USTR Misses the Transparency Memo

When President Obama signed a Transparency and Open Government memo as well as a Freedom of Information Act memo on his first day in office, we were very heartened to see transparency made a key element of the start of this administration. In his first day in office, the President revoked Bush-era policies of data secrecy and returned the federal government to a presumption of openness, and we lauded him. We could not say it any better than the memos did: “In the face of doubt, openness prevails. The government should not keep information confidential merely because public officials might be embarrassed by disclosure,” and “openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

Unfortunately, the office of the U.S. Trade Representative seems to have missed these memos. Last week, the USTR denied a FOIA request for information about the Anti-Counterfeiting Trade Agreement (ACTA). This trade agreement, which contrary to its name is expected to cover a potentially broad range of copyright issues with no connection to actual “counterfeiting,” has been the subject of a variety of fears and rumors during its largely secret negotiations. CDT has expressed concern about this lack of transparency. Unfortunately, instead of embracing the new era of openness in action, USTR denied the FOIA request using the same non-specific national security exemptions that were used in the Bush administration.

Despite these alleged national security concerns, lobbyists and advisors all over the world have been given access to ACTA documents. According to Knowledge Ecology International, anyone on a USTR advisory committee gets access to the ACTA materials. However, the representatives from major industries who serve on these committees are not the only stakeholders in the international copyright debate; consulting with only a few handpicked partners will likely lead to a narrow, slanted, and incomplete understanding of the policy issues at stake. The proposed treaty could touch on a wide range of issues, but no draft text has been released. The lack of transparency creates a serious risk that controversial provisions could be adopted with no meaningful opportunity for input or debate from groups representing users and advocating the greater public interest. With respect to copyrighted works, readers, watchers, and listeners might well be more likely to respect policies they feel are developed with some consideration of their legitimate interests in an open and balanced debate.

There is no substitute for a transparent process that allows for careful scrutiny and input by the full range of potentially interested parties. The negotiators of ACTA, in particular USTR, need to open up the process. If the USTR thinks that it is receiving a diverse and representative set of opinions from a limited set of privileged advisors, then its conception of copyright’s stakeholders is as pinched and outdated as its Bush-era approach to FOIA requests.