NAFTA’s Ghost Haunts The White House and Internet Freedom Advocates Scream: The Trans-Pacific Partnership as of March 2014

The Trans-Pacific Partnership (“TPP”) is an international trade agreement being negotiated among 12 countries including the United States, Canada, Japan, Australia, New Zealand, Singapore, Malaysia, Brunei, Vietnam, Chile, Mexico, and Peru.  Critics have described the TPP as “NAFTA on steroids,” in part, because (1) the inclusion of Canada and Mexico will result in the TPP superseding much of the North American Free Trade Agreement (“NAFTA”); and (2) the perception that the TPP is repeating the past mistakes of NAFTA.

The White House is being visited by the ghosts of NAFTA past.  Since 1994, NAFTA has been blamed for the loss of American jobs and criticized for its lack of environmental protections, including criticism, in 2008, by then-senators Clinton and Obama.  The TPP faces similar criticisms. “Twenty years after NAFTA, we are now getting the Trans-Pacific Partnership forced on us, with the same kinds of incentives to outsource jobs that will leave American workers at the mercy of a race to the bottom,” warns Rep. Rosa DeLauro (D-CT). A leaked draft of the environmental chapter of the TPP has raised concerns that the hard-fought gains for environmental protections in other recent trade agreements are lacking in the TPP.

However, the TPP does more than summon ghosts from the past. Internet freedom advocates are haunted by the ghosts of the future. In 2012, the intellectual property chapter of the secretive TPP negotiations was leaked by Rep. Darrell Issa (R-CA). Internet freedom advocates are concerned (1) that problematic IP restrictions are being created outside of a public and open democratic process, and without provisions to protect fair use and free speech; (2) that once provisions are added to an international agreement, national laws will be changed to conform, although the provisions may not have been supported domestically; and (3) that any current reform efforts to modify national copyright laws in the U.S. will be that much harder to achieve.  Internet freedom advocates are concerned that the TPP may block current U.S. legislation to allow the unlocking of cell phones. Another concern is that the TPP threatens the underlying functionality of computers and the internet by granting copyright protection to “temporary copies” of programs, files, and content in computer memory without adequate limitations.  Temporary copies include video buffers, server caches to speed downloads, and local computer copies of visited web pages. The TPP agreement also seeks to deputize internet service providers to police the internet and contemplates taking away an individual’s right to access the internet, which raises profound human rights issues. The right to connect to the internet is essential for individuals to access education, to access public knowledge and public services, to participate in public debate, and to participate in democracy.

It is understandable that an informational buffer is needed, at times during negotiations, to allow for robust internal discussions with offers and counteroffers. However, when problematic and new IP restrictions are being proposed and human rights are at stake, transparency and public debate are needed.

It is understandable that an informational buffer is needed, at times during negotiations, to allow for robust internal discussions with offers and counteroffers. However, when problematic and new IP restrictions are being proposed and human rights are at stake, transparency and public debate are needed.  The ghosts of NAFTA past warn of unintended consequences in trade agreements.  Internet freedom advocates have identified a number of problems with the intellectual property chapter of the TPP, based on the little information that has become available through leaks.  The ghosts of the TPP future can be minimized by an open and public debate, as ghosts can only thrive in the dark.