[x-pubpol] Wyden Calls for Trade Agreements that respect Open Internet Principles

[Joly MacFie]

[Via KK]

http://www.publicknowledge.org/blog/wyden-calls-trade-agreements-respect-open-int

By Rashmi Rangnath  | January 10, 2013

As my colleagues Sherwin Siy and Michael Weinberg have reported, Senator
Ron Wyden spoke at
CES<http://www.wyden.senate.gov/news/blog/post/senator-wyden-speech-at-2013-ces>yesterday
and unveiled his Freedom to Compete agenda. The agenda contains many
concrete proposals to preserve and promote an open Internet. In this post,
I will focus on the proposal that would instruct the Office of the United
States Trade Representative (USTR) to seek open Internet principles in “all
trade discussions” and also talk about the process by which these trade
discussions take place.

We at PK have always said that promoting an open Internet is not the sole
preserve of communications policy or Internet governance policy (a term
used more in international forums). Many other areas, including copyright
policy, can have adverse impacts on the Internet and policy makers must be
careful to avoid these impacts. For instance, copyright enforcement
policies that view the Internet as a means that facilitates infringement
target internet intermediaries in a manner that hurts the free speech
rights of the many to prevent the allegedly infringing acts of the few
(think ICE seizures of domain
names<http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml>).
This hurts the free flow of information on the Internet.

Yet the USTR’s strategy for negotiating trade agreements, such the
ongoing Transpacific
Partnership Agreement (TPP <http://tppinfo.org/>), seems to assume that any
copyright enforcement measure will not and cannot have a negative impact on
the openness of the Internet. This assumption is reflected in leaked US
proposals<http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf>for
an IP chapter in the TPP. These proposals would require other countries to
introduce seizure and forfeiture provisions almost identical to the
provisions the Immigration and Customs Enforcement (ICE) is currently using
to seize entire websites for certain infringing content on that website
(the dajaz1 and Rojadirecta seizures). It would also have them introduce
provisions that would increase the scope and strength of exclusive rights
over content, in a manner that would stifle the flow of content on the
Internet.

In contrast to the copyright provisions in the TPP, the USTR is also
negotiating an e-commerce
chapter<http://www.reuters.com/article/2012/09/21/us-usa-trade-internet-idUSBRE88K1B820120921>in
the TPP whose purpose is to promote the free flow of commercial data across
national borders. The USTR often holds out this chapter as an example of
its commitment to promoting an open Internet. This brings me back to the
point I made earlier: promoting an open Internet is not the sole preserve
of any one policy area. And that is the principle that undergirds Senator
Wyden’s proposal.

Just before he outlined his proposal, Senator Wyden also referred to the
recently concluded World Conference on International Telecommunications
(WCIT)  <http://www.itu.int/en/wcit-12/Pages/default.aspx>that took place
in Dubai. That conference rewrote the International Telecommunications
Regulations (ITRs) that regulated the manner in which international
telephone calls are exchanged. Many proposals to amend the ITRs would have
resulted in a drastic expansion of their scope to include several Internet
issues such as spam, cybersecurity, and traffic routing. The US
government’s approach to these negotiations was in start contrast to the
USTR’s approach to negotiating the TPP.

First, it reflected an understanding that diverse policy areas have an
impact on the open Internet and a unified approach to promote an open
Internet is essential. Thus, the government delegation brought in extensive
expertise from various government agencies, businesses, and public interest
representatives on the diverse issues which were on the table. This
approach ensured that proposals that related to the difference policy areas
were thoroughly evaluated to examine any possible adverse impact on the
free flow of information on the Internet or the open architecture of the
Internet.

Second, the government’s approach reflected an understanding of the
importance of inclusiveness and transparency as domestic negotiating
positions are developed. In the lead up to the Dubai conference, the US
government consulted with a wide variety of stakeholders including private
companies and public interest groups as it formulated its own negotiating
positions. Many of these representatives, including Harold and me, were
invited to be part of the US delegation and we accepted that invitation.

For Harold and me, the experience of being on the US delegation was a
practical demonstration of how a government can arrive at a broad based
domestic consensus on its international negotiating positions, before it
engages in those negotiations. It was also a demonstration of how it was
possible to consult with all stakeholders, including public interest
representatives, as a government develops its negotiating positions.

We hope the spirit of inclusiveness and commitment to an open Internet that
characterized the US government’s approach to the WCIT has a positive
influence on the manner in which the USTR operates. We hope Senator Wyden’s
proposal to instruct the USTR to seek open Internet principles as it
negotiates trade agreements comes to fruition.



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