Speaking before the Senate Finance Committee on Wednesday, US Trade Representative Ron Kirk touted the openness and transparency of negotiations over the Anti-Counterfeiting Trade Agreement (ACTA) and the newer Trans Pacific Partnership. Both of those contain numerous copyright and patent provisions. Kirk's statements are sharply at odds with those of the treaties' critics, who say they have been shut out of negotiations.

The day before Wednesday's hearing, a legal advisor to the State Department sent Sen. Ron Wyden (D-OR) a letter. It argued that ACTA is a "legally binding international agreement," but the Senate doesn't need to ratify it. Why? The advisor, Harold Koh, argues the negotiations were authorized by the 2008 PRO-IP Act. He claimed that because no legislative changes will be required to bring the US into compliance with ACTA, the Obama administration can accept it unilaterally without consulting the Senate, which must ratify all treaties.

But Wyden (D-OR), a leading critic of ACTA, wasn't convinced.

"It seems to me that this really boxes the Congress in on some very important questions," he told Kirk at a Wednesday hearing. "The Congress is now going to have to be looking over our shoulder with respect to whether or not we've done something that could cause an ACTA party nation to sue us."

"All over the world, you've got parliaments and legislators having debates on whether or not to pass ACTA," Wyden continued. "Why shouldn't the United States Senate consider something like this? As you know, the traditional practice is when something is considered a treaty—a binding agreement—it comes before the Senate."

"Congress has frankly asked us to act," Kirk responded. He again pointed to the 2008 PRO-IP Act as authorizing the ACTA negotiations.

At the same hearing, Wyden pressed Kirk on the transparency of the ACTA and TPP negotiations. "The public, particularly those who feel so strongly about this issue, feels shut out," he said. He suggested the negotiation process was not "in line with the president's commitment to transparency and open government."

Kirk didn't flinch. "We have engaged in more public consultations over this Trans-Pacific Partnership, probably by tenfold," he said. "We have had stakeholders participate as observers in a number of our sessions, including those that are concerned about these issues."

"I would defend our record for transparency, for inclusion of all groups, against any other administration," Kirk told Wyden.

If you listen closely to the video of the exchange, you can almost hear Wyden's jaw hit the table. "Right now, there is a requirement for a security clearance to see TPP texts and documents," Wyden noted with a hint of exasperation in his voice.

Transparency theater



Ars asked Margot Kaminksi, the executive director of Yale's Information Society Project, to comment on the debate. "The so-called stakeholder participation in negotiations of the Trans-Pacific Partnership has been transparency theater, not real transparency," she told us. "At the instigation of USTR, all negotiators were made to sign a confidentiality agreement back in March 2010 that does not allow disclosure of documents until four years after the treaty has been signed."

Kaminski described a "public briefing" on the treaty she attended in Peru last October. "Negotiators did not in fact brief us on the substance of the text," she said. "They refused to answer questions of any substance, including basic questions such as whether a draft text would be released before signature."

Many others have complained of being shut out of the negotiations. For example, Sean Flynn is an American University scholar and a TPP critic who attempted to organize an information session at the same California hotel as a TPP negotiating session. The conference room Flynn reserved was abruptly cancelled by the hotel. Similarly, public-interest groups like Public Knowledge have been complaining bitterly for months that they have been blocked from even seeing copies of draft agreements.