What The Heck Is The Trans-Pacific Partnership & Why Should I Be Concerned?

It’s 2014, and we’re living in an increasingly globalized economy. International trade has been ramping up for centuries, and a carefully-plotted web of agreements keeps goods, services, and money moving around the world. The U.S. is already a part of many such agreements and organizations — NATO and NAFTA might sound familiar — but a new international trade agreement, under negotiation right now, has a lot of watchers very worried about potential consequences for everything from healthcare to copyright law in the United States.

The agreement kicking up all the concern is the Trans-Pacific Partnership, or TPP. Most of the nations involved in the process have had cooperative trade arrangements for years — so why is this particular treaty gaining so much attention? The answer is threefold: the process, the contents, and the fact that it’s still in the works and can be changed. Let’s take a look at all those parts.

Who’s involved?

The countries taking place in the negotiations include Canada, the U.S., Mexico, Peru, Chile, New Zealand, Australia, Malaysia, Brunei, Singapore, Vietnam, and Japan.

The enormous free trade deal has been in progress in one way or another for the better part of a decade; the U.S. jumped on board in 2009. Together, the involved nations represent about 40% of the global economy, according to the LA Times.

That’s an awful lot of Pacific rim countries that aren’t China.

Noticed that, eh? As the Washington Post pointed out, such a large agreement among other nations can be used to counterbalance China’s enormous economic weight, in a sense. Whether that’s a good thing or not depends on who you ask.

What traded stuff does this agreement cover?

The thing about your modern, 21st century trade agreement is that it’s not really just about trading goods. Long gone are the days when international trade was only about agriculture, manufacturing, and import tariffs.

Those things — farming and manufacturing — are still absolutely key, and central parts of the TPP. But in the “knowledge economy,” trade is also about patents, copyright, digital goods, and a whole lot more.

The known categories in the 29 chapters of the agreement include regulations relating to intellectual property and copyright law, banking regulation, agriculture, pharmaceutical regulation, environmental protection, tobacco sales, apparel manufacture, labor law, and regulations about publicly vs. privately owned utilities and enterprises.

The history and background of the economic factors contributing to this sort of thing are huge and messy. For an easy-to-understand explainer, there’s a comic book up at Economix Comix that looks at free trade, trade treaties, and the economic background, causes, and effects of such a massive free trade agreement.

Wait, the “known” categories? Does that mean there are unknown ones?

Possibly? Probably? The biggest challenge is that nobody actually knows for sure what this agreement covers.

One of the biggest objections to the TPP, in both the United States and in other participating nations, is that it’s even hard to know exactly what to object against. Trade negotiations are almost always secret proceedings, and this one is no exception. For everyone who isn’t privy to what goes on behind the closed doors, everything we know comes from a few leaked drafts that have dribbled out over the years.

Okay, negotiations are secret. But then everyone gets to find out what’s in it before it’s actually signed, right?

Yes, sort of, but also sort of not.

Trade agreement formation, in the United States, is basically a three-step process:

The office of the United States Trade Representative, which reports up to the President, negotiates the agreement with other nations.

The Senate votes on the completed treaty. It takes a ⅔ vote in the Senate — so, 67 senators — to approve the treaty.

The President ratifies (signs) the approved trade agreement.

With regular laws, details get agreed on, disagreed on, and hashed out as a bill moves back and forth through the House and Senate. Lawmakers get to pick and choose which parts they like and which parts they hate, and try (ideally) to compromise on those points to create a better law, that everyone can live with. For better or worse, that’s the system with which American laws are made.

But with international agreements, there’s something called fast-tracking. It’s exactly what it sounds like: a short-cut through the approval process. If Congress grants the President fast-track authority, that means the fully-negotiated, finished treaty goes to the Senate for a vote: no amendments, no filibusters, no changes or negotiations. It’s a wholesale yes/no, binary option.

Fast track authority was first enacted in 1974, and a series of bills since then have extended it. The most recent was the Trade Act of 2002, but the authority granted by that extension expired five years later, in 2007, and has not been renewed since.

The Obama administration has been making noise about renewing the fast-track authority since 2012; a bipartisan bill to that end was introduced in the House (HR 3830) and the Senate (S 1900) earlier this year.

So this thing’s going to get fast-tracked through the Senate.

Quite possibly! Also quite possibly not. The politics of this one are not breaking down along the standard party lines in the way one would usually guess.

Govtrack.us gives the House bill a 63% chance of being enacted, but spots the Senate version a lowly 3% chance. And there are plenty of groups out there pushing hard against fast-track authorization.

There a lot of techie/internet sites and groups against this. Why?

While most of what’s in the TPP is still a secret, the drafts of two chapters have made it out into the wild, via Wikileaks. One of those two chapters covers environmental and climate issues but doesn’t contain very much in the way of firm regulation or enforcement mechanisms.

The other, though, is all about intellectual property rights. That IP chapter contains some really questionable provisions about copyright, digital files, and internet use.

For example, the TPP contains a restriction on the creation of temporary copies of files — a provision that the EFF calls “profoundly disconnected from the reality of the modern computer.” (Because your computer does that dozens of times a day just to function.) It also would impose criminal penalties for “non-commercial copyright infringement,” continue expanding copyright durations, limit fair use, increase penalties for avoiding region-locking media, and more.

Overall, the IP chapter has a lot in common with the previously-abandoned ACTA treaty and the narrowly-avoided SOPA bill of 2012.

So international agreements change U.S. law?

They can indeed. Much in the same way that state laws are subject to being overridden by tougher federal standards, when a nation agrees to participate in an international agreement like this, their laws become subject to its terms.

A case from Australia is perhaps the most famous recent example of this. Australia adopted a law requiring plain packaging — that is, without visible branding symbols, and bearing a large health warning — on tobacco products. The Asian subsidiary of tobacco giant Philip Morris, based in Hong Kong, promptly turned around and sued Australia, claiming that the new law violated the terms of a trade treaty between Australia and Hong Kong.

While Australia’s High Court ruled that the plain packaging law did not violate Australia’s constitution, the trade dispute is still pending with the WTO, and other nations are now involved.

In fact, international agreements have already been the primary driver of U.S. digital copyright law. The current major legislation under which most IP/internet/copyright issues fall, the Digital Millennium Copyright Act (DMCA) of1998, includes provisions directly in response to international agreements from 1996.

Now what?

Since the TPP is still under negotiation, there are still a bunch of different possible outcomes. It could go forward as-is, it could fall apart entirely, it could be a bunch of different things in-between.

The last big negotiation session for all participating nations was in Singapore in February, but a number of sticking points remain. Some of them are being hashed out in smaller meetings of just two and three countries. Some appear not to be going anywhere at all.

DC political observers go through waves of pessimism and optimism about the TPP. This week they appear to be feeling both hopeful and doomed at the same time.

Insiders and watchers do seem to agree on one key point: without fast-track approval, the TPP won’t make it through. The negotiations won’t necessarily all be moot at that point — that’s a lot of work to waste and the parties who want concessions will still want them. Those points could be re-formed into a number of smaller agreements, or a new major multilateral agreement — but the TPP as we know it would be a no-go in the U.S.