Tech Liberty NZ Defending civil liberties in the digital age

ACTA vs TPP: The Case for Transparency in International Treaty Negotiations

Posted on December 5, 2010

ACTA (the Anti-Counterfeiting Trade Agreement) has shown us that openness when negotiating trade agreements leads to a better result – but it looks like this lesson that hasn’t been learnt by the negotiators of the TPP (Trans Pacific Partnership) free trade agreement.

At the beginning of the year Tech Liberty was involved in the campaign against the ACTA treaty. A major part of the problem with ACTA was that while we knew it was attempting to push more offensive IP laws, the secrecy around the negotiations meant we didn’t know what was in them.

Traditional Closed Model of Treaty Negotiation

ACTA followed the traditional model of negotiating a trade agreement (PDF), which goes something like this:

  1. A number of countries get together and decide to negotiate an agreement.
  2. The countries send their delegates to a series of meetings.
  3. The delegates discuss what sort of things will be in the treaty and come up with an agenda.
  4. Delegates present papers about particular topics.
  5. Work starts on a draft agreement.
  6. The delegates work through the draft removing points of difference.
  7. The text is finalised and returned to the governments for signing.
  8. In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
  9. The governments make any required law changes and then sign the treaty.

You’ll note that the consultation with the people comes after the treaty text has been finalised. The process is structured so that there’s no chance that a government could consult, then come back to the negotiations and ask for more changes to be made (and indeed, this could be a bit chaotic).

Dear Independent Reference Group – Do Your Job

Posted on November 22, 2010

Dear Independent Reference Group,

Please do your job.

Yours, Tech Liberty


We believe that secret censorship is a threat to our democracy. We need to be careful when giving our government the ability to limit what we can see and hear - which is why we require the Chief Censor to publish their decisions. This openness, the ability for anyone to review and challenge, helps prevent abuse of the censorship scheme.

One of our objections to the government's Internet censorship filter was that the Department of Internal Affairs has refused to release the list of censored sites. They say that they'll only censor certain types of material, but how can we know that they're sticking to this without being able to see the list?

The DIA did respond to these concerns by establishing the Independent Reference Group to provide at least some semi-independent oversight of the filter, although they had to be persuaded to let the IRG have access to the list of blocked sites. Then, from the minutes of the IRG's meeting on 15th October 2010:

Members of the Group were invited to identify any website that they wish to review. They declined to do so at this stage.

Now, we quite understand that members of the IRG don't want to look at those sites. But that's not the point - they have a responsibility to ensure that the filter "...is operated with integrity and adheres to the principles set down in the Code of Practice."

This oversight isn't going to work if the IRG don't exercise it. The filter list grew from 153 entries in June to 538 in November - surely it would have made sense to have a look at the list and select some of the additions for a brief review?

Recommendation

We recommend that at each meeting the IRG should randomly select a sample of newly added sites and review the content to ensure that the filter is not being abused. Anything less is neglecting their duty.