-balance" for the pro-SOPA hearing that the Judiciary Committee held, but it still would be nice to have at least some "pro-" voices on the hearing. Of course, can you think of an actual, respected technologist who is in favor of SOPA? Yeah... didn't think so...

Filed Under: alexis ohanian, brad burnham, cybersecurity, dan kaminsky, darrell issa, dns blocking, dnssec, leonard napolitano, michael macleod-ball, pipa, protect ip, security, sopa, stewart baker

A Good Step: House Oversight Committee Puts Hearing Archive Video Online

from the nicely-done dept

The House Oversight Committee in Congress has done a cool thing that pretty much every committee in Congress should have done long ago: put a ton of its archived video of Committee hearings online. You can see them all on YouTube. The actual project was done by Carl Malamud -- and as we've noted in the past, if Malamud is involved in a project, it's almost certainly a good thing. Malamud is a leading force in terms of open government and government transparency, and it's great that Rep. Darrell Issa and the House Oversight Committee worked with him on this project. All in all, they put up 1,139 videos, ranging back as far as March of 1993 (and right up to December 16th of 2011). This is a "pilot project," so hopefully it means the same thing will be done with other Congressional video as well.

Filed Under: carl malamud, congress, darrell issa, government, open access, oversight committee