Et tu, Obama? Open Government Suffers Another Blow

A government cannot be held accountable if there is a cloak of secrecy around its core deliberations and citizens are excluded from the process. Barack Obama’s presidential campaign was supposedly about changing all that. Obama declared that only transparency could restore the citizen trust in government — a trust that the Bush administration had systematically abused.

So what gives with the Obama administration’s refusal to share the most basic documents about a pending intellectual property treaty that are widely available among corporate lobbyists in Europe, Japan and the United States?

The Anti-Counterfeiting Trade Agreement, or ACTA, may sound arcane, and certainly its corporate champions must wish to make it seem boring and obscure. But in fact, the misleadingly named treaty could dramatically alter the Internet by allowing the film, music, publishing and other industries to aggressively enforce their IP rights, as they broadly construe them, at the expense of citizens, consumers and creators. All this would be achieved through secret deliberations — an international version of the smoke-filled room: another brazen disenfranchisement of citizens and trampling of democratic norms.

No official version of the proposed treaty has been released, but it is known that it seeks to set forth standards for enforcing cases of alleged copyright and patent infringement. The treaty also seeks to provide legal authority for the surveillance of Internet file transfers and searches of personal property. Read more about ACTA here and here.

Not only is the Obama administration quietly endorsing some of the Bush principles of executive power (see Glenn Greenwald at, it is endorsing the kind of backchannel policymaking that Cheney and Rumsfeld made standard operating procedure during the Bush years. The ACTA treaty is moving ahead outside of conventional venues for policymaking. It is not occurring at the World Intellectual Property Organization and World Trade Organization, where some modicum of openness would prevail. Rather, it is being negotiated through a kind of private network of, by and for invited corporate insiders. (It is perversely amusing that the new process bypasses WIPO and WTO, which, in their earlier guises, also functioned as stealth “work-arounds” to avoid Congress and other open, democratic forums).

Why all the secrecy about a treaty that seeks to fight “counterfeiting”? It is hard to know for sure because the U.S. Trade Representative’s office has released so little information. Among many public interest critics, it is suspected that ACTA is intended to be a Trojan horse — a way to smuggle in all sorts of new and expansive powers for IP industries that would be quickly rejected if subjected to open, democratic deliberation.

For example, the definition of “counterfeit goods” is vague and amorphous, and seemingly could apply to all sorts of unauthorized uses of a work, even if they are currently legal under U.S. law, such as fair use of a copyrighted work. Similarly, Internet Service providers, who currently have no obligations to police their Internet traffic for copyright-infringing works (thanks to a “safe harbor” clause in U.S. law), might be legally compelled to become copyright police for the film and music industries. Imagine the RIAA campaign against file-sharers on steroids.

ISPs could also be required to disclose personal information about Internet users, with none of the due process or judicial oversight that ought to govern such surveillance and disclosure. It is also suspected that the new treaty text would step up the penalties for violations of IP law. Needless to say, such powers would jeopardize the civic freedoms of the Internet and profoundly change its basic character.

So is the Obama Administration cynical, hypocritical or just inept in its implementation of “transparency” in government? On his first day in office, President Obama issued a memorandum, “Transparency and Open Government,” which directed the heads of all executive departments and agencies to function with maximum transparency and public participation. Obama declared:

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

Yet here we have the White House Office of U.S. Trade Representative declaring that the terms of the proposed IP treaty are essentially a state secret and that backchannel policymaking, insulated from any public scrutiny, is fine, just fine.

Info-warrior James Love writes in a blog post that his group, Knowledge Ecology International, has requested seven specific documents that contain the proposed text for that ACTA treaty under the Freedom of Information Act. In response to Love’s FOI request, the White House Office of the U.S. Trade Representative refused to release the ACTA documents. It stated that the information about the treaty “is properly classified in the interest of national security pursuant to Executive Order 12958.” So intellectual property has risen to the status of “national security”!

What makes this determination so galling is that fact that proposed language for the treaty is widely available to corporate lobbyists. As Love writes:

The texts are available to the Japanese government. They are available to the 27 member states of the European Union. They are available to the governments of Canada, Mexico, New Zealand, Australia. They are available to Morocco, and many other countries. They are available to “cleared” advisers (mostly well connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries. But they are a secret from you, the public.

Worse, the process for advancing these policies will continue to be pursued in absolute silence, with privileged access and participation by corporate lobbies and only token levels of public participation that necessarily relies upon conjecture and shreds of leaked information. (What little is known about the ACTA treaty comes from a discussion memo posted on Wikileaks.) r Now this is a fine role for the “transparency in government” administration: to bless secret negotiations that would significantly weaken the democratic capacities of its citizenry!

The process for negotiating the ACTA treaty is especially troubling, explains Public Knowledge, because it is being cast as an “executive agreement” rather than as a “treaty.” “Executive agreements do not require Congressional approval before they may take effect,” PK notes. “As a result, there is little to keep the signatories accountable to the public….”

It appears that the ACTA “executive agreement” is also designed to achive a “policy laundering.” As PK explains:

“Policy laundering is the use of international treaties or other agreements to justify the passage of controversial legislation within one’s own country. The idea is that, once there is an international agreement committing the US to certain policies, there will be greater leverage applied on US legislators to make those policies a reality. This process was used in the passage of the DMCA in 1998 and is ably described in the ACTA context here.”

President Obama: We will judge you and your administration by your deeds, not just your words. Before this ACTA travesty advances any further, will you apply the same standards of transparency, public participation and accountability to the ACTA negotiations as you aspire to apply to the U.S. Government? Could you please explain your significant and troubling departure from your campaign pledges and from your January 21 memorandum to executive branch agencies?