It is difficult to imagine that public interest activists receiving similar tight-knit treatment, even if they also could be considered experts, observes William New.
While a full range of stakeholders would be affected by the outcome of the Trans-Pacific Partnership (TPP) agreement under secret negotiation by the United States and a dozen trading partners, corporate representatives have had a special seat at the negotiating table, as shown by hundreds of pages of confidential emails from the US Trade Representative’s office obtained by Intellectual Property Watch.
The emails give a rare and fascinating perspective on how policy is developed in the trade office.
Years into the negotiation, the TPP is said to be nearing completion and is the subject of a US congressional debate over renewal of fast-track negotiating authority for the president (limiting Congress to a yes or no vote). But the TPP text has never been made available to the public of the countries negotiating it, except through periodic leaks of parts of the text, making these emails timely for the debate.
Through a US Freedom of Information Act request, Intellectual Property Watch has obtained some 400 pages of email traffic between USTR officials and industry advisors. Most of the content of the emails is redacted (blacked out), but they still give insight into the process.
[Update: the Electronic Frontier Foundation (EFF) has created a searchable version of the documents, here.]
The FOIA request is the subject of a lawsuit brought on behalf of IP-Watch by the Yale Law School Media Freedom and Information Access Clinic. Intellectual Property Watch does not take a position on trade negotiations, but has argued that the extreme secrecy of the TPP has made it too difficult to write meaningful stories about the negotiations. Typical press stories are limited to the dates of meetings and the list of agenda items, with no detail.
[Note: The ongoing lawsuit by Yale and IP-Watch that led to the advisor emails being released is also trying to make the TPP text public, and is awaiting a decision from the court.]
What is striking in the emails is not that government negotiators seek expertise and advice from leading industry figures. But the emails reveal a close-knit relationship between negotiators and the industry advisors that is likely unmatched by any other stakeholders.
Records of engagement with other stakeholders, such as members of Congress, small businesses, public interest advocacy groups, academics, or any other “non-cleared” advisors, were not requested by IP-Watch, so it is not possible to directly compare their level of access. But it is difficult to imagine that, for instance, activists representing the general public interest would receive this level of tight-knit treatment, even if they also could be considered experts.
The cleared advisors in the email exchanges represent a range of industries and companies, including law firms. Among them are (in no particular order) Recording Industry Association of America, PhRMA, General Electric, Intel, Cisco, White and Case, Advanced Medical Technology Association (AdvaMed), Motion Picture Association of America, Wiley Rein, Entertainment Software Association, Fanwood Chemical, American Chemistry Council, CropLife, Medtronic, American Continental Group consultants, and Abbott. There is also an exchange with generics pharmaceutical industry representatives.
Many of the industry representatives are themselves former USTR officials.
Examples of exchanges
Exchanges between officials and industry cover just about any topic affecting the TPP that came up during the period, such as expansion of the TPP to include Japan and other countries, a transparency agreement among negotiating countries, a public statement by USTR about access to medicines, Canada and culture, US patent reform, IPR and environmental information, software patentability, relations with the European Union, other trade agreements and international developments, and as expected numerous consultations over elements of the draft treaty text.
For instance, General Electric Aviation division representative Tanuja Garde asks, “On trade secrets, can you share the language you tabled or discuss by phone?”
To which the USTR official Probir Mehta answers, “Let’s chat; How about sometime Monday?”
Elsewhere, Garde writes to Mehta: “I heard about what was tabled in Dallas – great job. Have you briefed the Chamber? [referring to the US Chamber of Commerce, an industry association]
Mehta replies: “Thanks Tanuja – actually the thanks go to you and Joe!” [referring to USTR official Joe Whitlock] We’ve briefed the US Chamber led TPP IP Task Force last week.”
A number of other big companies are included in discussions on trade secrets, such as DuPont, Corning, Microsoft and Qualcomm.
In another example, Entertainment Software Association (ESA) Vice President Stevan Mitchell provides a draft ESA analysis on technological protection measures (TPM) in the negotiation.
The USTR reply is, “Are you free next week for lunch at some point?”
Jennifer Sanford of Cisco Systems engaged on TPP and supply chain issues. Greg Slater of Intel provided a memo on an undisclosed topic. Timothy Brightbill of Wiley Rein is asked on short notice to provide language on state-owned enterprises (SOE) for a government interagency proposal.
RIAA reviewed the telecommunications chapter and had questions, discussed a “selected ITAC members’ re posted TPP copyright and enforcement text,” made comments on language regarding internet service providers, and provided information about legitimate online music services available in New Zealand.
The International IP Alliance also weighed in on the copyright and enforcement text. In addition, copyright industry representatives sent their views on copyright limitations and exceptions and secondary liability options, and safe harbors.
An ITAC is a USTR Industry Trade Advisory Committee, for which there are several by industry sector.
At one point early on, Doug Nelson of CropLife said his team had been lobbying government officials in Kuala Lumpur and Vietnam on “agchemical data protection,” and that “their reception to our TRIPS Article 39.3 emphasis on data exclusivity was very positive.” He asked if CropLife could make a presentation at an upcoming round of TPP talks in New Zealand or if there was a spot on the US delegation for a representative.
USTR official Stan McCoy replied simply that they did not know how the New Zealand government was going to handle private sector side meetings.
In another email in 2011, McCoy told GE lobbyists, “In case your CEO will be at the patent reform bill signing, I wanted to let you know that NZ Trade Minister Tim Groser is planning to attend. It would be a lovely opportunity for a CEO to turn to him and, for example, encourage NZ to support a strong IP chapter in the TPP…”
At another point, Jim DeLisi of Fanwood Chemical said he had just seen the text on rules of origin, and remarked, “Someone owes USTR a royalty payment. These are our rules. … This is a very pleasant surprise.”
In a further example, Ralph Ives of AdvaMed had an exchange with Barbara Weisel of USTR about a CEO letter on TPP.
Weisel said she would not comment until she had seen the letter, and “please don’t name names of negotiators in the letter, although I appreciate the thought.”
Ives responds apparently with a draft of the letter, saying, “I’m not asking you to edit, of course, but let me know if something like this would be ok to send.”
Weisel responds with a request to meet with him on it before he sends anything, and proceeds to make meeting arrangements.
Elsewhere, AdvaMed is involved in a discussion about technical barriers to trade (TBT).
An Australian medical industry association is included in direct engagement with USTR officials.
Among other things the emails show is that negotiators – and industry representatives – work very hard and long hours, including weekends and holidays, with countless trips around the world.
It also seems clear that USTR officials try to stay within the rules they are given, and may not even agree with level of secrecy of the talks. At one point in 2012, Jared Ragland, director of the USTR Office of Intellectual Property and Innovation, tells a lobbyist, “Happy to have a quick call with you, and interested members, if necessary, altho ugh [sic] I can’t really talk text with non-CAs as you know” (referring to non-cleared advisors).
And at another point, there is a reference made to a request by USTR lead negotiator Barbara Weisel for industry not to keep repeating itself.