Fast Track Bill Would Legitimize White House Secrecy and Clear the Way for Anti-User Trade Deals


April 16, 2015


Following months of protest, Congress has finally put forth bicameral Fast Track legislation today to rush trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) through Congress. Sens. Orrin Hatch and Ron Wyden, and Rep. Paul Ryan, respectively, introduced the bill titled the Bipartisan Congressional Trade Priorities and Accountability Act of 2015. With Fast Track, lawmakers will be shirking their constitutional authority over trade policy, letting the White House and the U.S. Trade Representative pass Internet rules in back room meetings with corporate industry groups. If this passes, lawmakers would only have a small window of time to conduct hearings over trade provisions and give a yea-or-nay vote on ratification of the agreement without any ability to amend it before they bind the United States to its terms.


The Fast Track bill contains some minor procedural improvements from the version of the bill introduced last year. However, these fixes will do little to nothing to address the threats of restrictive digital regulations on users rights in the TPP or TTIP. The biggest of these changes is language that would create a new position of Chief Transparency Officer that would supposedly have the authority to “consult with Congress on transparency policy, coordinate transparency in trade negotiations, engage and assist the public, and advise the United States Trade Representative on transparency policy.” ...However, given the strict rules of confidentiality of existing, almost completed trade deals and those outlined in the Fast Track bill itself, we have no reason to believe that this officer would have much power to do anything meaningful to improve trade transparency, such as releasing the text of the agreement to the public prior to the completion of negotiations. As it stands, the text only has to be released to the public 60 days before it is signed, at which time the text is already locked down from any further amendments.


There is also a new "consultation and compliance" procedure, about which Public Citizen writes:
The bill’s only new feature in this respect is a new “consultation and compliance” procedure that would only be usable after an agreement was already signed and entered into, at which point changes to the pact could be made only if all other negotiating parties agreed to reopen negotiations and then agreed to the changes (likely after extracting further concessions from the United States). That process would require approval by 60 Senators to take a pact off of Fast Track consideration, even though a simple majority “no” vote in the Senate would have the same effect on an agreement. Thus, essentially the Fast Track bill does the same as it ever did—tying the hands of Congress so that it is unable to give meaningful input into the agreement during its drafting, or to thoroughly review the agreement once it is completed.


.....But more troubling than what has been included in the negotiating objectives, is what has been excluded. There is literally nothing to require balance in copyright, such as the fair use right. On the contrary; if a country's adoption of a fair use style right causes loss to a foreign investor, it could even be challenged as a breach of the agreement, under the investor-state dispute settlement (ISDS) provisions. Further, the "Intellectual Property" section of today's bill is virtually identical to the version introduced in 2002, and what minor changes there are do not change the previous text's evident antipathy for fair use. So while the new bill has added, as an objective, "to ensure that trade agreements foster innovation and promote access to medicines," an unchanged objective is "providing strong enforcement of intellectual property rights." What happens if those two objectives are in conflict? For example, in many industries, thin copyright and patent restrictions have proven to be more conducive to innovation than the thick, "strong" measures the bill requires. Some of our most innovative industries have been built on fair use and other exceptions to copyright—and that's even more obvious now than it was in 2002. The unchanged language suggests the underlying assumption of the drafters is that more IP restrictions mean more innovation and access, and that's an assumption that's plainly false. . . .All in all, we do not see anything in this bill that would truly remedy the secretive, undemocratic process of trade agreements. Therefore, EFF stands alongside the huge coalition public interest groups, professors, lawmakers, and individuals who are opposed to Fast Track legislation that would legitimize the White House's corporate-captured, backroom trade negotiations. The Fast Track bill will likely come to a vote by next week—and stopping it is one sure-fire way to block the passage of these secret, anti-user deals.


https://www.eff.org/deeplinks/2015/04/fasttrack-bill-legitimize-white-house-secrecy-and-clear-way-anti-user

AUSTIN - Well, this could make for an awkward conversation at Thanksgiving dinner. Former Republican presidential candidate Ron Paul on Saturday dismissed as a "joke" the letter that U.S. senators of his party sent to Iran officials to assert their power in a potential deal over the Middle East country's nuclear capabilities.

"They're out to stop peace," Paul said at a conference at the University of Texas, which also featured journalists Glenn Greenwald and Radley Balko. "They're terrified that peace might break out."

Paul's son, Sen. Rand Paul of Kentucky, who announced how own presidential bid earlier this week, signed the letter. . . . . .



Much has been made of the relationship between the Pauls ahead of the election, with the general narrative being the candidate needs to maintain his dad's base while also reaching out to more "mainstream" voters....Dondero added that the topic frequently comes up during Thanksgiving dinner. "The rumor is that they sit there throwing turkey legs at each other, and it wouldn't surprise me," he said.....



http://www.chron.com/news/houston-texas/houston/article/Ron-Paul-Senate-s-Iran-letter-a-joke-6193986.php

I have some bad news.

This week, a bill to give the president Fast Track authority -- designed to push through the Trans-Pacific Partnership with little public debate -- will be introduced in the Senate.

The TPP is a disastrous trade agreement designed to protect the interests of the largest multi-national corporations at the expense of workers, consumers, the environment and the foundations of American democracy. It will also negatively impact some of the poorest people in the world.

Big corporations wrote the TPP behind closed doors. Incredibly, while Wall Street, the pharmaceutical industry, and major media companies have full knowledge as to what is in this treaty, the American people and members of Congress do not. They have been locked out of the process.

All Americans, regardless of political ideology, should be opposed to the "Fast Track" process which would deny Congress the right to amend the treaty and represent their constituents' interests.

I will help lead the fight in the Senate to stop the Fast Track bill. Will you stand with me? Sign my petition and tell the Senate: Reject Fast Track authority for the TPP.

Let's be clear: the TPP is much more than a "free trade" agreement. It is part of a global race to the bottom to boost the profits of large corporations and Wall Street. Here are just a few of the ways the TPP is going to destroy the American economy. The TPP will:

Outsource jobs
Undercut workers' rights
Dismantle labor, environmental, health, food safety, and financial laws
Allow corporations to challenge our laws in international tribunals rather than our own court system

If the TPP was such a good deal for America, the administration should have the courage to show the American people exactly what is in this deal, instead of keeping the content of the TPP a secret.

We can stop Fast Track authority for the TPP in the Senate. Opposition from both parties is growing and momentum is building. With your support we can show Senators that the American people do not want them to give up their power to fix a bad deal.

Will you stand with me and DFA to stop the TPP? Sign our petition today and tell the Senate: Say NO to Fast Track!

Thank you for standing up against the TPP.

Sen. Bernie Sanders

TPP Opponents Mobilize as Powerful Forces Seek to Ram Through 'Fast Track' Trade Authority


Lawmakers in favor of the pro-corporate trade deals hope to vote on Fast Track legislation in mid-April




With Congress "dangerously close" to ramming through trade promotion authority, or Fast Track, by mid-April—in turn smoothing the way for passage of corporate-friendly trade deals like the Trans-Pacific Partnership—lawmakers and activists are scrambling to sway key figures in the debate. Senate Majority Leader Mitch McConnell (R-Ky.) reportedly said last week that he wants the Senate Finance Committee to approve a Fast Track bill "very quickly after we come back" from the Easter recess on April 13. Committee chair Orrin Hatch (R-Utah), who has been leading the effort to gather legislative support for Fast Track, suggested he was coming close to an agreement with the committee's ranking member, Sen. Ron Wyden (D-Ore.). Wyden is seen as a crucial player in Fast Track negotiations, with the New York Times suggesting in early March that the fate of President Barack Obama's trade agenda "appears to rest on the narrow, somewhat wobbly shoulders of Mr. Wyden, a position acknowledged by both parties and the White House with some trepidation.". . . . .




Senator Ron Wyden, chairman of the Senate Finance Committee.



Aware that the window is swiftly closing, opponents continue to mobilize against the Fast Track authority that they fear would allow pro-industry trade deals like the TPP to sail through Congress without amendments. . . . According to The Hill, U.S. Sen. Elizabeth Warren (D-Mass.) met last week with House Democrats "to discuss the investor-state dispute settlement (ISDS) process, one of the most controversial issues in two trade deals that the Obama administration is negotiating." . . . . . ISDS was at the center of last week's WikiLeaks revelations, which showed that if the secretive Trans-Pacific Partnership goes through as written, it will dramatically expand the power of corporations to use closed-door tribunals to challenge—and supersede—domestic laws protecting consumers, the environment, and public health.


"The meeting with Warren underscores the deep rift between the Democratic base and the administration on trade and highlights Warren's growing influence in the House among progressive members," writes The Hill journalist Kevin Cirilli. One of those members, Rep. Loretta Sanchez (D-Calif.), penned an op-ed published Monday in The Hill. In it, Sanchez declared: "Assessing what we know of the massive TPP only affirms what we’ve learned the hard way through past broken promises on trade pacts—it's a bad deal for American workers." Of the debate over trade promotion authority, she continued: "Congress should not take, or cede, their responsibility lightly. The Trans-Pacific Partnership is too secretive and potentially too damaging to be rushed through Congress via 'fast track' authority. Based on the past two decades of broken trade promises and "trust me" assurances from past presidents, our country can no longer take that chance."


Meanwhile, the internet activism group Fight for the Future on Monday parked a giant video screen near Capitol Hill highlighting Wyden's role in the Fast Track debate, calling on the senator to stand up for the internet protections and transparency by opposing "anti-democratic and outdated Fast Track legislation." . . . .


http://www.commondreams.org/news/2015/03/30/tpp-opponents-mobilize-powerful-forces-seek-ram-through-fast-track-trade-authority

How The TPP Agreement Could Be Used To Undermine Free Speech And Fair Use In The US


We've been writing a lot about the Trans Pacific Partnership (TPP) agreement over the past few years. There are many, many problems with it, but the two key ones are the intellectual property chapter and the investment chapter. Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy -- but neither the intellectual property section nor the investment chapter are really about free trade. In many ways, they're about the opposite: trying to put in place protectionist/mercantilist policies that benefit the interests of a few large legacy industries over the public and actual competition and trade. We've already discussed many of the problems of the intellectual property chapter -- which is still being fought over -- including that it would block the US from reforming copyright to lower copyright term lengths (as even the head of the Copyright Office, Maria Pallante has argued for).

And, last week, Wikileaks leaked the investment chapter, which is focused on corporate sovereignty provisions, officially known as "investor state dispute settlement" or "ISDS" (named as such, in part, because the negotiators know it sounds boring, so they hope the public won't pay attention). As people go through the details and the fine print, they're finding some serious problems with it. Sean Flynn has a very in-depth look at how the combination of these two chapters -- the IP chapter and the investment chapter -- could very likely threaten fair use (and, with it, undermine the First Amendment). . . . . . . .The full details as to how are a bit tricky to understand, because it involves digging through the leaked versions of both chapters, and understanding some of the subtle language choices, but it's a serious concern. Flynn's article also goes through the history of how such corporate sovereignty provisions have been expanded and increasingly used over the past decade or so. But the key part is this: the investment chapter certainly can (and will) be read to cover intellectual property as well, including the idea that a company can invoke the ISDS process if it feels its "intellectual property" has been "expropriated" in some manner. The word "investment" in the investment chapter is defined incredibly broadly and explicitly includes "intellectual property" as well as "other tangible or intangible, movable or immovable property." It also, importantly, notes that an investment, for the purpose of ISDS, covers: every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Now, it's no secret that the legacy entertainment industry is no fan of fair use (even if they often rely on it themselves). While fair use is officially part of the law in the US, the entertainment industry just recently fought very hard to block it in the UK and Australia, arguing (ridiculously) that fair use would harm innovation. . . . . .


. . . .And here is a major one lurking in the shadows. Many copyright intensive industries are hostile to the U.S. fair use doctrine and many of the decisions of courts emanating from it. There have been arguments raised from time to time that the doctrine or its applications are contrary to the so-called Berne 3-step test requiring that limitations and exceptions to rights be limited to certain special cases, not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author (see this rebuttal from Gervais et al.). No other country has attempted to sue the U.S. or the nearly dozen other countries around the world that have fair use. But will the content industry be so reticent with such challenges in the future? With the TPP ISDS chapter, they will not have to in 40% of the global economy. . . . . . . . .And this isn't so far fetched. As we've been discussing, under existing ISDS/corporate sovereignty provisions in NAFTA, Eli Lilly is currently suing Canada for $500 million because Canada refused to grant it some patents. Eli Lilly is arguing that this "expropriated" Eli Lilly's "intellectual property" and took away its "expected profits." Is it that difficult to believe that a recording studio or movie studio might make a similar argument on a fair use determination on one of its copyright-covered works?

And, if fair use is undermined, so is free speech. As we've noted, the Supreme Court itself has long argued that current fair use doctrine is a necessary "safety valve" in making sure that copyright does not violate the First Amendment. In other words, fair use is a key part of your First Amendment rights. . . . . . . . . . . .And yet, the USTR is basically putting in place a plan and system to undermine this, because the big copyright players are among the very few people who are allowed to see the negotiating text and to "advise" the USTR on what should be in it. Once again, it would seem like the most obvious way to deal with this would be for the USTR to release the negotiating documents, so that the public would be aware of what's being negotiated, and could discuss the possible consequences -- like how the current rules have the potential to undermine fair use and free speech. But, for reasons that the USTR still will not explain (perhaps because they reveal the USTR's true reasoning for such provisions), it refuses to do so.


https://www.techdirt.com/articles/20150328/07314930468/how-tpp-agreement-could-be-used-to-undermine-free-speech-fair-use-us.shtml

Trans-Pacific Partnership treaty will help neither workers nor consumers


By Katrina vanden Heuvel, in The Washington Post





. . . With tariffs already low, current trade treaties are focused less on tariffs and trade than on “harmonizing regulations” for investors. But these regulations concern worker rights, consumer and environmental protections, economic policies that are the expression of our democracy. Too often, “harmonization” is simply an excuse for corporations to institute a race to the bottom. . . . . . .U.S. negotiators forcefully demand other countries pay a price for greater access to the U.S. market. But that price generally involves one or another corporate lobby, not the interests of the American people. So our drug companies get protections against the introduction of generic drugs, driving up prices abroad. Our agribusiness gets protection for its genetically altered foodstuffs. Wall Street gets rules making the sale of arcane derivatives easier.

The TPP is a classic expression of the way the rules are fixed to benefit the few and not the many. It has been negotiated in secret, but 500 corporations and banks sit on advisory committees with access to various chapters. The lead negotiator, Michael Froman, was a protege of former Treasury secretary Robert Rubin, and followed him from Treasury to Citibank, the bank whose excesses helped blow up the economy before it had to be bailed out. Although corporations are wired in, the American people are locked out of the TPP negotiations. And, as Sen. Sherrod Brown (D-Ohio) said, “Members of Congress and their staff have an easier time accessing national security documents than proposed trade deals, but if I were negotiating this deal I suppose I wouldn’t want people to see it either.”

The brutal negotiations of the TPP haven’t been about tariffs but about protections and regulations. Last week, the draft chapter concerning the “Investor-State Dispute Settlement” mechanism was leaked to Wikileaks and the New York Times. Essentially, the chapter allows a company to sue for taxpayer damages if a government (federal, state or local) passes laws or take actions that the company alleges will impinge on future expected profits. The “tribunal” is a panel of lawyers, drawn from a small group of accredited international lawyers who serve both as judges and advocates. If successful the companies can collect millions in damages from governments. The provisions are so shocking that the TPP mandates that the chapter not be declassified until four years after the TPP goes into force or fails to pass. . . . . The administration says we shouldn’t worry about this, because the United States has never lost a case and that the dispute mechanism is basically designed to be used on countries with weak or corrupted legal systems. But as Sen. Elizabeth Warren (D-Mass.) has noted, Philip Morris has already sued Uruguay because of its new anti-smoking regulations that have been lauded globally. A French company sued Egypt for raising the minimum wage; a Swedish company sued Germany for phasing out nuclear power.

How do trade treaties that undermine workers, cost jobs and create a private, corporate global arbitration system get through Congress? The answer, of course, is the corporate lobby that writes the rules mobilizes big money and armies of lobbyists to drive them through. Most Democrats oppose the treaties, but the Wall Street wing of the party tends to support them. Conservatives would naturally oppose secretive global panels that can force taxpayers to pay damages to companies, but the U.S. Chamber of Commerce and the Business Roundtable round up votes to get the treaty passed. . . . . So remember, when the president argues that it is vital that “we” write the rules, “we” means not the American people, but corporate and financial interests. . . . . President Obama has dramatically called inequality the defining challenge of our time. But the reason the 1 percent capture virtually all of the income growth in this society, the reason working families are struggling simply to stay afloat, is that the rules are rigged by the powerful to favor themselves. Our trade policies are clear examples of that. America’s middle class will continue to sink until “we” means the American people, not Wall Street and the corporate lobby. . . . .



http://www.washingtonpost.com/opinions/trans-pacific-partnership-treaty-will-help-neither-workers-nor-consumers/2015/03/31/145e98ba-d727-11e4-ba28-f2a685dc7f89_story.html

The new chair of the powerful Senate Energy and Natural Resources Committee secured a vote Thursday afternoon in the U.S. Senate on a controversial proposal to sell off America’s national forests and other public lands. U.S. Senator Lisa Murkowski’s (R-AK) amendment, which passed by a vote of 51 to 49, is now part of the Senate’s nonbinding budget resolution. The proposal would support and fund state efforts — which many argue are unconstitutional — to seize and sell America’s public lands. These include all national forests, wildlife refuges, wilderness areas, historic sites, and national monuments. Murkowski’s amendment, which would need further legislation to become law, follows a similar proposal from House Natural Resources Committee Chair Rob Bishop (R-UT) to spend $50 million of taxpayer dollars to fund the sale or transfer of U.S. public lands to states.

The land grab proposals in Congress this year appear to echo the calls of outlaw rancher Cliven Bundy, best known for his armed standoff with federal officials last year, who has infamously refused to recognize the authority of the federal government, including over public lands.

Murkowski’s proposal to sell off public lands, however, is meeting stiff opposition from other western senators. On a conference call yesterday, Senators Martin Heinrich (D-NM) and Michael Bennet (D-CO) said that they are determined to turn back legislative attacks on the outdoors. Bennet called efforts to sell off lands to reduce the federal deficit “an assault on our public lands.” . . . . Senator Heinrich also introduced an amendment Wednesday which would block any effort to sell off public lands to reduce the federal deficit. Heinrich said that “selling off America’s treasured lands to the highest bidder would result in a proliferation of locked gates and no-trespassing signs in places that have been open to the public and used for generations.”

Public opinion research has found that a majority of Westerners oppose land grab efforts and believe that transferring public lands to state control will result in reduced access for recreation; higher taxes; increased drilling, mining and logging; and a high risk that treasured public lands will be auctioned off to the highest bidder. . . . .


http://thinkprogress.org/climate/2015/03/26/3639683/senate-sell-off-public-lands/

Alphabetical by Senator Name

Alexander (R-TN), Nay
Ayotte (R-NH), Nay
Baldwin (D-WI), Nay
Barrasso (R-WY), Yea
Bennet (D-CO), Nay
Blumenthal (D-CT), Nay
Blunt (R-MO), Yea
Booker (D-NJ), Nay
Boozman (R-AR), Yea
Boxer (D-CA), Nay
Brown (D-OH), Nay
Burr (R-NC), Yea
Cantwell (D-WA), Nay
Capito (R-WV), Yea
Cardin (D-MD), Nay
Carper (D-DE), Nay
Casey (D-PA), Nay
Cassidy (R-LA), Yea
Coats (R-IN), Yea
Cochran (R-MS), Yea
Collins (R-ME), Yea
Coons (D-DE), Nay
Corker (R-TN), Yea
Cornyn (R-TX), Yea
Cotton (R-AR), Yea
Crapo (R-ID), Yea
Cruz (R-TX), Yea
Daines (R-MT), Yea
Donnelly (D-IN), Nay
Durbin (D-IL), Nay
Enzi (R-WY), Yea
Ernst (R-IA), Yea
Feinstein (D-CA), Nay
Fischer (R-NE), Yea
Flake (R-AZ), Yea
Franken (D-MN), Nay
Gardner (R-CO), Nay
Gillibrand (D-NY), Nay
Graham (R-SC), Yea
Grassley (R-IA), Yea
Hatch (R-UT), Yea
Heinrich (D-NM), Nay
Heitkamp (D-ND), Nay
Heller (R-NV), Yea
Hirono (D-HI), Nay
Hoeven (R-ND), Yea
Inhofe (R-OK), Yea
Isakson (R-GA), Yea
Johnson (R-WI), Yea
Kaine (D-VA), Nay
King (I-ME), Nay
Kirk (R-IL), Yea
Klobuchar (D-MN), Nay
Lankford (R-OK), Yea
Leahy (D-VT), Nay
Lee (R-UT), Yea
Manchin (D-WV), Nay
Markey (D-MA), Nay
McCain (R-AZ), Yea
McCaskill (D-MO), Nay
McConnell (R-KY), Yea
Menendez (D-NJ), Nay
Merkley (D-OR), Nay
Mikulski (D-MD), Nay
Moran (R-KS), Yea
Murkowski (R-AK), Yea
Murphy (D-CT), Nay
Murray (D-WA), Nay
Nelson (D-FL), Nay
Paul (R-KY), Yea
Perdue (R-GA), Yea
Peters (D-MI), Nay
Portman (R-OH), Yea
Reed (D-RI), Nay
Reid (D-NV), Nay
Risch (R-ID), Yea
Roberts (R-KS), Yea
Rounds (R-SD), Yea
Rubio (R-FL), Yea
Sanders (I-VT), Nay
Sasse (R-NE), Yea
Schatz (D-HI), Nay
Schumer (D-NY), Nay
Scott (R-SC), Yea
Sessions (R-AL), Yea
Shaheen (D-NH), Nay
Shelby (R-AL), Yea
Stabenow (D-MI), Nay
Sullivan (R-AK), Yea
Tester (D-MT), Nay
Thune (R-SD), Yea
Tillis (R-NC), Yea
Toomey (R-PA), Yea
Udall (D-NM), Nay
Vitter (R-LA), Yea
Warner (D-VA), Nay
Warren (D-MA), Nay
Whitehouse (D-RI), Nay
Wicker (R-MS), Yea
Wyden D-OR), Nay


http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=114&session=1&vote=00106

Maker of tainted medical scopes issues new cleaning guide
By MATTHEW PERRONE, AP Health Writer, March 26, 2015


WASHINGTON (AP) — The maker of medical scopes that have been linked to two recent "superbug" outbreaks at California hospitals has issued new cleaning instructions for the devices amid scrutiny from regulators, lawmakers and medical professionals. . . . Olympus America sent the new guidelines to U.S. hospitals on Thursday, recommending that its customers begin using them as soon as possible. The updated guidelines call for using a smaller cleaning brush and additional flushing steps to remove debris and disinfect the scope's crevices and hinges. Olympus plans to send the new brush to hospital customers by May 8.

The company's scopes were linked to infections of antibiotic-resistant bacteria in 11 patients at two separate Los Angeles hospitals last month, contributing to the deaths of two of those patients. Hospital staff said the infections occurred despite following Olympus' instructions for cleaning the devices, known as duodenoscopes. . . . The scopes consist of a flexible fiber-optic tube that is threaded down the throat, through the stomach and small intestine to diagnose and treat conditions in the pancreas and bile ducts. The tip of the scope includes moveable parts for instruments to help remove tumors, gallstones and other blockages. But this complex design also makes the instruments difficult to clean. Bodily fluids and other debris can stay in the device's joints and crevices even after cleaning and disinfection.

The FDA said in a statement it is reviewing the new cleaning instructions from Olympus as part of a broader evaluation of the company's device. . . . The agency previously disclosed that Olympus did not seek federal clearance for the latest version of its duodenoscope, which it began selling in 2010. FDA clearance is required for all substantive updates to medical devices sold in the U.S. The company's Olympus TJF-Q180V duodenoscope is currently under FDA review. . . . Seven lawsuits have been filed against Olympus in Los Angeles County Superior Court on behalf of patients, alleging negligence and fraud by the company.

http://www.chron.com/news/medical/article/Maker-of-tainted-medical-scopes-issues-new-6161040.php