Electronic Frontier Fondation | 26 August 2015
Newly released emails reveal cozy relationship between U.S. trade officials and industry reps over secret TiSA deal
As officials assert the legitimacy of using secretive trade negotiations to decide a wide range of Internet policies, multinational corporations have been more than thrilled to take advantage of this opaque process to get their wish list of policies through the backdoor. And it’s easy to observe the effects of this corporate captured process. All it takes is to compare the contents of trade agreements with industry’s wish-lists to see the extent of collusion between U.S. trade officials and industry representatives. Even so, when we’re confronted by the true nature of this lobbying it’s hard not to be appalled.
In response to a Freedom of Information Act (FOIA) request filed by EFF earlier this year, the Office of the U.S. Trade Representative (USTR) has released 124 partially-redacted pages of their email communications with private industry representatives from January 2013 and December 2014 regarding digital policy issues in the Trade in Services Agreement (TISA).
For those unfamiliar, the TiSA agreement is yet another massive, secretive trade agreement that threatens the Internet and users’ rights. Unlike the Trans-Pacific Partnership (TPP) or the Trans-atlantic Trade and Investment Partnership (TTIP), TISA focuses on services, rather than goods. It is being hammered out between 23 countries plus the European Union, including the United States, Canada, Japan, South Korea, Colombia, Mexico, and Peru.
We covered this deal following leaked draft texts earlier this summer and late last year. What those leaks revealed was a whole host of provisions that could undermine the privacy of users, preempt moves towards stronger net neutrality standards, ban countries from mandating the use of free and open source software, and bring about clumsy anti-spam rules that are ripe for abuse. On top that, the countries negotiating TISA have agreed to keep the text of this agreement classified for five years after it enters into force—even one year longer than the TPP.
What these emails underscore is just how cooperatively the USTR works with corporate lobbyists. The casual, ongoing nature of their relationship closely mirrors that of the USTR with industry reps over the TPP negotiations, which were reflected in emails released earlier this year by IP Watch during their FOIA lawsuit. In light of the USTR’s utter disregard for public interest advocates’ positions, it’s disturbing to see how receptive and communicative state officials are to these industry representatives.
USTR’s Close Ties With Major Telecom Companies
Take for example, the trade agency’s emails with Verizon. The telecom giant had one of their representatives, Jacquelynn Ruff, sitting on the Industry Trade Advisory Committee (ITAC) —which means that she is a "cleared advisor" who can read, comment, and provide direct input on trade texts to the USTR (since the USTR seems not to maintain their site page that lists members of their TACs, we have no way to verify whether she is still a member of the Committee).
The documents make clear that Verizon works very closely with the USTR to develop their policy proposals on the trade office’s "approach to ICT provisions"—all of which are blacked out across several pages. The company even works with another telecom conglomerate, AT&T, to suggest policies. What is more suspicious is that Verizon’s rep, Ruff, asks repeatedly if she can bring in other non-"cleared" advisers, from Verizon and AT&T. The USTR’s response to that email is not included in these documents, but subsequent emails suggest that at least two meetings between them did happen in April and June 2013:
Members of the public are completely shut out of discussions about what ought to be in this agreement, and even many government officials have extremely limited access to the text itself. It would be completely inappropriate for corporate lobbyists, who are not "cleared" as an advisor, to see and comment on the state of TISA negotiations while our elected representatives and the rest of the public are locked out.
Here are some other areas of corporate TiSA lobbying that the documents reveal:
Health and life insurance company, Cigna, strongly advocates against the "regulation of international data flows," because it presents a barrier for their "processing of health information and individually identifiable financial and personal information." Banking giant Citigroup is also found to advocate the same position in some of the emails, along with Google, which provides the USTR with a page of resources titled the Costs of Data Localization/Value of Cross-Border Movement of Data.We have long held that the danger with the kind of "free flow of information" provisions that Cigna advocates for could undermine democratically enacted data protection rules—particularly over sensitive data like personal health and financial information. As we previously stated, these free flow of information laws are complicated and could affect privacy, just as much as they could affect free expression.
The leaked TISA texts on the Movement of Information (aka the free flow of information) does not have an exception for privacy rules—this is a point made later by representative of CCIA. In an email following December’s leak of the TISA text, the CCIA urges trade negotiators to respond to the Financial Times that TISA will not undermine user privacy protections. This argument is based on the fact that an exception in a previous trade agreement on services, the General Agreement on Trade in Services (GATS), will carry over to TISA. But the scope of that exception has not been tested, and TISA leaves the door open to challenges that individual national privacy laws are “arbitrary” or “unreasonable.”
U.S. Chamber of Commerce receives pretty specific updates on the state of play of the negotiations from USTR. They invite a USTR officer to a speaking engagement and asks if there are any "off limit questions or any softballs" he could toss to them.
The Business Roundtable, an association of top CEOs across the United States, is in regular contact with the USTR. In one exchange, had to reassure an official that a February 2014 meeting of senior technical company experts to discuss how to advance their "mutual goals" would be “completely off-the-record."
All in all, these emails don’t reveal anything particularly new about the contents of TISA, especially since almost all of the companies’ policy recommendations are blacked out. What they do show is how willing the USTR is to represent and push for corporate interests—which is such a jarring contrast to how they’ve continued to shun EFF and other civil society groups and public interest advocates. At least in the early days of the TPP negotiations, arrangements were made for public interest advocates to make presentations to negotiators and to attend informal briefings. No such measures have been made for TISA.
We know from the proposals themselves that the USTR is a completely captured agency, but these documents give us a peek into what that capture looks like in practice, showing that a huge part of the problem is that the USTR simply prioritizes and trusts corporate input into the process, with no equivalent hearing being given to civil society groups. The result is that TISA is effectively being written by corporations, at the direct expense of the public interest.
The entirety of the FOIA response: U.S. Trade Representative Emails With Lobbyists Regarding TISA [.pdf]