The Trans-Pacific Partnership agreement (TPP) threatens to regulate and restrict the Internet in the name of enforcing intellectual property (IP) rights around the world, yet the public and civil society continue to be denied meaningful access to the official text and are even kept in the dark about what proposals countries are pushing in this powerful multilateral trade agreement. With users having sent over 80,000 messages to Congress asking them to demand transparency in the TPP using EFF's Action Center, Congress members have been urged into action to uncover the secrecy.

On September 20th, Representative Zoe Lofgren sent an additional follow-up letter to USTR, which EFF applauds. According to the letter, Rep. Lofgren, who has long been a strong advocate for digital rights and was a vocal opponent of SOPA, met with Ambassador Ron Kirk directly to discuss the TPP and her concerns over the lack of transparency in the process. The letter, which mentions that Ambassador Kirk told her he welcomed feedback on how to address the concerns, asks USTR to: balance TPP IP enforcement provisions with user privileges; diversify the policy perspectives on their Industry Trade Advisory Committee for IP; and be more transparent in its TPP negotiations overall.

Rep. Lofgren stated in her press release for the letter:

“TPP's IP provisions must not undermine the free expression of Internet users, the ability to share and create content online, the free and open character of the Internet, or the freedom of digital service providers to innovate. Lack of transparency and overbroad IP enforcement requirements have held back other international trade agreements in the recent past – these same issues are now undermining the results [USTR seeks] to achieve with TPP."

They have yet to hear back with a response from the USTR.

This is not Congress' first attempt to unveil TPP. As we have reported, Senator Ron Wyden and Representative Darrell Issa are currently working on gathering signatures from their colleagues in Congress to ask the US Trade Representative Ron Kirk to reveal what they are seeking in the TPP's IP chapter, specifically in relation to provisions that would impact the Internet and access to pharmaceutical drugs. And in June of this year, 130 Members of the House of Representatives sent a detailed letter to the USTR asserting Congress' required role in the trade negotiations, making specific requests as to how they could make the process democratic and transparent while emphasizing the ways in which it fails to be neither of those things. Two months later, the USTR responded [PDF] in a letter that did not address any of the specific issues raised by Congress members.

Confidentiality Agreement

The USTR claims that at the outset of the TPP negotiations in 2009, the participating countries signed a confidentiality agreement. In the June letter from 130 US Representatives, they explicitly asked for "a copy of the confidentiality agreement and an explanation as to what role USTR or other governments played in crafting it." In the USTR's response letter they completely ignored this request.

However, the model confidentiality agreement that served as a base for the TPP negotiators is a public document, available at a page on the New Zealand Ministry of Foreign Affairs and Trade website. The model agreement lays out the rules of confidentiality for signatory countries over TPP draft texts, proposals, communications, and other documents relating to the negotiations over the agreement. It is not clear, however, whether the model mirrors the exact agreement USTR signed, and USTR is likely subject to internal confidentiality policies in addition to the agreement.

While the confidentiality “model letter" itself is extremely vague, it does contain some interesting parts:

It states that the negotiating texts, government proposals, emails, and other related documents can be "provided" to government officials.

It states that documents can be accessed by "persons outside government who participate in that government's domestic consultation process and who have a need to review or be advised of the information in these documents."

It holds that "all participants plan to hold these documents in confidence for four years after entry into force of the Trans-Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations."

It lays out the level of security needed to protect the confidentiality of the agreement, including that it may be kept in a "locked filing cabinet" or within a "secured building". Amusingly, the letter also assures that the documents "do not need to be stored in safes."

If in fact this letter parallels the provisions in the confidentiality agreement, these terms may be flexible enough to allow all government officials to have regular, easy access to the text. As of now however, elected members have not had access to view or comment on the text. Senator Wyden is a member of the Senate Finance Committee (which has jurisdiction over "reciprocal trade agreements; tariff and import quotas, and related matters thereto") and is Chair of its subcommittee on International Trade, Customs and Global Competitiveness. Neither he nor his staff, who have obtained proper security clearance, have been able to get access to material related to the TPP negotiations from the USTR.

Also unclear is how they make the determination as to whether "persons outside government" should be authorized to review the documents. Trade Advisory Committees (TACs) constitute 100's of individuals who are able to log in from their own computer to a platform to view and comment on the text of the official drafts of the agreement. If the language of the confidentiality agreement is as flexible as it is written in this model letter, it is questionable as to why all nations are bound to the level of confidentiality that is being enacted.

Ultimately, the USTR has an obligation to uphold the public interest. While they keep asserting that they are being as inclusive and transparent as possible in these negotiations, civil society and the public at large recognize that the process is far from embodying any principles of democratic rulemaking. We applaud Rep. Lofgren, Rep. Issa, and Senator Wyden for taking the lead as public representatives in standing up to demand an end to these secretive trade talks. Congress people need to know that breaking open the unnecessary confidentiality around the TPP is a priority, and that users are fed up with closed door tactics to restrict and regulate the Internet in the name of IP enforcement.

Even if you have already taken our Action Alert, please help us continue to send messages to our public representatives to make TPP transparency a political priority: