Internet freedom advocates are concerned that a vast new trade partnership supported by the Obama administration and placed on the path to fast-track approval by Congress Thursday will permit multinational corporations to crack down on freedom of speech and the right to privacy online. The complaints are aimed at a crucial part of the Trans-Pacific Partnership (TPP), a pact that could help shape President Obama’s legacy on economic issues.
While the terms of the proposed deal have been made public only through a series of leaks, the U.S. has been pushing for an agreement with 11 other countries that make up 40 percent of U.S. imports and exports. Leaked versions of the pact make it clear the U.S. is trying to sway other countries to implement American intellectual property law already used by copyright holders to remove legally questionable content from the Internet in the U.S.
The intellectual property provision of the TPP is essentially a global version of the Digital Millennium Copyright Act, the 1998 law that critics say has already had a chilling effect on the kind of content Internet service providers and websites host.
“We’ve already seen with copyright enforcement provisions an increasing policing of content online,” said Maira Sutton, a global policy analyst at the Electronic Frontier Foundation (EFF). “The risk with the TPP is that it’ll increase incentives for ISPs to remove content to make sure they’re not liable for what users post. In the U.S., we’ve seen rights holders sending letters to ISPs saying something is infringing, and ISPs will remove content whether it’s infringing or not.”
Other TPP opponents include the Sierra Club, the AFL-CIO and prominent congressional Democrats like Sens. Elizabeth Warren, D-Mass., and Harry Reid, D-Nev. The EFF has also taken issue with the investor-state dispute settlement (ISDS) provision, which the group says would make it possible for a foreign corporation to challenge laws or government action based on the claim that the action means the company’s profits will be affected.
A Threat To Fair Use?
Sutton suggested that a Hollywood lobby group could file an ISDS claim if a foreign court ruled against movie makers’ interests on a case involving "fair use." Fair use is a provision of U.S. copyright law that allows copyrighted material to be used for criticism, satire, research, search engines, the news media and for other purposes without the copyright holder’s permission.
“Who decides whether the country’s rules are consistent with the TPP? The ISDS court itself is the one who makes that determination,” Sutton wrote in a recent EFF blog post. “This means that the agreement gives the ISDS court the ability to interpret national compliance with the provisions of the TPP, a dangerous proposition given the partisan nature of [existing] ISDS courts. These tribunals are usually comprised of three private-sector attorneys who take turns being the judge and corporate attorney.”
But ISDS agreements are nothing new. The U.S. has sought similar deals for decades, and a coalition of 47 politically unaffiliated law professors from major universities around the country signed an open letter to Congress asserting that ISDS agreements don’t undermine law but reinforce it.
“It ensures that, where right is given, a remedy is also provided,” the authors wrote in the letter published earlier this month. “It permits foreign investors to hold host states to the obligations they have undertaken in their treaties by means of a quasi-judicial process; and it also offers a forum for states to vindicate their policy choices.”
The Biotechnology Industry Organization (BIO), the largest trade organization lobbying on behalf of biotech companies in the U.S., is a major TPP supporter. Courts in Peru, Vietnam and other countries in the Asia-Pacific and through Latin America are known for siding with local companies in disputes against foreign companies.
“This is an industry that’s characterized by small and medium-sized companies. They’re the ones that need the most help,” said Joseph Damond, BIO’s senior vice president of international affairs. “There’s been a huge misunderstanding about ISDS, in my opinion. If a country has a well-functioning, nondiscriminatory rule of law, they don’t have anything to worry about.” Complaints about secrecy have failed to impress BIO’s Damond. “If you want to see what an international IP agreement looks like, just look at the last 10 trade deals,” he said. “It’s not some big mystery.”
Under the terms of the most recently leaked TPP draft, the EFF argued that signatories would agree to criminalize the unauthorized editing of digital rights management technologies. DRM files are often included in purchases from iTunes and Amazon so the company can prevent the files from being shared or resold without their authorization. Thinking of sharing an Audible audiobook? That might cost a sentence of “imprisonment as well as monetary fines sufficiently high to provide a deterrent.”
Cloaked In Secrecy
Another concern cited by the EFF and many others is the lack of transparency around the entire process. Almost everything the public knows about the proposed TPP originated with unauthorized disclosures, with many of those leaks coming from the anti-secrecy organization WikiLeaks. The office of U.S. Sen. Bernie Sanders, Ind-Vt., previously confirmed to International Business Times that members of Congress are allowed to review it only in the U.S. trade representative’s office without anyone else present.
“National security secrecy may be appropriate to protect us from our enemies; it should not be used to protect our politicians from us,” said a New York Times editorial column published Tuesday. “For an administration that paints itself as dedicated to transparency and public input, the insistence on extensive secrecy in trade is disappointing and disingenuous.”
If Sanders’ office is right, there’s likely been a line to get into the trade representative’s office. Sens. Orrin Hatch, R-Utah, and Ron Wyden, D-Ore., the Senate Finance Committee leaders, announced a bipartisan fast-track authority deal Thursday that allows Obama to submit free trade agreements, including the TPP, to Congress for straight “up or down” votes without any amendments. The fast-track deal, which is widely accepted by Republicans but has split Democrats, has been portrayed in Washington as a key strategy for passing the TPP.
TPP negotiations have been going on behind closed doors for five years. Japanese Prime Minister Shinzo Abe is scheduled to address a joint session of Congress on April 29. Not having a fast-track deal in place, which Japanese officials have said they see as essential to pass the TPP, would be a step back for the 12-country agreement, which mainly involves nations with borders on the Pacific Rim, including Canada, New Zealand, Japan, Chile and Peru.
Along with the EFF, environmental groups, unions and other TPP opponents have been engaged in an ongoing this public relations effort against the agreement. “We just don’t think digital regulations should be involved in trade negotiations when the public and digital rights organizations aren’t involved in the discussion,” Sutton said.