Obama administration sued over its secretive trade negotiations

December 18, 2013

(Saul Loeb/AFP/Getty Images)

For the last few years, the Obama administration has been negotiating a treaty known as the Trans Pacific Partnership. While the treaty is officially focused on promoting international trade, it also includes language on a number of other issues. One of them is the "intellectual property" section, which critics have warned could force the United States to adopt legal changes favorable to copyright holders.

But when critics of these policies have sought details about what the Obama administration is negotiating, they have been rebuffed. So on Wednesday, the news site IP Watch filed a lawsuit to force the U.S. Trade Representative to release more documents related to the treaty. The lawsuit argues that USTR failed to adequately respond to a Freedom of Information Act request the news organization filed more than a year ago.

"It's really only the American public that's been shut out of access to these documents," says Joshua Weinger, a law student at Yale. The Obama administration has shared some of the documents at issue in the lawsuit with foreign governments and others with domestic industry groups. But the documents are not available to the general public, and academics and public interest groups interested in IP issues have struggled to obtain information about the treaty.

Weinger is part of a team of students in Yale Law School’s Media Freedom and Information Access Clinic that has been helping IP Watch reporter William New seek access to TPP-related documents. With help from the MFIA, New filed a Freedom of Information Act request to USTR on Mar. 23, 2012. According to Wednesday's lawsuit, it took USTR nearly a year to respond to the request, and USTR refused to provide most of the documents New had requested.

Instead, USTR responded that the "draft text of the TPP, circulated among TPP negotiating parties is classified per Executive Order 13,526." That executive order relates to national security information. "It seems puzzling to us that any of these documents should be classified," Weinger argues, since the documents they're seeking relate to copyright and patent law, not normally regarded as national security issues.

USTR also declined to provide information about correspondence between USTR and industry groups, arguing that the communications fell under the "deliberative process privilege," designed to protect the confidentiality of the executive branch's internal deliberations.

USTR spokeswoman Carol Guthrie disputes Weinger's claim that the TPP negotiating process has been secretive. "The reality is that TPP negotiations have been more transparent and consultative than any U.S. trade agreement in history while maintaining the confidentiality appropriate for a government-to-government negotiation," she said in an e-mailed statement. "Releasing internal deliberative documents would undermine U.S. leverage in negotiations and impair our ability to pursue the strongest possible outcomes on issues ranging from labor and environmental protections to market access for U.S. goods and services."

Guthrie also faulted the IP Watch lawsuit for "factual misrepresentations," including what she described as "the inaccurate assertion to the court that only industry representatives have access to the draft negotiating text."

It's true that some non-industry groups have access to the text. For example, there are advisory committees for labor unions and environmental groups. But the IP Watch lawsuit is focused on the TPP's IP provisions. Guthrie wasn't able to identify non-industry groups focused on those issues that have been granted access to confidential documents.

Guthrie also stressed that USTR has worked extensively with Congress. "USTR has held more than 1,100 separate meetings on the TPP with Members of Congress and with their staffs, to make sure the people's representatives know what's being negotiated and get to shape the talks," she said.

But Weinger argues that's not good enough. In his view, the public should have access to information about the TPP. "The treaty could have profound effects on intellectual property rights," he says. "It will affect everybody, because everyone uses patented technology and copyrighted works."

Correction: This post originally identified the plaintiff as Michael New. He is William New. We regret the error.

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