USTR's February 10, 2009 memo on Transparency Soup

Background

On October 14, 2009, KEI submitted a FOIA request to the USTR, which is available here, asking for the following records:

KEI requests all records at USTR on the topic of the policy and practice of USTR regard the transparency of trade negotiations, including but not limited to the Anti-Counterfeiting Trade Agreement (ACTA).

On September 3, 2010, we received a letter dated August 30, 2010, with a very incomplete response to that FOIA request. The most interesting document included in the preliminary response was an email with 3 pages of attachments sent by Stan McCoy, the Assistant U.S. Trade Representative for Intellectual Property and Innovation, on February 10, 2010. (McCoy joined USTR under the Bush Administration).

A scanned copy of the McCoy missive is available here.

Stan McCoy's February 10, 2009 email on "transparency soup."

President Obama was inaugurated on January 20, 2009.

On January 31, 2009, KEI submitted a Freedom of Information Act (FOIA) request to USTR for copies of seven documents containing much of the negotiating text of the proposed Anti-Counterfeiting Trade Agreement (ACTA).

On February 10, 2009, Stan McCoy send an email to Elizabeth Baltzan, David Apol, Rachel Bae and Kira Alvarez, with the subject "Transparency Soup." In this memo, Stan McCoy anticipated that the Obama Administration might seek to expand the transparency of the ACTA negotiation. McCoy set out a seven point strategy for dealing with the demands for transparency. These proposals were quite limited. Since then, the Obama administration has gone no further than McCoy's suggestions, and in some cases, has done less.

On March 10, 2009, USTR rejected our FOIA for the ACTA text on the grounds that this would undermine the national security of the United States.

McCoy's February 10, 2009 transparency proposals were as follows:

  1. Starting Positions. USTR will post on its website the text of the initial U.S. negotiating proposals. Text may include blank spaces or brackets as appropriate.
  2. Initial (prefinal) text: Before the agreement is signed, USTR will post the final negotiated text (which may be subject to a final technical review).
  3. Meta-text. USTR will not disclose U.S. or trading partner proposals as such, but may seek public comments as needed on "proposed text under consideration" in a negotiation, which will not be identified with any government and may include U.S. proposals and/or any non-FGI proposal of trading partners.
  4. Interim text: USTR may release bracketed interim texts if all trading partners engaged in a particular negotiation agree.
  5. More Cleared Advisors: USTR will add more NGOs to cleared advisor groups and/or create new groups to broaden the range of stakeholders who can see nonpublic texts.
  6. Updates: USTR will periodically provide public updates and/or hold public meetings on the progress of the negotiations.
  7. Open-Door: USTR will maintain an open-door policy for meetings with interested stakeholders.

Commentary

The following are comments on each of the 7 USTR Feb 10, 2009 proposals.

  1. Starting Positions. The Obama Administration never agreed to post on its web site the initial US negotiating proposals.
  2. Initial (prefinal) text: The Obama Administration now says it will only agree to release an official version of the negotiating text after substantive negotiations have concluded.
  3. Meta-text. This has not happened.
  4. Interim text: After the March 10, 2010 European Parliament vote of 633 to 13 to demand the release of the ACTA negotiating text, the Obama Administration agreed to a release of the April 16, 2010 version of the consolidated text, without country positions. This is the only time so far the Obama Administration has agreed to a release of the text.
  5. More Cleared Advisors. In August through October of 2009, USTR created a system to provide at least 42 persons access to the U.S. proposal for the Internet chapter of ACTA, after signing an NDA. This included two non-profit groups with strong technology industry ties: Public Knowledge and CDC.
  6. Updates. USTR has done this. The information provided in such briefing is sometimes helpful and informative, while at other times, has been incomplete, vague or misleading.
  7. Open-Door. USTR has done this.

We will tell you when its too late to do anything

One of the attachments to the email is a draft announcement of a USTR position on transparency. Here is one of the proposed answers to frequently asked questions that McCoy proposes:

Q. What if U.S. positions evolve during negotiations?

The public can see how the U.S. position has evolved when the final text is signed.


Links

Mike Masnick, from the clear-as-mud dept: Transparency Pea Soup: The USTR Planned From The Beginning How Not To Be Transparent On ACTA, TechDirt, Sep 10, 2010.

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