UPDATE, 8/05/2016: We’ve now been informed that the results of our FOIA on Digital Trade in the WTO will be sent to us “as soon as possible”.
The Transatlantic Trade and Investment Partnership (TTIP) is a massive EU-US trade deal that has potential to harm digital rights, as we detailed in our analysis last year: T-TIP: 10 Things You Should Know About the EU-US Trade Agreement (PDF). Yet we can’t gauge to what extent it could harm privacy, free expression, and other fundamental rights. That’s because despite leaks, TTIP remains largely shrouded in secrecy. The lack of transparency is a pervasive problem in European governance right now, and it’s one we hope to help fix.
Trade agreements and transparency
Negotiations for TTIP launched in June 2013. Over the past three years, civil society, including Access Now, has been working to draw attention to the lack of transparency in the negotiations. In 2013, we were one of 250 NGOs that reached out to the EU Commissioner for Trade to urge transparency. Since then, the EU Ombudswoman Emily O’Reilly has also voiced the need to increase public participation in the negotiations.
More recently, Access Now has been pushing the envelope in fight for transparency, filing a Freedom of Information Act (FOIA) request to get information about a forthcoming — and yet unknown — Digital Trade Initiative developed with the World Trade Organisation. This effort, however, has been to no avail. The General Secretariat of the Council of the EU rejected the request on the grounds that ‘disclosure would seriously undermine the Council’s decision making process’. We filed the same FOIA with the EU Commission and still await a response. As you can likely surmise, the lack of transparency for TTIP is only one indication of a larger problem. Most of the information civil society can gather about TTIP comes from leaks, such as the one by Greenpeace – Netherlands just two months ago, delivering a half-page of text just before the 13th round of TTIP negotiations.
Even though the negotiators for TTIP are elected or appointed officials, the veil of secrecy that surrounds the negotiations represents the antithesis of democracy and its ideals. In fact, there are elements under discussion in TTIP, such as the Investor-State Dispute Settlement or ISDS mechanism, that are especially troubling for democratic accountability. The protocol lets companies sue governments if there are any laws that could threaten ‘expected profit’. Similarly, discussion in TTIP of data flows would have an obvious impact on data protection and privacy, and so has raised a number of eyebrows.
CETA: Is a “mixed” approach more rights-friendly?
Consider for contrast the Comprehensive Economic and Trade Agreement (CETA), a free trade deal between the EU and Canada. Among the notable developments in the CETA negotiations has been the decision to treat the agreement as mixed. Rather than leave adoption of the treaty up to the EU Commission and Parliament, each member state will individually vote on CETA. This may open an avenue for more democratic and weighted discourse, as it gives member countries the capacity to diverge on specific issues. TTIP, on the other hand, closes off the possibility for such diversity of thought and reasoning, instead blocking off discussion behind closed doors and numerous disclosure constraints.
Trade officials may argue that public disclosure does not go hand in hand with successful negotiations. But internet users understand what it does go hand in hand with : protecting our rights. Trade agreements have the potential for far-reaching impacts. They can be beneficial to the public interest and help governments build stronger diplomatic relationships, but they can also be tragically detrimental. Since the public has the biggest stake in TTIP’s outcomes, it’s preposterous to exclude our participation in developing it. What message are governments sending when public participation and discourse is denied on the grounds of ‘strategic and tactical advantages’?
In TTIP negotiation and other processes, transparency = accountability and legitimacy
As we recently pointed out in a post on the “trilogue” process in Europe, transparency is absolutely critical to achieving accountability. It’s imperative that we take steps to ensure that the voices of users are heard, in the TTIP negotiations and other important policy and law-making processes. Governments can and must do more to improve transparency. They can publish negotiation documents and provide other kinds of access to negotiations currently conducted behind closed doors, such as those we outlined for the trilogue process. This would increase the public’s levels of confidence and trust in these agreements and the officials driving them, enhancing legitimacy. Public consent is critical for any large-scale change in society. Increasing transparency is the best pathway for ensuring the public’s voice in these proceedings.
Contribution by Trisha Shetty.