Free Flow of Information a Priority in TPP Negotiations, USTR Says

The U.S. is negotiating the Trans-Pacific Partnership (TPP) agreement under the “presumption that data should move,” said Deputy Assistant U.S. Trade Representative for Telecom and Electronic Commerce Policy Jonathan McHale. “There’s some protectionist challenges we have to meet.” He cited governments that demand that data storage companies locate their servers in those countries to sell products and services to their citizens. In many cases, these kinds of protectionist policies can harm not just American companies, but also foreign users, he said at an event at George Washington University on Friday: “There really is a strong understanding that all the commercial entities in these countries and the consumers benefit” from having a free flow of information across borders.

Ensuring the free flow of information across borders is a major goal of the TPP agreement, said panelists at the event hosted by the university, Institute of International Economic Policy, Computer and Communications Industry Association, Heinrich Boell Foundation and MacArthur Foundation. Countries should have the right to decide what kinds of information need to stay within their borders, McHale said. “You want to respect the sovereignty of all these countries, but you want to make sure the measures put in place aren’t so extreme” that American companies are denied access to foreign markets,” he said. “The challenge is to have language that can evolve” to meet the security needs of other countries, he said, “but it has to be meaningful."

Advancing the free flow of information will do more than benefit U.S. companies, agreed Jayme White, staff director for the Senate Subcommittee on International Trade, Customs and Global Competitiveness. His comments came in an email to us after the panel, which he participated in as an off-the-record speaker. “Trade is about people,” not just bottom lines, he said. “A trade agenda that promotes an open and free Internet … not only promotes the economic interests of American business and the workers they employ … [but] also advances human rights and the cause of freedom around the world. One only need to look at the events of the Arab Spring and events in Russia for this evidence."

There has been some success in keeping borders open for information, McHale said, pointing to Vietnam. Initially, he said, that nation wanted data storage companies trying to sell its services to Vietnamese customers to locate their servers in Vietnam. “They've been very open to input from everybody,” he said. While he hasn’t seen the most recent draft of the Vietnamese proposal, McHale said he’s been told the server-location provision was taken out.

The U.S. proposal is inconsistent in protecting the free flow of information, said Rashmi Rangnath, director of the Global Knowledge Initiative at Public Knowledge. It should protect “more than the free flow of commercial information,” she said. The proposal is “limited to the flow of commercial information, and not other forms of expression that the U.S. government generally wants to promote,” she said. The proposal’s e-commerce chapter “is designed to promote free flow of information, even though it may be limited in scope to commercial information,” she told us. The intellectual property chapter “inhibits free flow of information by calling for copyright enforcement measures that disregard the free speech rights of third parties,” she said.

The IP rights chapter “is too specific,” Rangnath said. Basing her comments on the leaked U.S. proposals, Rangnath said the TPP could require countries to allow copyright holders to overreach in enforcing their copyrights. She pointed to digital rights management, or what she calls “digital locks,” as an example. With strict copyright enforcement, she said, film professors could be unable to cut together clips of copyrighted films to demonstrate various techniques to their students. “It kind of seems to advantage the current incumbent business models that have not gotten used to the flow of information” on the Internet, she said. Instead, Rangnath suggested considering a model that “recognizes the importance of protecting creativity but also realizes how creativity happens."

Rangnath pointed to inconsistencies between the U.S. TPP proposal and the country’s approach to other international agreements. She compared the country’s leaked TPP proposals and the country’s approach in the upcoming World Conference on International Telecom. “Now there are proposals [from other countries] to extend the ITU’s jurisdiction to the Internet,” Rangnath said. The U.S. has stood up to those countries to fight for the free flow of information on the Internet, she said. The push for that free flow of information seems to be missing in the IP chapter of the U.S. TPP proposal, she said. “The approach in TPP’s IP chapter … provides a sense of mixed message to the world."

"I don’t see these as in conflict,” McHale countered. He said an open Internet needs to have strong IP protections to flourish. The TPP negotiation process needs to be more transparent, Rangnath said. Currently, any comments about the U.S. proposal and its IP chapter are based on leaked drafts, she said. Those comments “are limited, because the chapter itself is not available,” she said. Even when the USTR has been open to meeting with public interest groups like Public Knowledge, it has been a “one-way information flow from us to them with no ability to gauge how our input is being perceived,” she said.

Members of Congress have also expressed dissatisfaction with the lack of transparency, White said by email. Senators can view the text of the U.S. TPP proposals in “a room by themselves, and view hundreds of pages of arcane legal text. They can’t consult their staff or any experts on what they read. They can’t take notes with them out of the room,” he told us. “I invite folks to visit the USTR’s website and look at the final text of the U.S.-Korea Free Trade Agreement and judge for themselves if a Member of Congress, or really anyone, could make sense of what they are looking at without expert help. Then decide if USTR is being truthful about keeping Congress fully informed of what it’s doing.”