In 2010, the leaked draft text of the Anti-Counterfeiting Trade Agreement (ACTA), a free trade agreement dealing with intellectual property rights and enforcement, was released on Wikileaks. ACTA eventually failed in the EU, amid protests that the negotiating process was undemocratic. In 2013-14, Wikileaks released the leaked IP chapter and environmental chapter of the Trans-Pacific Partnership Agreement (TPP), another free trade agreement. Both leaks led to considerable public debate over both the content of the agreement and the negotiating process.
The leaks of these free trade agreement drafts, and the reactions to them, point to friction between how trade law has customarily been negotiated—in relative secrecy—and the current demands of constituents excluded from the negotiating process. The leaks, and their policy effects, point to a need for a renewed discussion of trade and transparency in the Internet Age.
This issue is pressing, both at home and abroad. Congress is currently considering renewing Fast Track, the way in which trade gets negotiated in the United States, and there is an active domestic debate over whether Fast Track affords adequate accountability and transparency and leads to good policy. Globally, Trans-Pacific Partnership Agreement negotiations are ongoing, but whether the agreement will be successfully concluded is in doubt.
Free trade agreement negotiations, the argument goes, trade off democratic accountability for the sake of completing important trade agreements without interference from local protectionists. Now that free trade agreements contain complex regulatory subject matter—including detailed intellectual property provisions that impact Internet law and health policy—should they still be negotiated through comparatively opaque regimes? Is true opacity even possible in the Internet Age? Is there an ideal middle ground, allowing increased Congressional involvement, or for the public release of texts after a period of time?
These two panels will look at these questions from U.S. and international perspectives, considering whether trade lawmaking requires striking a unique balance between efficacy and transparency, and asking what that balance might be.