Wikileaks Puts the TPP's Feet to the Flames—Can It Take the Heat?

After a major leak from the agreement's secret text, people are talking about the TPP. What will it mean for the secretive trade deal's future?
Photo by haak78 / Shuttershock.

It's been a rough week for the international trade deal known as the Trans-Pacific Partnership.

Right on the heels of the two letters, Wikileaks released all 95 pages of the TPP's chapter on intellectual property. Up

First, some lawmakers sent letters saying they will insist on reviewing the text, an outcome the Obama Administration, which is negotiating the deal, hopes to avoid. Then, Wikileaks published a key chapter of the agreement's confidential text and exposed it to scrutiny by everyone from digital rights advocates to Doctors Without Borders. Meanwhile, groups of citizens gathered in 13 cities around the United States on Tuesday night to draw attention to the issue with light shows on overpasses, where they held glowing signs with messages about the TPP.

Fueled by these stories, public discussion of the Trans-Pacific Partnership soared to an all-time high, as shown by a query on Google Trends:

Why all the uproar? The controversial deal would affect drug patents, regulation of the Internet, food safety standards, and many other issues across the 12 member states (which include Australia, Japan, Vietnam, Canada, and Peru). The United States Trade Representative calls the deal "the foundation of the Obama Administration's economic policy in the Asia-Pacific Region."

Up until now, large majorities of the elected officials of both parties have supported the deal, making adoption almost a foregone conclusion. But cracks in that consensus began to appear on Tuesday, when 22 Republican members of Congress sent a letter to President Barack Obama stating their opposition to a process known as "fast track."

Under fast track authorization, members of Congress give up their right to debate the and vote on specific provisions of the TPP. Instead, they can merely vote yes or no on the trade agreement as a whole. Fast track authorization will come up for a vote of Congress in the coming months.

The leaked sections reveal a process far more contentious than official statements have suggested.

Not long afterwards, 151 Democrats in Congress sent the president a similar letter. "We will oppose 'Fast Track' Trade Promotion Authority," the lawmakers wrote, "or any other mechanism … that continues to exclude us from having a meaningful role in the formative stages of trade agreements and throughout negotiating and approval processes."

The Obama Administration has said it wants to complete TPP negotiations by the end of the year. But if fast track is not approved, then Congress will be able to scrutinize the complicated agreement and make changes—each of which would then be sent to the 11 other TPP countries for re-approval.

And the TPP's troubles were just getting started. Right on the heels of the two letters, Wikileaks released all 95 pages of the TPP's chapter on intellectual property. Up until then, the text was available only to official negotiators and the more than 600 corporate representatives who are "advising" them. Environmentalists, labor advocates (with the exception of a few large unions), and other advocates for the public are considered "stakeholders," rather than negotiators. They cannot see the text, and will participate in next week's meetings in Salt Lake City, Utah, by phone only.

The leaked document isn't a final draft; it's still being revised and contains sections in brackets that negotiating parties want either inserted or deleted. By looking at the bracketed sections, it's possible to see which countries are advocating which policies. Even at first glance, these sections reveal a process far more contentious than official statements have suggested. And advocates for various public interests are going through the text and raising big questions about what it says.

Many passages show the United States pushing for policies opposed by most—or even all—of the other negotiating countries.

Several public interest groups and individuals immediately released quick and dirty analyses of the leaked text. "The Obama administration's proposals are the worst—the most damaging for health—we have seen in a U.S. trade agreement to date," wrote Public Citizen, referring to sections of the leaked text that would, among other things, make it more difficult to obtain low-cost generic versions of medications.

"The U.S. demands would require an overhaul of Canadian copyright law and potential changes to privacy law," wrote Canadian writer and policy analyst Michael Geist, referring to changes to Internet Service Provider liability being pushed by the United States and Australia.

The Electronic Frontier Foundation wrote that the leak revealed the TPP to be "an anti-user wish list of industry-friendly policies," referring to a host of sections that would limit the freedoms of Internet users.

In addition to these and many other issues, the leaked text suggests a level of difficulty in the negotiations that had not been apparent before. For example, many passages show the United States pushing for policies that strongly favor copyright holders, and that are opposed by most or even all of the other countries negotiating the TPP.

Here's a case in point, in which the United States seems to argue that copyright owners should have the right to prosecute people who use or share their content by accident. Note that the two-letter abbreviations represent TPP countries: AU is Australia, BN is Brunei, and so forth.

US propose; AU/BN/MY/NZ/SG/CL/VN/PE/CA/MX/JP oppose: 3. Each Party shall also provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy… (italics mine)

In a similar case, we see the United States saying that those who infringe on copyright law should be liable for three times the amount of damage they caused. All other negotiating parties oppose the idea.

US propose; SG/PE/VN/CA/CL/NZ/MY/BN/AU/MX/JP oppose: 6. In civil judicial proceedings concerning patent infringement, each Party shall provide that its judicial authorities shall have the authority to increase damages to an amount that is up to three times the amount of the injury found or assessed.

Official U.S. negotiators had signaled earlier that TPP talks had run into trouble. Acting Deputy US Trade Representative Wendy Cutler acknowledged on November 6 that "the toughest issues in trade negotiations are always left to the end."

But observers are beginning to wonder whether this agreement can possibly be signed when representatives meet for that purpose in Singapore from December 7 to 9.

"It's still a very optimistic idea that this could all get resolved by the end of the year," said Maira Sutton, Global Policy Analyst at the Electronic Frontier Foundation, "unless the United States and other countries are willing to make some heavy compromises."

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Kristen Beifus of the Washington Fair Trade Coalition says the timing of the leak could "shame" members of Congress who hadn't signed the letters demanding to see the text. In any case, the leak seems likely to make approval of fast-track authority less of a sure thing.

Between the congressional letters, the leak, Tuesday night's demonstration with glowing signs, and the many blog posts and analyses about it that are popping up all over the Internet, the TPP negotiations are no longer happening under the radar. Although majorities in both parties still support the agreement, the flood of new publicity is throwing its fate into question.