[Ip-health] USTR statement on use of NDAs to provide access to ACTA Internet text

[James Love]

http://keionline.org/node/666

Updated: USTR statement on use of NDAs to provide access to ACTA
Internet text

Updated October 16, 2009, 11:10 am

Yesterday USTR said the use of non disclosure agreements to selected
persons in the private sector to see ACTA negotiating texts is not a
"model" for the future. But in the elaboration of USTR's position, there
was nothing to suggest it will not be model. The key comment was that
USTR would perhaps require "different balancing between gathering
diverse and valuable input and maintaining the confidentiality necessary
for a productive negotiation.=E2=80=9D At the core of this statement is the
notion that you have to have confidentiality of the text, to have a
"productive negotiation." This theme has now been echoed by several of
the persons who have benefited from the recent NDA agreement -- people
who previously were more supportive of public disclosures of the
documents.

"One representative of an Internet firm hailed the NDA approach . . .
The source said that complete public disclosure would only lead to a
freeze in trade talks and said this is the objective of some of those
who advocate this position."

It is very clear to KEI that the NDA process has been a major set back
to civil society efforts to open up the ACTA process.


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Posted in part, with commentary, as a fair use.

Inside U.S. Trade - 10/16/2009
Erik Wasson

USTR Denies Non-Disclosure Agreements Are =E2=80=98Model=E2=80=99 For Futur=
e Deals

The Office of U.S. Trade Representative (USTR) this week denied that it
will from now on use non-disclosure agreements (NDAs) as a way to get
feedback on future trade deals from select stakeholders without risking
a breach of confidentiality.

This is the approach USTR has used with the draft Internet chapter of
the Anti-counterfeiting Trade Agreement (ACTA), and Jamie Love of
Knowledge Ecology International (KEI) said this week that he had been
told by a senior USTR official that was the =E2=80=9Cmodel=E2=80=9D for get=
ting feedback
on future trade deals.

=E2=80=9CNo, this should not be viewed as the model,=E2=80=9D a USTR spokes=
person said
this week. =E2=80=9CThe issues for the next round of ACTA negotiations are
complex and highly technical. In preparing for these negotiations, we
solicited the views from people with diverse interest who had the
technical expertise we needed to prepare for that round.=E2=80=9D

The spokeswoman said that some of these people were not members of the
formal advisory committees. Those members are subject to confidentiality
restraints and background checks.

She added that =E2=80=9Cnegotiations of future trade agreements may be
different, and may require a different balancing between gathering
diverse and valuable input and maintaining the confidentiality necessary
for a productive negotiation.=E2=80=9D

Love and others argue that the USTR approach actually undermines
government transparency by essentially buying off industries and
advocates with information, thereby weakening any coalition pushing for
greater public involvement in trade negotiations. =E2=80=9CThis is a brilli=
ant
move by USTR to muddy the waters,=E2=80=9D he said.

One representative of an Internet firm hailed the NDA approach however
and said it is especially important in the case of the ACTA which as an
executive agreement will not be submitted for review by Congress.

=E2=80=9CIf this were just a tariff negotiation, you could argue that all s=
ides
of the question are well represented on the advisory committees
already,=E2=80=9D the source said. =E2=80=9CIn new and highly technical are=
as such as an
agreement involving the Internet this makes a great deal of sense.=E2=80=9D

The source said that complete public disclosure would only lead to a
freeze in trade talks and said this is the objective of some of those
who advocate this position.

[snip]

One source said that USTR should regularly release the names of text
recipients rather that waiting for an advocacy group to FOIA-request the
names. Another source said that release of draft trade deals under NDAs
are no substitute for reform of the ITAC system, which should include
the creation of an Internet issues ITAC. Sources said that there have
been past instances where USTR has also used NDAs during free trade
agreement talks.

[snip]

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--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2670 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.=
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