[Ip-health] Transparency Soup: USTR's February 10, 2009 memo

James Love james.love at keionline.org
Thu Sep 9 05:07:26 PDT 2010

Source URL: http://keionline.org/node/929

USTR's February 10, 2009 memo on Transparency Soup
By James Love
Created 8 Sep 2010 - 10:00pm

On October 14, 2009, KEI submitted a FOIA request to the USTR, which is
available here [1], asking for the following records:

<-----------KEI requests all records at USTR on the topic of the policy
and practice of USTR regard the transparency of trade negotiations,
including but not limited to the Anti-Counterfeiting Trade Agreement

On September 3, 2010, we received a letter dated August 30, 2010, with a
very incomplete response to that FOIA request. The most interesting
document included in the preliminary response was an email with 3 pages
of attachments sent by Stan McCoy [2], the Assistant U.S. Trade
Representative for Intellectual Property and Innovation, on February 10,
2010. A scanned copy of the McCoy missive is available here [3].

Stan McCoy's February 10, 2010 email on "transparency soup."

President Obama was inaugurated on January 20, 2009.

On January 31, 2009, KEI submitted a Freedom of Information Act (FOIA)
request to USTR for copies of seven documents containing much of the
negotiating text of the proposed Anti-Counterfeiting Trade Agreement

On February 10, 2009, Stan McCoy send an email to Elizabeth Baltzan,
David Apol, Rachel Bae and Kira Alvarez, with the subject "Transparency
Soup." In this memo, Stan McCoy anticipated that the Obama
Administration might seek to expand the transparency of the ACTA
negotiation. McCoy set out a seven point strategy for dealing with the
demands for transparency. These proposals were quite limited. Since
then, the Obama administration has gone no further than McCoy's
suggestions, and in some cases, has done less.

On March 10, 2009, USTR rejected our FOIA for the ACTA text [4] on the
grounds that this would undermine the national security of the United

McCoy's February 10, 2009 transparency proposals were as follows:

   1. Starting Positions. USTR will post on its website the text of the
initial U.S. negotiating proposals. Text may include blank spaces or
brackets as appropriate.
   2. Initial (prefinal) text: Before the agreement is signed, USTR will
post the final negotiated text (which may be subject to a final
technical review).
   3. Meta-text. USTR will not disclose U.S. or trading partner
proposals as such, but may seek public comments as needed on "proposed
text under consideration" in a negotiation, which will not be identified
with any government and may include U.S. proposals and/or any non-FGI
proposal of trading partners.
   4. Interim text: USTR may release bracketed interim texts if all
trading partners engaged in a particular negotiation agree.
   5. More Cleared Advisors: USTR will add more NGOs to cleared advisor
groups and/or create new groups to broaden the range of stakeholders who
can see nonpublic texts.
   6. Updates: USTR will periodically provide public updates and/or hold
public meetings on the progress of the negotiations.
   7. Open-Door: USTR will maintain an open-door policy for meetings
with interested stakeholders.


The following are comments on each of the 7 USTR Feb 10, 2009 proposals.

1. Starting Positions. The Obama Administration never agreed to post on
its web site the initial US negotiating proposals.
2. Initial (prefinal) text: The Obama Administration now says it will
only agree to release an official version of the negotiating text after
substantive negotiations have concluded.
3. Meta-text. This has not happened.
4. Interim text: After the March 10, 2010 European Parliament vote of
633 to 13 to demand the release of the ACTA negotiating text, the Obama
Administration agreed to a release of the April 16, 2010 version of the
consolidated text, without country positions. This is the only time so
far the Obama Administration has agreed to a release of the text.
5. More Cleared Advisors. In August through October of 2009, USTR
created a system to provide at least 42 persons access to the U.S.
proposal for the Internet chapter of ACTA, after signing an NDA. This
included two groups with strong technology industry ties: Public
Knowledge and CDC.
6. Updates. USTR has done this.
7. Open-Door. USTR has done this.

[1] http://keionline.org/foia/ustr
[4] http://keionline.org/blogs/2009/03/12/acta-state-secret
James Love, Director, Knowledge Ecology International
http://www.keionline.org | http://www.twitter.com/jamie_love
Wk: +1.202.332.2670 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.6584

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