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 a 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.” 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.

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

Inside U.S. Trade – 10/16/2009

Erik Wasson

USTR Denies Non-Disclosure Agreements Are ‘Model’ For Future 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 “model” for getting feedback on future trade deals.

“No, this should not be viewed as the model,” a USTR spokesperson said this week. “The 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.”

[snip]

She added that “negotiations 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.”

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. “This is a brilliant move by USTR to muddy the waters,” 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.

“If this were just a tariff negotiation, you could argue that all sides of the question are well represented on the advisory committees already,” the source said. “In new and highly technical areas such as an agreement involving the Internet this makes a great deal of sense.”

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]


Below is what was posted to this Blog yesterday, before the Inside U.S. Trade story ran:

Today USTR issued this statement on the use of the NDA to view the ACTA documents:

When asked, is this a model for the future, USTR said:

“no, this should not be viewed as the model.

However, USTR elaborated in ways that sounds like it is a model:

The 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. Some of these people were not members of our advisory committees. Negotiations 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.”

I think the important statement is at the end. USTR maintains that they need “the confidentiality necessary for a productive negotiation.”


For more background on the controversy over USTR’s use of NDAs and the ACTA text, see this page.

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