Response to EU Ombudsman's Consultation on TTIP Transparency

The EU Ombudsman is running a consultation on how to improve the transparency of the TTIP negotiations.  This shouldn't be hard, since there is currently vanishingly small openness about these secret talks.  However, to keep things simple, I have just one very easy suggestion, as my response to the consultation below explains:

My name is Glyn Moody, and I am a journalist who has written over 40 columns on TTIP (available at http://www.computerworlduk.com/blogs/open-enterprise/ttip-updates--the-glyn-moody-blogs-3569438/.) My comments are based on following trade negotiations closely for many years, including those for TPP, TISA and ACTA. Please find below my responses to the consultation's questions.

1. Please give us your views on what concrete measures the Commission could take to make the TTIP negotiations more transparent. Where, specifically, do you see room for improvement?

There is one one very simple measure that would make the TTIP negotiations highly transparent without limiting the European Commission's ability to keep its negotiating strategy secret - something it claims is necessary.

This would be to make all EU documents and proposals public as soon as they are tabled.

There can be no objection that this will reveal the Commission's strategy to the US side, since the latter can, by definition, see all documents once they are on the table. Releasing them to the public would therefore reveal nothing that the US negotiators did not already know. The US cannot object, since it only concerns the EU proposals, and reveals nothing of the US position (not that this should be secret.) In short, no one could possibly object, unless, of course, the real purpose of negotiations being held behind closed doors is precisely to keep the public ignorant of what is nominally being carried out in their name.

2. Please provide examples of best practice that you have encountered in this area.

Negotiations at WIPO go far beyond simply making tabled documents available, as this article explains in detail (http://infojustice.org/archives/30027). Here are the main points:

"The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process."

"WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. "

"WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike."

"Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement."

This clearly shows how complete transparency is possible, and that negotiations can not only proceed under these conditions, but reach successful conclusions.

3. Please explain how, in your view, greater transparency might affect the outcome of the negotiations.

Real transparency - for example, by publishing all tabled documents - would have a profoundly important impact, since it would offer hope that any final agreement would enjoy public support. Without transparency, TTIP will simply be a secret deal among insiders, imposed from above, rather than any legitimate instrument of democracy.

Japan Likely To Pass New Secrecy Law That Would Put Whistleblowers And Journalists In Jail

One of the many worrying aspects of the Snowden saga is an attempt in the US to reframe whistleblowing as treason, and to make it harder for people to reveal information to journalists or the public that might embarrass the government there. However, things are even worse in other parts of the world. In Japan, for example, there are plans to bring in a new secrecy law that will make whistleblowing even more risky, as Reuters reports: 

On Techdirt.

Would You Trust Any Organization That Doesn't Trust 4,000 Of Its Employees? What If It's The NSA?

It's becoming increasingly clear that one of the reasons Edward Snowden was able to access so much secret information -- and walk out of the door with it -- is that the NSA is an organizational mess. A fascinating post by David Ignatius in the Washington Post underlines another way in which the NSA is deeply dysfunctional by any normal standard: 

On Techdirt.

How To Solve Overclassification: Give Government Departments A Limited Annual 'Secrecy Budget'

Recently we noted that "overclassification" of sensitive material actually leads to more secrets being revealed. The New York Times has published an interesting article that picks up on this theme, and gives the following concrete example of how overclassification has been harmful to the US: 

On Techdirt.

Discontent With Secrecy And One-Sided Nature Of TPP Spreads Among Participating Nations

Last week Mike wrote how frustration at the unremitting secrecy surrounding TPP, and the refusal to allow members of the public in whose name it is being negotiated to express their views, has led to the creation of a new participatory Web site by the "Fair Deal Coalition." Many of the best-known groups fighting for more balanced copyright laws in the US, Canada, Australia and New Zealand have signed up, including Techdirt. 

On Techdirt.

Not Learning From ACTA: IPR Protection And Enforcement Seen As 'Less Difficult Issue' For TAFTA/TTIP

Despite increasing calls for the imminent TAFTA/TTIP trade negotiations to be conducted as openly as possible, it seems likely that, as with ACTA and TPP, everything will be decided behind closed doors. That means the rest of us are forced to take our information about what is likely to happen where we can find it. For example, a new survey entitled "The Transatlantic Trade and Investment Partnership: Ambitious but Achievable" (pdf), carried out by The Bertelsmann Foundation and Atlantic Council, offers some interesting thoughts on the subject. Here's the description: 

On Techdirt.

EU Free Trade Agreements With India And Canada Grind To A Halt

Techdirt has been covering the free trade agreement being negotiated between India and the EU for a while now -- that is, as well as anyone can report on something that is being conducted behind closed doors. Despite or maybe even because of that secrecy, one issue in particular has raised concerns: that India's crucial role as supplier of low-cost generics to the world's poor might be under threat. Against that background, this report on the Live Mint site comes as something of a surprise: 

On Techdirt.

Why Public Interest Trumps Trade Secrecy

Most companies have a natural tendency to keep details of their activities secret -- the fear being that competitors might be able to exploit for commercial advantage the information that they obtain. But it may be in the public interest for some details to be released, even if this might prove inconvenient for the company concerned. That's the background to a letter sent by ten law professors, including Larry Lessig, to the Alaska Oil & Gas Conservation Commission, pointed out to us by infojustice.org. 

On Techdirt.

French Intelligence Agency Forces Wikipedia Volunteer to Delete Article; Re-Instated, It Becomes Most-Read Page On French Wikipedia

Last week, we wrote about an organization that was unhappy that a Wikipedia article no longer existed. Now we have the opposite problem: an organization unhappy because a Wikipedia article does exist. And not just any organization, but the "Direction Centrale du Renseignement Intéieur" (Central Directorate of Interior Intelligence, DCRI), a French intelligence agency, which suddenly decided that an article about a military base contained classified information, and wanted it deleted. As the English-language Wikipedia article on the subject explains:

On Techdirt.

Out ACTA-ing ACTA: All TPP Negotiating Documents To Be Kept Secret Until Four Years After Ratification

The Anti-Counterfeiting Trade Agreement (ACTA) has now been signed by several nations – even if its actual status is by no means clear. But that doesn't mean governments have finished with their trade negotiations behind closed doors. As Techdirt reported earlier this year, the Trans Pacific Partnership (TPP) agreement is, in some ways, even worse than ACTA, and looks to be a conscious attempt to apply the tricks developed there to circumvent scrutiny yet further. 

On Techdirt.

Wikileaks: the Web Watches and Waits

It's clearly still far too early to attempt to assess the impact of Wikileaks' latest mega-leak, this time of US secret cables, which is certainly a biggie:

The full set consists of 251,287 documents, comprising 261,276,536 words (seven times the size of "The Iraq War Logs", the world's previously largest classified information release).

The cables cover from 28th December 1966 to 28th February 2010 and originate from 274 embassies, consulates and diplomatic missions.

On Open Enterprise blog.

To: EC's Directorate General for Trade

Without much fanfare, the European Commission has arranged an "ACTA Stakeholders’ Consultation Meeting". Of course, the big problem is that it's in Brussels, and few of us can afford to take a day off work to attend - unless we are professional lobbyists, of course, who get *paid* huge sums to attend.

However, it is still possible to make some comments on ACTA, since

Those unable to participate in the meeting and/or wishing to present their positions in writing may send their comments to TRADE-ACTA-MEETING@ec.europa.eu , no later than 22 March 2010.

So if you have a few minutes to spare this afternoon, I urge you to drop the EC's Directorate General for Trade a short note to let them know what you think. Here's mine:

Unfortunately, I won't be able to attend the ACTA Stakeholders’ Consultation Meeting; but I shouldn't need to. If the Internet has taught us anything, it is that such processes can – and should – be opened up to all using this wonderful democratising tool. By resorting to such traditional meetings, the European Commission makes it difficult for ordinary people with jobs (to say nothing of those who are unemployed) from attending and thus voicing their opinions. Instead, it will be the usual well-funded lobbyists who turn up and pack the meeting, crowding out the few who represent the hundreds of millions of ordinary EU citizens.

So my comment really comes down to this: we need full transparency for the ACTA negotiations, with all of the drafts released as and when they are modified, along with all other related documents, so that all of us can participate in this crucially important process. This is not some ancillary facet that can be tacked later, but is absolutely central. If other partners won't agree to transparency, then the EU should simply refuse to negotiate further, since there is no reason why such drafts should not be open for all to discuss – unless, of course, there is something in them that certain participants want hidden until the negotiations have been concluded and can be presented as a fait accompli.

ACTA negotiations without transparency are simply a continuation of the bad old days of closed-door meetings of cosy insider groups to the detriment of ordinary citizens. If the EU is truly to represent the citizens of Europe, it must definitively turn its back on that unrepresentative system, and place openness and transparency at the heart of everything it does.

If it does not, voters' disenchantment with politics will grow, and the already-gaping chasm between the politicians and the people will widen, until our nominal representatives find themselves increasingly alienated from the electorate. That would have dire consequences not just for politicians, but for European democracy itself.

Follow me @glynmoody on Twitter or identi.ca.

Cracks in the ACTA Wall of Secrecy

I've lamented many times the totally unjustified secrecy of the ACTA negotiations: these affect billions of people who have a right to know what their elected representatives are up to before this stuff is simply imposed on us. Hitherto, there's been no suggestion of any dissension within the ACTA ranks; so this comment in a blog post from Jamie Love about a lunch meeting of civil society NGOs held by the UK's Intellectual Property Office during the WIPO meeting is intriguing:

The UK IP office said it had complained frequently of the secrecy of the ACTA negotiations.

Perhaps if we can get a few more of the insiders moaning about this unnecessary lack of transparency, things will finally start moving.

Follow me @glynmoody on Twitter or identi.ca.

MPs' Expenses Not Secret - Yet...

Looks like a reprieve more than a pardon:

Gordon Brown today retreated from plans to exempt MPs expenses from the Freedom of Information Act.

The surprise announcement made during prime ministers questions follows the collapse overnight of a bipartisan agreement between Brown and David Cameron, the Tory leader.

...


Brown told MPs: "We thought we had agreement from the parties and we will continue to have discussions with all parties until we have agreement."

Still, maybe shows that writing to MPs has *some* effect.

In Praise of Wikileaks

Nice background piece on Wired.

On Being Open

Interesting thoughts from Cory Ondrejka on the virtues of telling people what you're doing when you start a new company, rather than trying to keep everything secret:

It may seem slightly counterintuitive, but once you noodle on it a bit, being open is a tremendously positive and competitive move. It forces your ideas to survive far broader scrutiny, makes it easier to hire, and lets your early employees do what they want to be doing anyway: brag about their cool, new company.

He also makes another crucial point:

It’s similar to considering how to talk about competitors. Sure, having enemies can be motivational and useful when you are getting started, but you and your competitors are collaboratively shaping the landscape for your new companies. Spending time publicly bashing them makes you look like an ass and hurts your ability to work together down the road. It is rare for any sector to be winner-take-all – even eBay has competitors – and multiple, high-quality products in a space can help ensure the overall business grows far quicker than any one company could on its own.

Such "bashing" is much rarer in the open source world, since everyone is effectively working together - the code is open, after all. Your competitor is also your collaborator, since ideas - and even code - can generally flow freely between you.