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International Trade Law and Information Policy: A Recent History

Published online by Cambridge University Press:  28 February 2019

Genevieve Tung
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Extract

In September 2008, the United States Trade Representative (USTR) announced the United States’ intention to join Singapore, New Zealand, Brunei, and Chile in what was then called the Trans-Pacific Strategic Economic Partnership Agreement, a preferential trade agreement. Since then, the agreement has grown in scope and ambition. The negotiations to create what is now known as the Trans-Pacific Partnership (TPP) have expanded to include seven other nations. The USTR wants the TPP to be “an ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. economic priorities and values.” According to the USTR's webpage dedicated to the agreement, the administration is “working in close partnership with Congress and with a wide range of stakeholders, in seeking to conclude a strong agreement that addresses the issues that U.S. businesses and workers are facing in the 21st century.”

Type
Articles
Information
International Journal of Legal Information , Volume 42 , Issue 2 , Summer 2014 , pp. 241 - 292
Copyright
Copyright © 2014 by the International Association of Law Libraries. 

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References

1 Press Release, United States Trade Representative, Trans-Pacific Partners and United States Launch FTA Negotiations (Sept. 22, 2008). The agreement was first commonly known as the “Pacific 4” or “P4” agreement. See Peter K. Yu, TPP and Trans-Pacific Perplexities, 37 Fordham Int'l L.J. 1129, 1130 (2014).Google Scholar

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32 At the Second Hague Peace Conference in 1907 a private citizen, enthusiastic peace advocate, and unofficial “delegate at large” named William T. Stead took it upon himself to record the entire proceedings for posterity: The Second Conference, like the First, desired to conduct its proceedings in private, but decided to supply certain information to the public, in such form and in such quantities as not to interfere with the orderly course of its deliberations. But the Conference was very large, and it might well happen that delegates…might not be fully abreast of the proceedings…. Mr. Stead established, published, and supplied at his own expense to the members of the Conference, a daily chronicle of its proceedings…. including the official and social life, contained accounts of the meetings, abstracts of reports, and at times the full text of important addresses….it is not too much to say that [Stead's publication] gives the best daily picture of the Conference, its hopes, its fears, its actual work, which is likely to appear. Scott, James Brown, 1 The Hague Peace Conferences of 1899 and 1907 172–173 (1909).Google Scholar

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37 Id. at 67. This is possibly the first time that social opposition to international trade policy emerged as a policy issue.Google Scholar

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52 Id. at 707.Google Scholar

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56 This continuous publication has undergone several name changes and is now called simply Foreign Relations. An earlier work, Digest of the Published Opinions of the Attorneys-General, and of the Leading Decisions of the Federal Courts, with Reference to International Law, Treaties and Kindred Subjects, was edited by Assistant Secretary of State John L. Cadwalader in 1877; it was a single-volume of less than 300 pages.Google Scholar

57 Wharton, Francis, A Digest of the International Law of the United States (1886). The Digest was revised and expanded by Professor John Bassett Moore in 1906. A subsequent Digest of International Law, prepared by Green Haywood Hackworth, was published beginning in 1940; this Digest did not reprint material from the earlier versions. The most recent iteration of this work, prepared by Marjorie M. Whiteman, was first published in 1963 and does not revisit material from Hackworth or the earlier publications.Google Scholar

58 Reinsch, supra note 17, at 196.Google Scholar

59 Charnovitz, supra note 45, at 271.Google Scholar

60 Id. at 192.Google Scholar

61 Id. at 194.Google Scholar

62 Id. at 198.Google Scholar

63 Id. at 201.Google Scholar

64 Id. at 208-209. See also H. Rep. No. 62-438 (1912) (regarding the Fifth International Congress of Chambers of Commerce).Google Scholar

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67 Reisman, W. Michael, The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application, in Developments of International Law in Treaty Making 22 (R. Wolfrum & V. Roben eds. 2005).Google Scholar

68 The Trade Reform Act of 1973: Hearings Before the S. Comm. on Finance, 93rd Cong. 216 (Mar. 5, 1974) (testimony of Ambassador William D. Eberle, Special Representative for Trade Negotiations).Google Scholar

69 See generally Section VI, infra.Google Scholar

70 See Alvarez, supra note 25, at 218 (describing the use of ad hoc conferences as the “fundamental mechanism” for multilateral treaty-making in the 19th century).Google Scholar

71 Reinsch, supra note 17, at 15-16.Google Scholar

72 See Alvarez, supra note 25, at 227 (“The very existence of [international organizations] conditions the traditional use of state power.”).Google Scholar

73 See id. at 223.Google Scholar

74 Id.Google Scholar

75 Malcolm, Jeremy, Public Interest Representation in Global IP Policy Institutions, PIJIP Research Paper No. 6, American University College of Law (Sept. 2010) at 18, available at http://digitalcommons.wcl.american.edu/research/6/ (last visited Jul. 24, 2014). Malcolm is a senior policy analyst at the Electronic Frontier Foundation and currently a Steering Committee member of the OECD's Civil Society Information Society Advisory Council.Google Scholar

76 Id. But see Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 Va. J. Int'L L. 369, 381 (1997) (describing her analysis of the defeat of certain U.S. proposals at WIPO through analysis of draft treaties and alternative language proposals offered during the conference, suggesting broad and timely access to relevant documents).Google Scholar

77 Andrew G. Brown, Reluctant Partners: A History of Multilateral Trade Cooperation 152 (2003).Google Scholar

78 Barfield, Claude E., Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization, 2 Chicago J. Int'l L. 403, 403 (2001).Google Scholar

79 Goldman, Patti, The Democratization of the Development of United States Trade Policy, 27 Cornell Int'l L.J. 631, 646-644 (1994).Google Scholar

80 A treaty, by any other name, is an “international agreement concluded between States in written form and governed by international law.” Vienna Convention of the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 2(1)(a). In the United States, the Constitution vests treaty-making authority with the President, with the advice and consent of the Senate. U.S. Const., art. II, §2. By some estimates, however, only approximately five percent of international agreements to which the U.S. is a party have been subject to this formal approval process. See Sean D. Murphy, Principles of International Law 208 (2006). These non-treaty agreements are referred to as “executive agreements” or “congressional-executive agreements” and are sanctioned by other legal mechanisms. See id. at 208-210; see also Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236, 1239 (2008). Such agreements have become more common over time, in part because they may elude certain kinds of political gridlock in Congress. See id. at 1287, 1312–1316. They can be frustrating, from a researcher's perspective, because there is “no single comprehensive database available that delineates solo executive agreements, congressional-executive agreements, and Article II treaties.” Id. at 1253. These distinctions are irrelevant to the nations on the other side of the table, who consider all concluded agreements to be on equal footing. See Treaties and Other International Agreements: The Role of the United States Senate, S. Rpt. 106-71 (Jan. 2001), at 4.Google Scholar

81 This includes U.S. regulatory law. See generally Sidney A. Shapiro, International Trade Agreements, Regulatory Protection, and Public Accountability, 54 Admin. L. Rev. 435 (2002).Google Scholar

82 See Golan v. Holder, 132 S. Ct. 873, 874 (2012). The Berne Convention took effect in 1886, but the United States did not become a party to the treaty until 1989, and did not actually implement the relevant provision of the Berne Convention until 1994, pursuant to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Id.; see also Uruguay Round Agreements Act, Pub. L. 103-465, 108 Stat. 4809 (Dec. 8, 1994).Google Scholar

83 Golan v. Holder, 132 S. Ct. at 874.Google Scholar

84 Id. at 894.Google Scholar

85 See Section V(D), infra; see also Yu, supra note 14, at 1019-1021.Google Scholar

86 See Simon Lester, The Role of the International Trade Regime in Global Governance, 16 UCLA J. Int'l L. & Foreign Aff. 209, 221-222 (2011). 87 Hathaway, supra note 80, at 1272.Google Scholar

88 19 U.S.C. 2171(c); see also John H. Jackson, The World Trading System 98 (2d ed. 1997). The role of today's USTR dates back just over fifty years. In January 1963, President John F. Kennedy signed Executive Order 11075 creating the Special Representative for Trade Negotiations within the Executive Office of the President. Exec. Order 11,075, 28 Fed. Reg. 473, Sec. 2(a) (Jan. 18, 1963); subsequently amended by Exec. Order 11,106, 28 Fed. Reg. 3,911, Sec. 3 (Apr. 20, 1963); Exec. Order 11,113, 28 Fed. Reg. 6,183 (June 13, 1963). This order provided for the administration of the Trade Expansion Act of 1962, Pub. L. 87-794, 76 Stat. 872 (1962). The Special Representative was tasked with advising and assisting the President in all matters related to the negotiation or administration of trade agreements, other than treaties. Exec. Order 11,106, 28 FR 3,911, §§ 2, 4 (Apr. 20, 1963). Originally called the office of the Special Representative for Trade Negotiations, it received a new title under the Trade Act of 1974, which also provided a legislative charter and made the Office accountable to Congress, as well as the President. Pub. L. 93-618, 88 Stat. 1978, § 141(b)(3)(B) (directing the Special Representative to “report directly to the President and the Congress, and be responsible to the President and the Congress for the administration of trade agreements programs under this Act, the Trade Expansion Act of 1962, and section 350 of the Tariff Act of 1930) and 141(b)(3)(C) (requiring the Special Representative to “be responsible for making reports to Congress” with respect to its duties). In an accompanying report, the Senate finance committee stated that “[i]t is essential that the Congress, which as the constitutional authority to lay and collect duties and to regulate commerce with foreign nations, provide a mandate for the Executive to enter into [international trade] negotiations. It is also essential, however, that the Congress and the various segments of our economy which are likely to be importantly affected by trade negotiations, be fully involved in the negotiating process.” S. Rept. 93-1298 at 69 (1974).Google Scholar

89 15 C.F.R. § 2008.4 (2013). Consistent with the general guidelines for the classification of government documents, USTR information that has been classified since December 1, 1978 is subject to automatic declassification after six years. 15 C.F.R. §2008.6 (a) (2013).Google Scholar

90 Exec. Order 13,526, Sec. 1.4(b), 3 C.F.R. 298 (2010). “Foreign government information” is a very broad category, encompassing: (1) Information provided to the United States Government by a foreign government or governments, an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence; (2) Information produced by the United States Government pursuant to or as a result of a joint arrangement with a foreign government or governments, or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence; or (3) Information received and treated as ‘foreign government information’ under the terms of a predecessor order. Id. at §6.1(s).Google Scholar

91 See Goldman, supra note 79, at 667.Google Scholar

92 See notes 256-257, infra, and accompanying text.Google Scholar

93 See 5 U.S.C. §552 (2012); see also Marsha West, Classified Information Policy, Government Transparency, and WikiLeaks, DttP: Documents to the People, Summer 2013, at 13.Google Scholar

94 See, e.g., Vladeck, David C., Information Access—Surveying the Current Legal Landscape of Federal Right-to-Know Laws, 86 Tex. L. Rev. 1787, 1797 (2008).Google Scholar

95 H. Rept. 89-1497 (1966) at 27 (“Clarifying and Protecting the Right of the Public to Information”).Google Scholar

96 5 U.S.C. §552(b)(1) (2013) (exempting material “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.”). FOIA also exempts “trade secrets and commercial or financial information obtained from a person and privileged and confidential” and “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §552(b)(4), (5) (2013).Google Scholar

97 15 C.F.R. § 2001.4 (2013). It is unsurprising, then, that a report prepared by the USTR's Chief FOIA Officer found that “[t]he majority of FOIA requests [to the USTR] require special handling.” Office of the United States Trade Representative, FOIA Plan Under Executive Order 13,392 (2006), available at http://www.ustr.gov/sites/default/files/Office-of-the-US-Trade-Representative-FOIA-Plan.pdf. Executive Order 13,392 required federal agencies to conduct internal audits to assess their FOIA compliance and promote a “citizen-centered and results-oriented approach.” Exec. Order No. 13,392, Section 1(d), 3 C.F.R. 216 (2006).Google Scholar

98 Final Brief for the Appellants, Nov. 27, 2012, Center for International Environmental Law v. Office of the United States Trade Representative, 12-5136 (D.C. Cir.), at 26.Google Scholar

99 For example, see Brayton v. Office of the United States Trade Representative, 657 F. Supp. 2d 138 (D.D.C. 2009). In 2008, the non-profit public interest advocacy organizations Electronic Frontier Foundation and Public Knowledge sued USTR seeking records related to ACTA, then under negotiation. Complaint, Electronic Frontier Foundation v. Office of the United States Trade Representative, 1:08-CV-1599-RMC, Sep. 17, 2008. The plaintiffs ultimately dropped the suit after it became clear that ACTA would likely be concluded (and its terms become public) before the resolution of the litigation. Press Release, EFF and Public Knowledge Reluctantly Drop Lawsuit for Information About ACTA (June 17, 2009), available at https://www.eff.org/press/archives/2009/06/17 (last visited Jul. 24, 2014).Google Scholar

100 See, e.g., Center for Nat. Sec. Studies v. U.S. Dept. of Justice, 331 F.3d 918, 927 (D.C.C., 2003). Under this structure, then, it is not surprising that FOIA requests for information withheld under the NSI exception are less likely to succeed than requests that confront other FOIA exceptions. See Katt, supra note 23, at 694.Google Scholar

101 Center for International Environmental Law v. Office of the United States Trade Representative, 718 F.3d 899 (D.C.C. 2013).Google Scholar

102 Center for International Environmental Law v. Office of the United States Trade Representative, 845 F. Supp. 2d 252 (D.D.C. 2012).Google Scholar

103 Id. at 253-254.Google Scholar

104 Id. (“[I.]e., when ‘national’ treatment or ‘most-favored-nation’ treatment applies.” Id.Google Scholar

105 The document was classified pursuant to then-governing Executive Order 12,958 § 1.2(a)(4), which was subsequently revoked by Executive Order 13,526.Google Scholar

106 Center for International Environmental Law, 845 F. Supp. 2d at 255.Google Scholar

107 Id.Google Scholar

108 Id. at 260.Google Scholar

109 Center for International Environmental Law v. Office of the United States Trade Representative, 718 F.3d 899, 903 (2013).Google Scholar

110 Id. (internal citations omitted) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982).Google Scholar

111 Federal Advisory Committee Act, 5 U.S.C. [Appendix] § 2(a), (b) (2012).Google Scholar

112 5 U.S.C. [Appendix] § 2(b)(2).Google Scholar

113 5 U.S.C. [Appendix] § 2(b)(3) (2012).Google Scholar

114 5 U.S.C. [Appendix] § 5 (2012).Google Scholar

115 5 U.S.C. [Appendix] § 10(a), (b) (2012).Google Scholar

116 19 U.S.C. §2155(a)(1)(A)-(C)(2012).Google Scholar

117 19 U.S.C. §2155(b)(1) (2012). The current membership of the committee is published on the USTR's website, http://www.ustr.gov/about-us/intergovernmental-aflairs/advisory-committees/advisory-committee-trade-policy-and-negotiati (last visited Jul. 24, 2014) and includes representatives from Congress, private companies, organized labor, think tanks, and non-profit issue-oriented organizations.Google Scholar

118 United States Trade Representative, Industry Trade Advisory Committees (ITAC), http://www.ustr.gov/about-us/advisory-committees/industry-trade-advisory-committees-itac (last visited Jul. 24, 2014).Google Scholar

119 The Trade Reform Act of 1973: Hearings Before the S. Comm. on Finance, 93rd Cong. 293 (Mar. 5, 1974) (prepared statement of Ambassador William D. Eberle, Special Representative for Trade Negotiations) (hereinafter Eberle statement).Google Scholar

120 19 U.S.C. §2155(f)(1), (2) (2012).Google Scholar

121 5 U.S.C. §552b(c)(1) (2012).Google Scholar

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123 See Levine, David S., Bring in the Nerds: Secrecy, National Security, and the Creation of International Intellectual Property Law, 30 Cardozo Arts & Ent. L.J. 105, 116 (2012) (“Today … the public does not get useful information from government whereas private companies do. Thus, private corporate interests largely control the flow of information to USTR.”).Google Scholar

124 In Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 108 (D.C.C. 1976), the D.C. Circuit declined to hold that “the mere disclosure of an intra-agency memorandum to an advisory committee makes the memorandum public information to which exemption five is inapplicable.”Google Scholar

125 Id. at 107-108.Google Scholar

126 See Yu, supra note 14, at 1012 (describing application of this practice in the development of ACTA); Goldman, supra note 79, at 672-674.Google Scholar

127 E.g., Yu, supra note 14, at 1012-1013.Google Scholar

128 U.S. Const. art. I, §8, cl. 3.Google Scholar

129 “The executive champions functional utility. The demos argues for the supremacy of the democratic process.” Franck & Weisbrand, supra note 25, at 4.Google Scholar

130 See, e.g., Katt, supra note 24, at 691 (citing examples). Secret negotiations, of course, can just as easily shield diplomats making unoriginal or poor decisions, or acting at the behest of self-interested advisors.Google Scholar

131 Pub. L. 73-316, 48 Stat. 943 (1934).Google Scholar

132 Id. at §4.Google Scholar

133 Id.Google Scholar

134 See also Brian J. Schoenborn, Note, Public Participation in Trade Negotiations: Open Agreements, Openly Arrived At? 4 Minn. J. Global Trade 103, 108-109 (1995).Google Scholar

135 See Laura L. Wright, Trade Promotion Authority: Fast Track for the Twenty-First Century?, 12 William & Mary Bill of Rights J. 979, 984 (2004).Google Scholar

136 See 1 Charan Devereaux, Robert Z. Lawrence & Michael D. Watkins, Case Studies in U.S. Trade Negotiation 193 (2006).Google Scholar

137 See Pub. L. 93-618, 88 Stat. 1978 (1975), § 151 et seq.; see also Wright, supra note 135, at 984.Google Scholar

138 See Wright, supra note 135, at 984 n. 47.Google Scholar

139 See 88 Stat. 1978 at §135.Google Scholar

140 See id at § 151(d).Google Scholar

141 The law was renewed in 1979, 1984, 1988, and 1991. See Trade Agreements Act of 1979, P.L. 96-39, 93 Stat. 144; Trade and Tariff Act of 1984, P.L. 98-573, 98 Stat. 2948; Omnibus Trade and Competitiveness Act of 1988, P.L. 100-418, 102 Stat. 1107; see also Devereaux, Lawrence & Watkins, supra note 136, at 195-197 (regarding “renewal” of Fast Track in 1991).Google Scholar

142 Devereaux, Lawrence & Watkins, supra note 136, at 194.Google Scholar

143 See id at 195.Google Scholar

144 See id at 201-202.Google Scholar

145 See id at 203-204.Google Scholar

146 E.g., Kevin C. Kennedy, The FTAA Negotiations: A Melodrama in Five Acts, 1 Loy. Int'l L. Rev. 121, 127 (2004) (describing how, in the absence of Fast Track authority, the United States’ ability to negotiate the FTAA was “completely hamstrung.”).Google Scholar

147 See Bipartisan Trade Promotion Authority Act of 2002, 19 U.S.C. §§ 3801-3813 (2012). In the wake of the terrorist attacks of September 11, 2001, the Bush administration argued that the U.S. should “counter terror with trade,” and that delegating negotiating authority to the executive branch would enable USTR to “build a coalition of countries that cherish liberty in all its aspects.” Robert Zoellick, Op-Ed., Countering Terror with Trade, Wash. Post, Sept. 20, 2001, at A35.Google Scholar

148 See Harold Hongju Koh, The Fast Track and United States Trade Policy, 18 Brooklyn J. Int'l L. 143, 161 (1992). Twenty years later Professor Koh, while on leave from Yale Law School to serve as Legal Adviser to the State Department, was the one to advise Senator Ronald Wyden that the Executive branch had determined that it was authorized to conclude and accept ACTA pursuant to the 2008 PROTECT-IP Act. Letter from Harold Hongju Koh, Legal Adviser, Dept. of State, to Sen. Ron Wyden (Mar. 6, 2012), available at http://infojustice.org/wp-content/uploads/2012/03/84365507-State-Department-Response-to-Wyden-on-ACTA.pdf (last visited Jul. 24, 2014).Google Scholar

149 See Koh, supra note 148, at 163-169.Google Scholar

150 Id. at 162.Google Scholar

151 The expiration of TPA before the conclusion of ACTA is likely the reason that the USTR initially insisted that ACTA was negotiated as a sole executive agreement (without need for implementing legislation) and eventually pinned its authority on the 2008 PROTECT-IP Act (Pub. L. 110-403, 122 Stat 4266 (2008), codified at 15 U.S.C. 8113(a) (2012)).Google Scholar

152 See, e.g., The Trans-Pacific Partnership: Opportunities and Challenges: Hearing Before the Senate Comm. on Finance, 113th Cong. 4 (Apr. 24, 2013) (statement of Sen. Orrin Hatch, Member, S. Comm. on Finance), 14 (colloquy between Sen. Hatch and witness Hon. Karan Bhatia); The Trans-Pacific Partnership Agreement: Challenges and Potential: Hearing Before the Subcomm. On Terrorism, Nonproliferation, and Trade of the H. Comm. on Foreign Affairs, 112th Cong. 5 (May 17, 2012) (statement of Rep. Edward Royce, Member, H. Comm. on Foreign Affairs); 15 (testimony of witness Linda Menghetti).Google Scholar

153 Bipartisan Congressional Trade Priorities Act of 2014, H.R. 3830, 113th Cong. (2014); Bipartisan Congressional Trade Priorities Act of 2014, S.1900, 113th Cong. (2014). The bills are identical.Google Scholar

154 H.R. 3830 § 4(d)(1)(A).Google Scholar

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158 Devereaux, Lawrence & Watkins, supra note 136, at 140-141.Google Scholar

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160 Salzman, James, Labor Rights, Globalization and Institutions: The Role and Influence of the Organization for Economic Cooperation and Development, 21 Mich. J. Int'l L. 769, 773 (2000).Google Scholar

161 Devereaux, Lawrence & Watkins, supra note 136, at 149. The OECD member nations, as of the spring of 1995, were Australia, Austria, Belgium, Britain, Canada, Denmark, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, and the U.S. See Organisation for Economic Cooperation and Development, Members and Partners, http://www.oecd.org/about/membersand_partners/list-oecd-member-countries.htm (last visited Jul. 24, 2014). Today the membership also includes Chile, the Czech Republic, Estonia, Finland, Hungary, Israel, Korea, Poland, the Slovak Republic, and Slovenia. Id.Google Scholar

162 See OECD Negotiations Begin on Multilateral Agreement on Investment, Agence Europe, Oct. 4, 1995.Google Scholar

163 Lachica, Eduardo, OECD Nations Ask Outsiders to Join Investment Treaty, Wall St. J., Nov. 9, 1995, at A17.Google Scholar

164 Devereaux, Lawrence & Watkins, supra note 136, at 155. The United States, however, did not support this position. Id.Google Scholar

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191 See World Trade Organization, What Is the WTO? What We Do, http://www.wto.org/english/thewto_e/whatis_e/what_we_do_e.htm (last visited Jul. 24, 2014). The WTO has in large part realized a foundational goal to become a “virtual treaty machine[].” Alvarez, supra note 25, at 221.Google Scholar

192 Barfield, supra note 78, at 403 (2001).CrossRefGoogle Scholar

193 Id. at 405.Google Scholar

194 See Same Howe Verhovek & Steven Greenhouse, National Guard is Called to Quell Trade-Talk Protests; Seattle is Under Curfew After Disruptions, N.Y. Times, Dec. 1, 1999, at A14.Google Scholar

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196 Smythe, Elizabeth & Smith, Peter J., Legitimacy, Transparency, and Information Technology: The World Trade Organization in an Era of Contentious Trade Politics, Global Governance, Jan.-Mar. 2006, at 41.Google Scholar

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198 Maria Perez-Esteve, WTO Rules and Practices for Transparency and Engagement with Civil Society Organizations, World Trade Organization Staff Working Paper, ERSD-2012-14 at 7 (2012). The WTO's website is the primary access point for its official documents; traffic on the site increased significantly after the Seattle ministerial. See Smythe & Smith, supra note 196, at 42.Google Scholar

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201 Id. This lack of consensus may be attributable in part to power imbalances among the WTO's member states, and the potential for some member states to fear further marginalization from outside groups. Smythe and Smith have noted that certain “developing country members, such as India and Malaysia, see increased transparency as a stalking horse for powerful, primarily Northern members…. The lack of progress on fairly basic principles of transparency in decisionmaking procedures reflects enormous challenges ahead to reform internal processes, made more urgent with the increased membership and huge majority of developing countries [in the WTO].” Smythe & Smith, supra note 196, at 45; see also Barfield, supra note 78, at 405-406 (“Though many NGOs are local and small, the environmental and consumer groups that have taken the lead in challenging the WTO and the doctrine of free trade have very large budgets and payrolls and operate in many countries…. These formidable resources mean that the largest and most powerful NGOs can heavily outmatch the resources that many members of the WTO can bring to bear…”).Google Scholar

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203 See David A. Gantz, Regional Trade Agreements: Law, Policy & Practice 263 (2009).Google Scholar

204 See id.; Kevin C. Kennedy, The FTAA Negotiations: A Melodrama in Five Acts, 1 Loy. Int'l L. Rev. 121, 121-122 (2004). All nations in the western hemisphere, excluding Cuba, were represented.Google Scholar

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206 Eric Dannenmaier, Trade, Democracy, and the FTAA: Public Access to the Process of Constructing a Free Trade Area of the Americas, 27 Fordham Int'l L.J. 1066, 1089 (2004).Google Scholar

207 Id.Google Scholar

208 Kennedy, supra note 204, at 126-127; see also Dannenmaier, supra note 206, at 1080-1081.Google Scholar

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211 Id. at 1081-1082.Google Scholar

212 Cooper, Helene, Officials Plan to Disclose Draft on Pan-American Free Trade Talks, Wall St. J., Apr. 9, 2001, at A4.Google Scholar

213 Dozens of Anti-Free Trade Protesters Arrested in Ottawa, Dow Jones Int'l News, Apr. 2, 2001, 7:44 PM GMT.Google Scholar

214 Id. (“Protest organizers said earlier that they would attempt to retrieve the draft text from the Foreign Affairs and International Trade Building.”).Google Scholar

215 See Cooper, supra note 212, at A4.Google Scholar

216 Press Release, United States Trade Representative, USTR Zoellick Says Publication of Free Trade Area of the Americas (FTAA) Will Help Explain Trade Benefits (Jul. 3, 2001).Google Scholar

217 See ALCA-FTAA-ZLEA Official Website, Draft FTAA Agreement, available at http://www.ftaa-alca.org/ftaadrafts_e.asp (last visited Jul. 24, 2014; site last updated on June 21, 2006).Google Scholar

218 66 Fed. Reg. 36614 (July 12, 2001).Google Scholar

219 See Kennedy, supra note 204, at 128. (“Although I have not actually counted, I have heard that there are over 7,000 brackets in the draft text.”).Google Scholar

220 Dannenmaier, supra note 206, at 1082-1083. The USTR did publish “[o]verall U.S. Government positions on the substantive areas covered by the FTAA negotiations” on its website. See 66 Fed. Reg. 36614 (July 12, 2001).Google Scholar

221 Dannenmaier, supra note 206, at 1083.Google Scholar

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223 Id. at 1104-1105.Google Scholar

224 See, e.g., Cho, Sungjoon, The Demise of Development in the Doha Round Negotiations, 45 Tex. Int'l L.J. 573, 578-579 (2010).Google Scholar

225 See Gantz, supra note 203, at 266-268. As an aside about the importance of looking at such agreements in context: shortly before the talks were suspended, Brazilian Ambassador Adhemar Bahadian was quoted in a newspaper comparing the FTAA to “a stripper in a cheap cabaret. At night under dim lights, she is a goddess. But in the daytime she is something different. Maybe not even a woman.” Id. at 268.Google Scholar

226 See id. at 269.Google Scholar

227 See notes 304-306, infra, and accompanying text.Google Scholar

228 See Kimberlee Weatherall, Three Lessons from ACTA and Its Political Aftermath, 35 Suffolk Transnat'l L. Rev. 575, 575 (2012). ACTA was negotiated by the United States, Japan, Australia, twenty-seven countries within the European Union, Switzerland, Canada, Singapore, South Korea, New Zealand, Morocco, and Mexico. Id.Google Scholar

229 See id. at 575; United States Trade Representative, Anti-Counterfeiting Trade Agreement (ACTA), http://www.ustr.gov/acta (last visited Jul. 24, 2014).Google Scholar

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232 Press Release, United States Trade Representative, Ambassador Schwab Announces U.S. Will Seek New Trade Agreement to Fight Fakes (Oct. 23, 2007) (available at http://www.ustr.gov/ambassador-schwab-announces-us-will-seek-new-trade-agreement-fight-fakes). The USTR did post an initial solicitation for public comment regarding the U.S. agenda for ACTA in the Federal Register in February 2008. See 73 Fed. Reg. 8910 (Feb. 15, 2008). The USTR also held a two-hour public meeting “to inform stakeholders about ACTA and to receive comments from stakeholders about their views regarding this initiative” later that year. 73 Fed. Reg. 51860 (Sept. 5, 2008).Google Scholar

233 Yu, supra note 14, at 998.Google Scholar

234 See, e.g., Security Talks Prompt Laptop Fears, Canberra Times, Jul. 6, 2008, at A28; Aislinn Simpson, Customs Officials May Check iPods, Daily Telegraph (London), Jul. 11, 2008, at 6.Google Scholar

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236 Email from Stanford McCoy, Assistant U.S. Trade Representative for Intellectual Property and Innovation, to Elizabeth Baltzan et al., Feb. 10, 2009, 4:29 PM, available at http://keionline.org/sites/default/files/stand_mccoy_transparency_soup.pdf (last visited Jul. 24, 2014); see also David S. Levine, Transparency Soup: The ACTA Negotiating Process and “Black Box” Lawmaking, 26 Am. U. Int'l L. REV. 811, 813-814 (2011).Google Scholar

237 See U.S. Int'l Trade Administration, Industry Trade Advisory Committee on Intellectual Property, ITAC 15, http://ita.doc.gov/itac/committees/itac15.asp (last visited Jul. 24, 2014).Google Scholar

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239 See European Parliament Resolution of 10 March 2010 on the Transparency and State of Play of the ACTA Negotiations, P7_TA(2010)0058 (Mar. 10, 2010); Declaration of the European Parliament of 9 September 2010 on the Lack of a Transparent Process for Anti-Counterfeiting Trade Agreement (ACTA) and Potentially Objectionable Content, P7_TA(2010)0317 (Sept. 9, 2010).Google Scholar

240 E.g., Nate Anderson, World, Get Ready for the DMCA: ACTA's Internet Chapter Leaks, Ars Technica (Feb. 22, 2010, 2:23 PM EDT), http://arstechnica.com/tech-policy/2010/02/world-get-ready-for-the-dmca-actas-internet-chapter-leaks/.Google Scholar

241 Cory Doctorow, New ACTA Leak: It's a Screwjob for the World's Poorest Countries, BoingBoing (Mar. 19, 2010, 9:02 AM), http://boingboing.net/2010/03/-19/new-acta-leak-its-a.html.Google Scholar

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243 75 Fed. Reg. 79069 (Dec. 17, 2010). Note that the USTR did publish an earlier version of the text on its website in April 2010. See United States Trade Representative, Previous ACTA Texts, http://www.ustr.gov/trade-topics/intellectual-property/anti-counterfeiting-trade-agreement-acta/previous-acta-texts (last visited Jul. 24, 2014).Google Scholar

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245 The agreement was first proposed by Japan in 2005, and the US formally joined negotiations in 2007. See Yu, supra note 14, at 980-984. The agreement went through eleven rounds of negotiations and was signed in October 2011. Weatherall, supra note 228, at 575.Google Scholar

246 Levine, supra note 236, at 832.Google Scholar

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248 See id. at 580-586; see also Levine, supra note 123, at 137-140; Yu, supra note 1, at 1172: In the United States, the entertainment industry's push for controversial domestic copyright legislation, such as [SOPA/PIPA], also led to an unprecedented, massive service blackout launched by Wikipedia, Reddit, WordPress, and other internet companies. This blackout, in turn, caused Congressional representatives to quickly withdraw their support for the controversial bills, leading SOPA and PIPA to die in the 112th Congress. As Senator Ron Wyden succinctly summarized in his reminder to then-USTR Ronald Kirk in a Senate Finance Committee hearing, “[t]he norm changed on Jan. 18, 2012, when millions and millions of Americans said we will not accept being locked out of debates about Internet freedom.”Google Scholar

249 Yu, supra note 1, at 1171.Google Scholar

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251 Anti-Counterfeiting Trade Agreement (May 2011), Article 40, para. 1, available at http://www.mofa.go.jp/policy/economy/i_property/pdfs/acta1105_en.pdf (last visited Jul. 24, 2014). Note that the USTR insisted, until 2012, that no domestic legislative action regarding ACTA would be necessary because ACTA was negotiated as a sole executive agreement. See Sean Flynn, ACTA's Constitutionality Problem: The Treaty is not a Treaty, 26 Am. U. Int'l L. Rev. 903, 916-919 (2011). The administration later changed its position, arguing that it had negotiated with ex ante Congressional authorization under the 2008 PRO-IP Act. Kaminski, supra note 230, at 523.Google Scholar

252 See Yu, supra note 1, at 1130. In addition to the treaties and dispute resolution conducted under the auspices of the WTO, the expanding network of preferential trade agreements (often abbreviated “PTAs”) complicates the governance of international trade. At the time the WTO was created in 1995, there were about 50 active PTAs; that number had quadrupled by 2008. Henrik Horn, Petros C. Mavroidis & Andre Sapir, Beyond the WTO? An Anatomy of EU and US Preferential Trade Agreements, 33 World Econ. 1565, 1565 (2010).Google Scholar

253 Press Release, United States Trade Representative, Trans-Pacific Partners and United States Launch FTA Negotiations (Sept. 22, 2008).Google Scholar

254 See The Trans-Pacific Partnership Agreement: Challenges and Potential-Hearing Before the Subcomm. On Terrorism, Nonproliferation, and Trade of the H. Comm. on Foreign Affairs, 112th Cong. 8 (May 17, 2012) (testimony of Susan C. Schwab, former United States Trade Representative).Google Scholar

255 Id.Google Scholar

256 See Australian Government Dept. of Foreign Aff. & Trade, Trans-Pacific Partnership Agreement Negotiations, Release of confidentiality Letter, https://www.dfat.gov.au/fta/tpp/111221-tpp-confidentiality-letter.html (last visited Jul. 24, 2014).Google Scholar

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258 See, e.g., Press Release, United States Trade Representative, USTR Ron Kirk Comments on Trans-Pacific Partnership Talks (June 18, 2010) (“I am particularly proud of the degree to which USTR kept President Obama's promise this week to conduct trade talks in a new way, by inviting U.S. stakeholders to be on-site throughout these negotiations and ensuring that Americans who want to help shape U.S. trade policy had the chance to be heard.”); Press Release, USTR Statement Regarding the Trans-Pacific Partnership Negotiations (Sept. 5, 2011) (“We have invited stakeholder attendance during every subsequent round [of negotiations]. Thanks to this and other outreach, we already have had considerable input from the broadest range of stakeholders…”); Press Release, Trans-Pacific Partnership (TPP) Talks Advance in Texas (May 16, 2012) (“At this round, the United States introduced a new format for negotiators to engage with the more than 300 stakeholders from the United States and other TPP countries who accepted the U.S. government's invitation to be on-site throughout the talks.”).Google Scholar

259 Krista Cox, Updates from the 19th Round of Trans-Pacific Partnership Agreement (TPP) Negotiations in Bandar Seri Begawan, Brunei, Knowledge Ecology International (Aug. 22, 2013), http://www.keionline.org/node/1788; see also Jeremy Malcolm, Questions Remain—Civil Society Media Release from TPP Negotiation Round, Brunei Darassalam, Consumers International (Aug. 29, 2013), http://a2knetwork.org/questions-remain-civil-society-media-release-tpp-negotiation-round-brunei-darassalam.Google Scholar

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261 Deborah Gleeson, Update from the Latest Trans Pacific Partnership Meeting, The Conversation (Dec. 12, 2013, 5:26 AM GMT), http://theconversation.com/update-from-the-latest-trans-pacific-partnership-meeting-21416. Dr. Gleeson noted in the same blog post that the Australian government had recently blocked an order by its Senate to publish the TPP text prior to conclusion of the agreement.Google Scholar

262 Weatherall, supra note 228, at 601.Google Scholar

263 A thorough collection of leaked drafts and chapters of the TPP, alongside commentaries and analysis, is available from InfoJustice.org, a website hosted by the American University Program on Information Justice and Intellectual Property, at http://infojustice.org/resource-library/tpp#.Google Scholar

264 See Margot Kaminski, Capture, Sunlight, and the TPP Leak, Concurring Opinions (Nov. 14, 2013), http://www.concurringopinions.com/archives/2013/11/capture-sunlight-and-the-tpp-leak.html.Google Scholar

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266 For example, a group of parliamentarians from TPP-participating nations signed a joint letter seeking access to the text “before any final agreement is signed with sufficient time to enable effective legislative scrutiny and public debate.” TPP Legislators for Transparency, http://www.tppmpsfortransparency.org/ (last visited Jul. 24, 2014). The Australian Pirate Party has been petitioning the Australian government for information about the TPP since 2012; the Guardian newspaper also made Freedom of Information Act requests, quickly funded by crowdsourcing. See Brendan Molloy, Why Can't Australian Citizens Read the Trans-Pacific Partnership Agreement? TheGuardian.com (Oct. 29, 2013 11:11 PM EDT), http://www.theguardian.com/com-mentisfree/2013/oct/30/trans-pacific-partnership-tpp-dfat. Vermont state lawmakers, who passed a resolution in 2013 asking the USTR to “respect the sovereignty of individual states,” refused to meet with USTR officials to discuss the TPP if the media would not be permitted to attend. David Gram, Vt. Lawmakers Balk at No-Media Trade Talks, ASSOC. Press Financial Wire, Feb. 7, 2014, 3:18 PM GMT.Google Scholar

267 Letter to Ron Kirk, United States Trade Representative, from Prof. David S. Levine et al., May 9, 2012, available at http://infojustice.org/archives/21137 (last visited Jul. 24, 2014).Google Scholar

268 See, e.g., Doctorow, Cory, Leaked! TPP: the Son of ACTA Will Oblige America and Other Countries to Throw Out Privacy, Free Speech and Due Process for Easier Copyright Enforcement, BoingBoing (Aug. 25, 2012), http://boingboing.net/2012/08/25/leaked-tpp-the-son-of-acta-w.html; Katitza Rodriguez & Maira Sutton, What is TPP? Biggest Global Threat to the Internet Since ACTA, Electronic Frontier Foundation (Apr. 29, 2013), https://www.eff.org/deeplinks/2013/04/tpp-biggest-global-threat-internet-acta; Glyn Moody, TPP IP Chapter Leaked, Confirming It's Worse Than ACTA, Techdirt (Nov. 13, 2013), https://www.techdirt.com/articles/20131113/08405625230/tpp-ip-chapter-leaked-confirming-its-worse-than-acta.shtml.Google Scholar

269 See Miriam Bitton, Examining the Trans-Pacific Partnership Agreement, 17 J. Internet L. 25, 33-36 (2014). The close relationship between industry, Congress, and the USTR certainly creates the opportunity for IP-maximalist views to go unchallenged. This opens the door for adoption of international rules that are more stringent than what might feasibly pass public scrutiny in Congress. At a 2013 hearing, Sen. Orrin Hatch asked David Hirschmann, a witness representing the Global Intellectual Property Center at the U.S. Chamber of Commerce, how the USTR could negotiate the most effectively to benefit US IP-owners. The Trans-Pacific Partnership: Opportunities and Challenges: Hearing Before the Senate Comm. on Finance, 113th Cong. 15 (Apr. 24, 2013). “Just as a matter of negotiating,” Mr. Hirschmann replied, “U.S. negotiators should always start, at a minimum, with U.S. law.” Id. (emphasis added).Google Scholar

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273 Hearing on Trans-Pacific Partnership, Hearing Before the Subcomm. On Trade of the H. Comm. on Ways and Means, 112th Cong. 13 (Dec. 14, 2011). In addition to hearing testimony from the deputy U.S. trade representative, the subcommittee invited corporate representatives from Cargill, Inc., Wal-Mart Stores, and a public affairs consulting firm to share their views. Cargill and Wal-Mart each favor the rapid conclusion of the TPP (as they would envision it) as an essential tool to improve the American economy and the business climate. Id. at 35, 43. Other contributors were limited to offering written testimony; these witnesses advocated a balanced approach to IP enforcement (The Computer & Communications Industry Association), id. at 78-81; greater transparency in TPP negotiations and protection for access to medicines (the civil society group Knowledge Ecology International), id. at 82; and exclusion of tobacco products from favorable treatment under the agreement (a consortium of medical and public health groups), id. at 93.Google Scholar

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277 The USTR was reportedly invited to send a representative to testify at this hearing, but declined. Id. at 60. (Rep. Poe: “[T]he United States Trade Representative was invited to testify and refused to testify. You can take that however you want to take it.”) Later in the hearing, Rep. Poe asked the witnesses “Our negotiators, are they good negotiators? Are diplomats negotiating this or do we have some horse traders in there fighting for America? Id. at 64.Google Scholar

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285 See, e.g., Goldman, supra note 79, at 634-635.Google Scholar

286 See Horn, Mavroidis & Sapir, supra note 252, at 1566; see also Miles McKenna & Ian Gillson, TPP & TTIP: More Questions than Answers, Trade Post (Feb. 12, 2014), at http://blogs.worldbank.org/trade (“[T]rade agreements are moving beyond narrow ‘GATT-style’ agreements to cover deeper issues of trade integration such as investment, regulations, and services—the ‘high-hanging fruit’ of a well-picked field.”).Google Scholar

287 See, e.g., Kobrin, supra note 166, at 98 (“A coalition of strange bedfellows arose in opposition to the [MAI], including the AFL-CIO, Amnesty International, Australian Conservation Foundation, Friends of the Earth, Oxfam, Public Citizen, Sierra Club, Third World Network, United Steelworkers of America, Western Governors Association, and World Development Movement.”); John-Thor Dahlburg, Protesters Tell a Different Tale of Free Trade, L.A. Times, Nov. 20, 2003, at A3 (describing “a motley collection of activists, academics and private citizens” assembled to protest FTAA talks in Miami); The Baptist Death Ray, Darrell Issa Does Something Right (Stop ACTA), Daily Kos, (Mar. 8, 2012), http://www.dailykos.com/story/2012/03/08/1072361/-Darrell-Issa-Does-Something-Right-Stop-ACTA# (demonstrating unlikely agreement of U.S. liberals and conservatives on opposition to ACTA); Dave Pruett, Op-Ed., Secret Pact Endangers U.S., Daily News-Record (Harrisonburg, Virginia), June 1, 2013 (noting that opponents of the TPP include the liberal group Public Citizen and the conservative group World Net Daily).Google Scholar

288 Goldman, supra note 79, at 640. Today, the possibility of provisions touching on digital services and consumer goods seems particularly resonant. As Professor Yu has described regarding the TPP, “as the negotiations became more intrusive on one's personal life and as the negotiated agreements began to include provisions concerning the internet and the digital environment, civil society organizations and the public at large have begun paying greater attention to the standards included in these agreements.” See Yu, supra note 1, at 1170-1171.Google Scholar

289 See generally Samuelson, supra note 76 (describing the Clinton administration's attempt to push a controversial digital agenda at a 1996 diplomatic conference in Geneva that had failed to progress in Congress).Google Scholar

290 E.g., Devereaux, Lawrence & Watkins, supra note 136, at 167 (“OECD negotiators and officials ‘tend to be lawyers and economists who believe free trade is good for countries and investment liberalization is similarly good. Most trade negotiators were unprepared for dealing with people who fundamentally opposed what they did.'”) (quoting USTR negotiator Joseph Papovich).Google Scholar

291 Smythe & Smith, supra note 196, at 47.Google Scholar

292 Id.Google Scholar

293 By the terms of the Case Act, the Secretary of State is required to send Congress the text of any international agreement to which the U.S. is a party (other than an Article II treaty, which would have already been dispatched to the Senate) within 60 days of the agreement's entry into force. 1 U.S.C. 112b(a) (2012). When an agency, like USTR, enters into an international agreement on behalf of the U.S. government, it must send the text of that agreement to the State Department within 20 days of signature. Id. An agreement like ACTA, which has been signed for years but not yet entered into force, is virtually invisible on the U.S. State Department's website, an otherwise excellent source for information on international law. Given, also, the significant delays in print publication of any government documents, the internet is clearly the present and the future of international legal research.Google Scholar

294 See Yu, supra note 14, at 999.Google Scholar

295 For example, as of July 23, 2014, a Google search for “Trans-Pacific Partnership” returns the USTR's website as the first hit, but also highly ranks several critical assessments of the agreement from newspapers, the Electronic Frontier Foundation, Public Citizen, and other websites, as well as the purloined drafts from Wiki Leaks. Google also suggests the related search “the trans-pacific partnership global corporate coup d'etat.”Google Scholar

296 Smythe & Smith, supra note 196, at 46 (“While the trend is to release greater amounts of information, partly because the technology permits it makes it cost effective, public expectations are also increasing. If the release is incomplete or partial, questions arise and charges of secrecy are heard.”).Google Scholar

297 See S. Rep. 93–1298, at 102 (1974) (“[T]he purpose of the procedures provided is to strengthen the hand of U.S. negotiators by improving their knowledge and familiarity with the problems domestic producers face in obtaining access to foreign markets.”).Google Scholar

298 Weatherall, supra note 228, at 592.Google Scholar

299 See note 50, supra, and accompanying textGoogle Scholar

300 See note 86, supra, and accompanying text.Google Scholar

301 See section V(C), supra.Google Scholar

302 Cooper, supra note 212, at A4; Kennedy, supra note 146, at 128.Google Scholar

303 See Smythe & Smith, supra note 196, at 46.Google Scholar

304 Katz, Eddan & Hinze, Gwen, The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy, 35 Yale J. Int'l L. Online 24, 31-32 (2009).Google Scholar

305 Kaminski, supra note 7, at 530 n.50.Google Scholar

306 Yu, supra note 1, at 1170.Google Scholar

307 See US Embassy Cables: Italy, the EU, and the Anti-Counterfeit [sic] Trade Agreement, TheGuardian.com, Dec. 22, 2010, http://www.theguardian.com/world/-us-embassy-cables-documents/176810.Google Scholar

308 Levine, supra note 236, at 834.Google Scholar

309 See The Trans-Pacific Partnership—No End in Sight Economist.com Banyan Blog (Feb. 25, 2014), http://www.economist.com/blogs/banyan/-2014/02/trans-pacific-partnership-0.Google Scholar

310 See Smythe & Smith, supra note 196, at 47.Google Scholar

311 Alvarez, supra note 25, at 229. It is also yet to be seen how an information-restrictive negotiating posture may impact the transparency provisions of any resulting agreement. Early empirical research suggests a clear correlation between transparency commitments in regional trade agreements and subsequent higher trade flows. See Iza Lejárraga & Ben Shepherd, Quantitative Evidence on Transparency in Regional Trade Agreements, OECD Trade Policy Papers No. 153 (2013), available at http://dx.doi.org/10.1787/5k450q9v2mg5-en (last visited July 24, 2014).Google Scholar

312 Note that, however, some continue to press USTR through FOIA. The publishers of Intellectual Property Watch have sued USTR in federal court seeking disclosure of the TPP's intellectual property provisions. Complaint, pg. 3, Intellectual Property Watch v. United States Trade Representative, 13-CV-8955 (S.D.N.Y.), Dec. 18, 2013. Disclosure is urgently needed, the complaint states, “while negotiations are still open, lest the final terms of the agreement be presented to Congress and the public as a fait accompli.” Id. at 2. The parties have stipulated to some limitations of the plaintiffs’ original FOIA request and are scheduled to proceed to summary judgment briefing in the fall of 2014.Google Scholar