Fast Track Bill Would Legitimize White House Secrecy and Clear the Way for Anti-User Trade Deals

Following months of protest, Congress has finally put forth bicameral Fast Track legislation today to rush trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) through Congress. Sens. Orrin Hatch and Ron Wyden, and Rep. Paul Ryan, respectively, introduced the bill titled the Bipartisan Congressional Trade Priorities and Accountability Act of 2015. With Fast Track, lawmakers will be shirking their constitutional authority over trade policy, letting the White House and the U.S. Trade Representative pass Internet rules in back room meetings with corporate industry groups. If this passes, lawmakers would only have a small window of time to conduct hearings over trade provisions and give a yea-or-nay vote on ratification of the agreement without any ability to amend it before they bind the United States to its terms.

The Fast Track bill contains some minor procedural improvements from the version of the bill introduced last year. However, these fixes will do little to nothing to address the threats of restrictive digital regulations on users rights in the TPP or TTIP. The biggest of these changes is language that would create a new position of Chief Transparency Officer that would supposedly have the authority to “consult with Congress on transparency policy, coordinate transparency in trade negotiations, engage and assist the public, and advise the United States Trade Representative on transparency policy.”

However, given the strict rules of confidentiality of existing, almost completed trade deals and those outlined in the Fast Track bill itself, we have no reason to believe that this officer would have much power to do anything meaningful to improve trade transparency, such as releasing the text of the agreement to the public prior to the completion of negotiations. As it stands, the text only has to be released to the public 60 days before it is signed, at which time the text is already locked down from any further amendments.

    The bill’s only new feature in this respect is a new “consultation and compliance” procedure that would only be usable after an agreement was already signed and entered into, at which point changes to the pact could be made only if all other negotiating parties agreed to reopen negotiations and then agreed to the changes (likely after extracting further concessions from the United States). That process would require approval by 60 Senators to take a pact off of Fast Track consideration, even though a simple majority “no” vote in the Senate would have the same effect on an agreement.

Thus, essentially the Fast Track bill does the same as it ever did—tying the hands of Congress so that it is unable to give meaningful input into the agreement during its drafting, or to thoroughly review the agreement once it is completed.

A main feature of the bill is its negotiation objectives, which set the parameters within which the President is authorized to negotiate the agreement. If Congress considers that the text ultimately deviates from these objectives, it can vote the agreement down. Some of these negotiation objectives have been added or changed since the previous Fast Track bill, but none of these provide any comfort to us on the troubling issues from the Intellectual Property, E-Commerce, and Investment chapters of the TPP. Indeed, some of the new text raise concerns. For example:

    Governments are to “refrain from implementing trade-related measures that impede digital trade in goods and services, restrict cross-border data flows, or require local storage or processing of data”. Data flows and the location of the processing of data aren't solely or even primarily trade issues; they are human rights issues that can affect privacy, free expression and more. The discussion about whether laws that require local storage and processing of certain kinds of sensitive personal data are protective of user rights, for instance, cannot take place in the secret enclaves of a trade negotiation. The bill does allow for exceptions as required to further "legitimate policy objectives", but only where these "are the least restrictive on trade" and "promote an open market environment".

    Trade secrets collected by governments are to be protected against disclosure except in "exceptional circumstances to protect the public, or where such information is effectively protected against unfair competition". But there are other cases in which there may be an important public interest in the disclosure of such trade secrets, such as where they reveal past misdeeds, or throw transparency onto the activities of corporations executing public functions.

But more troubling than what has been included in the negotiating objectives, is what has been excluded. There is literally nothing to require balance in copyright, such as the fair use right. On the contrary; if a country's adoption of a fair use style right causes loss to a foreign investor, it could even be challenged as a breach of the agreement, under the investor-state dispute settlement (ISDS) provisions. Further, the "Intellectual Property" section of today's bill is virtually identical to the version introduced in 2002, and what minor changes there are do not change the previous text's evident antipathy for fair use. So while the new bill has added, as an objective, "to ensure that trade agreements foster innovation and promote access to medicines," an unchanged objective is "providing strong enforcement of intellectual property rights." What happens if those two objectives are in conflict? For example, in many industries, thin copyright and patent restrictions have proven to be more conducive to innovation than the thick, "strong" measures the bill requires. Some of our most innovative industries have been built on fair use and other exceptions to copyright—and that's even more obvious now than it was in 2002. The unchanged language suggests the underlying assumption of the drafters is that more IP restrictions mean more innovation and access, and that's an assumption that's plainly false.