The error of fast tracking the Trans Pacific Partnership Agreement
Elon Law Professor David Levine calls for the public release of the Trans Pacific Partnership Agreement, challenges the secret process by which the agreement was created and says "fast track" authority by Congress will result in the exclusion of expert and public input that could improve the international agreement.
Professor Levine's statement follows:
"National media reported yesterday that a Congressional agreement has been reached on so-called 'fast track' authority for the Trans Pacific Partnership Agreement (TPP). This international agreement, having been negotiated under extreme secrecy by 12 countries including the United States, Australia, Canada, Japan, Malaysia and Singapore, is supposed to be an 'ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. economic priorities and values.' Indeed, if it comes into effect, it will be the largest such agreement in history, covering some 800 million people. Unfortunately, its chances of meeting that laudable goal have been severely diminished by the aforementioned secrecy.
"In theory, 'fast track' authority should allow the President to more thoroughly and forcefully negotiate trade agreements with other governments by streamlining the domestic political process. By eliminating much of Congress’ review and amendment process that could force the TPP negotiators back to the table, 'trade promotion authority' allows for complex international trade agreements to receive a swift and decisive Congressional sign-off. However, because the TPP has been negotiated largely in secret, with only a precious few outside the government (almost exclusively representing the entertainment and pharmaceutical industries) privy to its text, fast track will have the effect of eliminating the last possibility for anyone outside the above select few to change the contours of the agreement. That’s a significant concern, as the TPP (based upon leaks) covers issues ranging from access to medicine to liability for linking to allegedly copyright-infringing content on the Internet. Democracy deserves better.
"To be sure, even without fast track, the chances of realistically being able to change the TPP once it hits Congress would be slim. Requiring negotiators to go back to the table after the TPP text is agreed upon in international negotiations is a significant undertaking that would be discouraged. But with fast track in place, the chances of offering any meaningful amendments to the final text are near zero. As a result, the moment that TPP’s negotiators announce that they have a final text will also be the effective end of the opportunity for small businesses, labor, civil society groups, and even the public generally, to impact the provisions of the agreement. Their only play will be to oppose TPP outright (which, in fairness, some may do regardless of how TPP was negotiated).
"The very secrecy around TPP could be its undoing, as it was with the failed Anti-Counterfeiting Trade Agreement. Therefore, it is well past the time that the negotiators should make the text public. If it isn’t released, and soon, 'fast track' could become a fast track to failure of this multi-year negotiating process – which, depending on the terms of the agreement, could be the right result."
David S. Levine is an Associate Professor of Law at Elon University School of Law and an Affiliate Scholar at the Center for Internet and Society at Stanford Law School (CIS). He is a 2014-2015 Visiting Research Collaborator at Princeton University's Center for Information Technology Policy (CITP). His scholarship, which has been published in several law reviews including Florida, North Carolina and Stanford Online, focuses on the operation of intellectual property law at the intersection of technology and public life, specifically information flows in the lawmaking and regulatory process and intellectual property law's impact on public and private secrecy, transparency and accountability.
Active in policy analysis, he has made presentations to the negotiators at several negotiating rounds for the Trans Pacific Partnership Agreement (TPP), testified before the Library of Congress, co-authored influential law professors’ letters regarding the TPP, Stop Online Piracy Act (SOPA) and the Anti-Counterfeiting Trade Agreement (ACTA), and is a member of the North Carolina Mining and Energy Commission's Protection of Trade Secret and Proprietary Information Study Group that is tasked with writing the state's hydraulic fracturing regulations. Having been interviewed and quoted in many media outlets, from NPR to the Los Angeles Times, he is a recurring contributor to Slate.