What TPP means for you and how we can stop it. We are EFF, Public Citizen, Fight for the Future, & Sierra Club: Ask Us Anything

As someone that's that's specialized in trade (particularly negotiation and ISDS), I have trouble reconciling the views of groups like the EFF with my own academic knowledge. What specialists do you have on these topics that you feel you can authoritatively and with certainty comment critically on process like negotiations conducted in secret or ISDS? Aside from that, I have a question to both Lori Wallach and to Maira;

Maira: Note that I have my own reservations on these topics, but the EFF (and other tech oriented groups like techdirt) often comment on these topics forcefully and assign malice or ill-will on what are very well understood processes that have solid academic grounding. Secret negotiations are functionally no different to the concept of cabinet confidentiality, and even most regular legislation is drafted in-house and away from the public eye before being revealed, aside from calls for public submission and comment. How do you feel your comments are fair on matters such as the secrecy surrounding negotiations, in complete opposition to mainstream academic consensus (such as surrounding Putnam's two level game theory)?

Lori: I once reviewed Public Citizen's list of ISDS cases, and was shocked at how horribly biased and completely slanted away from reality it was. Cases that'd I'd spent upwards of fifty hours studying were portrayed in the most dishonest way imaginable (Vattenfall v Hamburg, or Ethyl v Canada immediately spring to mind). Do you feel it's justified and acceptable to mislead the public in an attempt to achieve your goals? And if so, how does that make the organization you represent fundamentally any better than the malign motives you assign to those behind the TPP and TTIP?

There certainly are legitimate criticisms to be made of both deals, of the process, and of ISDS. But do you not feel you're doing the public debate and the education of the masses a disservice in the relentless negativity you couch your language in?

All of the issues we're concerned about in the TPP are not traditional trade issues (like tariffs on goods). EFF isn't opposed to free trade, nor I think most of the other organizations involved in opposing the TPP. What EFF is concerned about are the huge array of regulatory obligations that would impact digital policies.

Yes, trade negotiations have always been done in secret in order to ensure that domestic politics would not get in the way of free trade. But how to think about it is that all the problematic provisions in trade agreements are like legislative riders. It's a series of provisions that would be too controversial to pass in an open, public debate among lawmakers who are accountable to the public, which is why they will, and honestly have already, stuck digital policies into trade agreements.

Does it make sense that the TPP obligates countries to make it a crime to tinker with or jailbreak your phone, car, or any number of digital devices? Does it make sense that you can be sent to jail or sentenced to pay debilitating fines for sharing a file for no financial motivation, that did not even impact the commercial interests of the artist or the copyright holder? Just as I think legislative riders are dishonest, I think it's utterly disingenuous to put these sort of policies in a "trade" agreement.

I doubt your statement that having these regulatory issues decided behind closed doors is a "well-understood policy" that is part of "mainstream academic consensus," especially in light of this statement by several dozen academics on the issue. But I'll put that aside. The ultimate question that we, as a people, have to ask ourselves is do want these rules to be decided this way? Do we want multinational corporations who have privileged access to policymakers deciding the rules for the rest of us?

Personally speaking, I abso-freakin-lutely don't. I want to live in a democracy and that's just not how democracy works.

Hi Maira, thanks for your time. To be clear, I was only commenting that negotiations conducted in secret is academic consensus, and I think your point on MNCs having 'privileged access to policymakers' with respect to the USTR is either a fundamental mischaracterization, or a fundamental difference in worldview. Nevertheless, I bow to your superior knowledge on IP issues, and starting an argument with you there is something I'd be bound to lose.

I loved what I saw of you at CopyCamp in Warsaw, by the way.

Lobbyists to multi-national corporations (MNCs) actually do have privileged access. Many of them serve on Trade Advisory Committees where they can log-in and see the drafts text of trade agreements in between the negotiation rounds. I've written about this issue for EFF more extensively here.

Although civil society groups like us could serve on these committees, we would have to sign a non-disclosure agreement, or NDA, preventing us from being able to talk about or share our inside knowledge about the agreement with anyone.

Since the public and our many thousands of members relied on us to spend the time to make sense of the TPP texts, explain why they're good or bad, and do what we can to fix the problems, we decided that we couldn't sign the NDA and serve on those committees. We were against it as a matter of principle as well, and all the other civil society groups felt the same way.

You basically repeated your talking points here to SavannaJeff. You didn't really respond to the meat of his post, which was to point out that your organizations are portraying normal aspects of trade negotiations in fundamentally dishonest ways.

"I want to live in a democracy" is a bumper sticker. It's dishonest to say that multinational corporations have 'privileged access' without pointing out that non-profits and NGOS (like the EFF) enjoy the same. And actual democracy is a nightmare - the average person doesn't understand the intricacies of international trade. In fact, most people are against free trade in general, while it enjoys a consensus view among economists.

You think legislative riders are dishonest? I think your portrayal of the TPP is dishonest. Why should I trust you, when you won't even address the specifics that SavanaJeff laid out?

EFF doesn't enjoy the same privileged access as corporate lobbyists, because we refuse to accept the non-disclosure obligations that the U.S. Trade Rep demands. If we did, we couldn't fulfill our mission which is to educate the public about the impacts of these agreements on their digital rights. Corporate lobbyists, which do not have a mission that includes public outreach about these agreements, don't have the same limitation. This is an example of how transparency rules that appear equal to all stakeholders on the surface, are actually biased in favor of industry.

Democracy IS complicated, but that's not an argument for allowing a few entrenched, privileged industries to decide policy for everyone is it? There are many ways to make policymaking more inclusive and representative of broader interests and constituents.

For starters, trade agreements need to be way more transparent. The U.S. Trade Representative could publish accurate, detailed descriptions of their policy objectives and proposals before the trade negotiating rounds, as they are beginning to do with the EU-US trade agreement (TTIP). They could set up official briefings with academic experts and civil society members about how those proposals would impact various public stakeholders (like libraries, people with disabilities, etc) and get their input about the considerations they should make when deciding other regulatory issues.

There are ton of tweaks we could make to the process to make sure that rules that entrench special private interests don't end up in there. We should really be asking ourselves if certain issues, like copyright policies, should be in trade agreements at all.

Is there a right way to harmonize IP, trade, and labor standards across countries?

Although it's not a perfect model, WIPO (World Intellectual Property Organization) shows that intellectual property (IP) rules can be harmonized with full public access to the negotiations and to the draft texts.

We can't speak to the other areas that you mention, except it's worth stating that the International Labor Organization (ILO) includes equal representation from governments, workers and employers in developing its rules. Along these lines, the future for Internet-related global policy development seems to be in a more multi-stakeholder model, where Internet users, not just governments, get to participate on an equal footing."

I suspect many TPP activists don’t feel comfortable relating threats to our internet freedom because we may feel it’s too complicated. Can specific threats be broken down and presented in lay terms with specific examples so we can share them on social media?

Definitely. We have this blog post that lays out the specific threats the TPP poses to different audiences, including students, artists, gamers, tinkerers, and others.

This is a pretty exhaustive list so we definitely encourage people to make memes or share any part of this info to spread the word about how it will affect every day people.

This is all IMO;

While your link is good, it's simply too overwhelming for the average person. If we want to fight TPP, you need to break these key points down into simple, almost meme like, posts that can be easily cross-shared on social media (I'd make some, but I suck at this stuff).

Example: If I link your above URL via facebook, maybe 10 people will click on it. Of those, maybe 1(?) will read it all. The rest will simply "Nope" out of the site. The result is sad -- people won't read enough. In turn, they won't get angry enough and thus they won't fight TPP.

Therefore, maybe making a meme (or 2 or 3..) for Each section?

Another example: The gamers section. Make a meme saying something like: "Do this? (show someone modding a game) Go to Jail. Thanks, TPP."

Or, show some ppl working on their cars, modifying them. Then show them in jail saying, "Thanks, TPP."

Show someone getting an award for creating strong encryption. Then show them in jail. Again, "Thanks, TPP."

Each meme can still link back to your site.

TL:DR - Your facts are awesome. Yet, you need to break this down into simple easy to share memes, comics, ... something...

The existing format will only overwhelm most people.

edit: typo

Thanks for the suggestions! Those are great ideas.

In this list, it appears you have chosen to illustrate the TPP as bringing new consequences to the people, but this one in particular caught my eye as already illegal. Is it not illegal already? If it is illegal already, why list it in as a TPP consequence?

Removing DRM or rights management information from textbooks, articles, or any kind of creative work could lead to criminal liabilities if they share the unlocked work with friends or fellow students.

(My understanding of "sharing" is providing digital copies.)

Yup it's already illegal in the U.S., but it could lead to bans for some other non-U.S. countries.

The problem for people in the U.S., and in other countries that already have this ban on circumventing DRM like Canada, New Zealand, Australia, and Chile, is that if we want to reform this law in the future. Lawmakers might be precluded from doing it because of the TPP and other existing international agreements with these rules.

We don't want to lock ourselves to rules that make it a crime to modify, repair, or otherwise tinker with our own legitimately purchased devices. It's clearly a law that must be reformed, so why should we let trade officials try and codify it into a massive trade agreement?

The IP chapter appears to just codify US law. I grant that there may be a downside to codifying the DMCA, etal., but isn't that the extent of the problem?

Thanks in advance for referencing specific provisions.

You're right that the TPP is essentially like the U.S. Digital Millennium Copyright Act (DMCA), but it doesn't carry all the existing protections that people in the U.S. enjoy under the DMCA. For example, the TPP doesn't carry fair use, so when other countries implement the TPP into their laws, they're already going to be at a disadvantage when they don't have the same protections on speech as we do in the U.S.

Overall, the TPP contains all the strict copyright enforcement measures, without any strong protections for users. It's a version of the DMCA that is even less balanced between the interests of creators and copyright holders versus everyone else who experiences and uses creative works—it's very much tipped in favor of the former.

But there are also problems with codifying an almost 20-year old copyright law into an international agreement. It's simply out of touch with how we experience the Internet and all our digital devices. Not only will all the countries become obligated to enact these out-of-date laws into their books, the TPP may make it more difficult for U.S. lawmakers to reform the law in the future. We're actually already in the midst of a (very drawn out) process to update copyright in the U.S., and the fear is that the TPP could restrain some badly needed common-sense updates to the DMCA.