Electronic Frontier Foundation

Defending your rights in the digital world

How Can the New York Times Endorse an Agreement the Public Can't Read?

The New York Times' editorial board has made a disappointing endorsement of the Trans-Pacific Partnership (TPP), even as the actual text of the agreement remains secret. That raises two distressing possibilities: either in an act of extraordinary subservience, the Times has endorsed an agreement that neither the public nor its editors have the ability to read. Or, in an act of extraordinary cowardice, it has obtained a copy of the secret text and hasn't yet fulfilled its duty to the public interest to publish it.
Without a publicly available agreement, readers are forced into the uncomfortable position of taking official government statements at face value. That's reflected in the endorsement, which fails to note the myriad ways in which TPP has been negotiated undemocratically, shutting out public oversight while permitting corporate interests to drive the agenda. Given these glaring issues, it is disconcerting that the Times would take such a supportive stance on an agreement that is likely to threaten innovation and users' digital rights well into the 21st century.
That situation leaves unanswered questions. Does the editorial board, for example, support the TPP provisions that would give private corporations new tools to undermine national sovereignty and democratic processes? Because “investor-state dispute settlement,” slated for inclusion in both the TPP and the EU-US trade agreement, the Transatlantic Trade and Investment Partnership (TTIP), would give multinational companies the power to sue countries over laws that might cut into expected future profits. This could allow corporations to unravel any policy designed to protect users against violations of their right to privacy or free speech online. The paper's endorsement notes that copyright enforcement could be expanded to suit legacy media companies, but provides no explanation of why a trade agreement is an acceptable venue for deciding such issues.
Does the New York Times also endorse an initiative to scrap democratic oversight of TPP by elected lawmakers? After all, Senate Finance committee leaders, Sen. Max Baucus and Sen. Orrin Hatch have renewed their call to pass fast-track, which would hand over Congress' constitutional mandate over US trade policy to the Obama administration. Fast-track, also known as Trade Promotion Authority, would restrict lawmakers from having any proper hearings on its provisions, limiting them to an up-or-down vote on the entire 29 chapter treaty.
The paper's statement emphasizes how the Obama administration strives to make TPP's policies “an example for the rest of the world to follow.” But if that's the case, then it's all the more important that the agreement be published immediately. Such a significant body of international law regulating digital policy must not be negotiated without proper, informed public debate. The secrecy of the process itself ensures that only some private interests will be represented at the expense of others. In addition, the U.S. Trade Representative's history of pushing forth extreme copyright enforcement policies through other trade agreements gives little assurance that users' rights will be considered in the TPP.
Trade representatives are working to finalize TPP negotiations by the end of the year. Negotiators are scheduled to meet in Salt Lake City next week to negotiate outstanding issues in this agreement, including provisions on liability for Internet Service Providers and anti-circumvention measures over DRM. Following that, trade delegates are seeking to finalize and sign this agreement in December in a ministerial meeting in Singapore.
It's unfortunate that news outlets are giving little coverage to TPP, when media attention could have a major impact on how the US and the other 11 nations draft digital policy. But public media coverage is precisely the sort of accountability that official secrecy thwarts. Instead of endorsing an agreement the public can't read, a responsible paper would condemn the secrecy involved. And if the Times has seen the text and knows what's contained in the TPP, then they have a responsibility to publish the text immediately and expose the US government's back room dealings.
In either case, it is deeply disappointing that the New York Times would even support the TPP when the public remains in the dark. An endorsement of TPP at this stage is an endorsement of opaque, corporate-driven policymaking.
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We need to demand that our lawmakers oppose fast track, ask them to call for a hearing, and exercise their authority to oversee the U.S. trade office’s secret copyright agenda.