Putting the Public’s Interest Back Into the “Public Interest”

What’s your definition of the “public interest” when it comes to law and lawmaking?  Is it a unitary concept, where we consider the good of society as a whole?  If so, you might think that the public’s interest is in a “public interest” which encompasses “cross-cutting issues” that transcend narrow considerations and allows debate about and among competing interests.  On the other hand, do you view the “public interest” more narrowly?  If so, you might view the public’s interest as served by placing “public interest” in a box separate from other interests, like environmental, labor or intellectual property policy.  From that perspective, the “public interest” is just another consideration in the panoply of considerations that make up society.

This sounds like a law professor’s abstract opening question to a class on administrative law about how decisions get made in regulatory agencies.  And it is, but it is also a question that is now front-and-center outside the classroom and in the ongoing battles over who gets to have meaningful access to information and input about international rules for access to medicine, copyright piracy and host of intellectual property law (IP) issues currently being debated in the waning Trans Pacific Partnership (TPP) and the relatively new Trans-Atlantic Trade and Investment Partnership (TTIP)  negotiations.  My question must be answered correctly if we want the United States Trade Representative (USTR ), which is charged with negotiating TPP and TTIP on behalf of the United States, to be fully and completely informed. 

Unfortunately, the “public’s interest” and the “public interest” are being defined narrowly and differently in the administrative advisory process known as the USTR’s industry trade advisory committee (ITAC) system.  For now, the USTR conceives the public’s interest as served by placing the “public interest” in a separate box from other policy considerations.   This is a dangerous development because use of a narrow definition could further polarize an already deeply polarized lawmaking process, leading to an increased likelihood of imbalanced and dangerous law that many countries, from the US to Singapore, would have to follow.   Instead, I propose that the ITAC system should define the public's interest and the "public interest" broadly so as to increase the chances of having balanced and nuanced law emerge from these negotiations.

So why are these ITACs so important?  The ITAC system is a framework wherein the USTR, who represents the US in the negotiations, receives official input from industries impacted by trade, ranging from intellectual property rights to steel.  The ITACs exist to allow regulated industries to offer their perspective on what is needed from the federal government to support their industries.  But because these industries are themselves defined narrowly, ITAC membership has been decidedly lopsided, made up of almost exclusively businesses and their representatives (and in the case of IP, only a few industries that rely on IP law).  Because only members of ITACs (and certain members of Congress) have access to the negotiating texts and related documents, no one else has been able to fully grasp the contours of the negotiations or offer informed input.  Civil society groups such as the Electronic Frontier Foundation (EFF), academic organizations like American University's Program on Information Justice and Intellectual Property and all members of the public not represented on an existing ITAC have been in the proverbial cold. 

Presumably in order to address mounting criticism that the ITAC system does not allow for a full range of input and leads to imbalanced law, the USTR recently opened the process for the creation of a new ITAC called the “Public Interest Trade Advisory Committee” (PITAC).  While the USTR should be thanked for beginning to address this extraordinary bottleneck in international IP lawmaking, there’s a structural problem: rather than integrate civil society groups like the EFF into the existing Intellectual Property (IP) ITAC, the USTR’s proposed PITAC separates the “public interest” groups from the other ITACs.  This development suggests that the USTR conceives the “public interest” as distinct from the interests of the regulated industries that make up the ITACs.  Alas, as things have developed, the ITACs’ interests are pursued by the USTR, a governmental entity that in theory should reflect the public’s interest in having policy that encompasses not just the interests of the ITACs, but of the United States as a whole.    

This situation is confusing and/or perplexing, which is why we have to wrestle with the answer to my question.  We must clarify the meaning of “public interest” in order to decide the contours of our international lawmaking process.  In order to allow the possibility of balanced law to emerge from these negotiations, rather than a wish-list of law representing one side of an issue, we must know what we mean when we say that the “public interest” is represented in the lawmaking process.

Hence the question: what do we mean by “public interest?”  As Mike Masnick has pointed out, “You'd think that the entire point of what the USTR does is that it should be negotiating agreements in the public interest, and yet as far as I can tell, they've now admitted that was never the case before, and now they seem to think that rather than being an overreaching aim of all trade agreements, that it's one of multiple ‘competing interests.’” (emphasis in original).  Sean Flynn has noted that a separate “public interest” ITAC was the core of a proposal made by the chairs of the ITACs back in 2010.  Putting aside concerns that the PITAC (a) will operate secretly (itself ironic given that it is hyper-secrecy that has resulted in the criticism to which the USTR is presumably responding), (b) not even have the level of access that the IP ITAC and others currently enjoy, and (c) perhaps preclude academics from membership, the broader concern is the narrowing of our understanding of the public’s interest through a “public interest” ITAC.

To comprehend how we got here, consider this statement by the chairperson of an ITAC from a 2010 ITAC chair’s meeting:       

In the past, we did have environmental representatives on [the ITAC for Chemicals, Pharmaceuticals, Health Science Products and Services]. When they chose to participate, it made life very, very difficult. Most of the issues were not specific to our sector. They were more cross-cutting issues like overall environmental policy or investment policies. Frankly, in a way, we bored them to death so they rarely showed up. . . . But when they were in attendance, it made life very difficult.

This is a fascinating and troubling statement because it suggests that the advisory system may not be captured by industry as much as it is fulfilling its accepted and intended mission.  In other words, the USTR conceives the advisory system’s role as a venue for advocacy of an amalgam of narrow industry-specific goals, rather than providing a forum for fleshing out competing interests, policy objectives and visions of the law(s) at issue.  While the ITAC problem is only one important element of a larger picture, as Margot Kaminski has explained, this viewpoint reflects the myopia in the entire lawmaking process and might explain (at least in large part) why current efforts to create international IP and technology law, particularly after the Stop Online Piracy Act’s defeat, have been marred by a shocking amount of one-sidedness. 

Conceived this way, the “public interest” is just another narrow set of wants and desires, the same as those of the tobacco or entertainment industries.  To be fair, in a sense it is, as the public’s interest in balanced law may not be synonymous with the entertainment industry’s.  For example, the need for a powerful fair use exception in copyright law, advocated by civil society groups like EFF and companies like Google, is now regularly challenged by the entertainment industry that dominates the IP ITAC and which sees robust fair use as a threat.  But creating a PITAC only exacerbates the positioning of the public interest (and even Google’s interest) as opposed to that of the IP industry – when, in fact, those interests, even if not completely aligned, might be balanced if there were a formal venue within the trade advisory system for meaningful interaction and debate of policy options. 

That balancing effort is (or should be) the public’s interest so long as we conceive the public as being comprised of more than certain industries.  Therefore, we must return to the question of the meaning of “public interest.”  If the public’s interest in having law that reflects the competing concerns of its citizenry are put in the “public interest” box called PITAC, rather than integrated into the lawmaking process at every input step, we should not be surprised at the imbalanced and problematic output, as well as the continued tension between IP industries and IP consumers – that is, the public. 

Assuming that this is the core of the problem, what is the solution?  Of course, that is a complex question beyond the scope of this essay (but the subject of some of my upcoming work).  For present purposes, the above raises the question of whether debate and discussion in ITACs about competing policy interests would give USTR better information and leverage for its negotiation with other countries.  Perhaps the public’s interest would be best served by putting the “public interest” into the discussions about how best to promote the needs of regulated industries, reflecting the many uses of the IP principles and rules that are being  negotiated in TPP and TTIP.  Would that aid the USTR in its formal mission of “developing and coordinating U.S. international trade, commodity, and direct investment policy?”

As the core goal of the ITACs is to inform the USTR, it would seem that the USTR would be better educated by formal, structured debate about what is really needed to promote business interests within the existing ITACs.  As it stands now, the efforts to streamline and stratify the advisory process has placed the advisory system in the same information silo that has caused policy debate on blogs to become, in many instances, an echo chamber.   In sum, perhaps  ITACs need to be a little more messy and “cross-cutting” so as to serve the public’s interest in informed and rigorous policy debate and discussion inside those organizations that are charged with representing the US.

With regard to leverage, the USTR loses bargaining power by creating an advisory system that encourages domestic discord without any formal way to forge resolution and agreement.  USTR explains the benefit of the ITAC system as “display[ing] a united front when [USTR] negotiates trade agreements with other nations.”  That doesn’t exist given the public challenges to the USTR’s procedural position on secrecy and the substantive debate that exists, in part, because of it.  If anything, the current advisory system has achieved the opposite result, displaying a fractured front that strengthens the negotiating positions of the countries with whom the USTR is negotiating.  By integrating the “public interest” into the existing ITACs, the competing sides might be forced to confront each other with data and evidence so as to provide the USTR with a formal nuanced position that reflects the needs of all who desire functional IP law.   

If all of this sounds dry and procedural, maybe it is.  But it is also critical to getting to the substantive law and policy that will drive our nation and world forward.   Lawrence Lessig, who has turned his attention to the daunting task of trying to fix how we finance elections, has addressed the problem that “Americans don’t seem to care that much” about campaign finance by noting “that this corruption may not be the most important issue.”  He writes that corruption is nonetheless “the first issue that we, as a nation, have to solve. And that until we solve it, we will solve nothing else, sensibly.” 

We face the same situation here.  We have to care about this ITAC administrative law stuff.  The correct  answer to my question “what do we mean by the public interest” is needed because the answer is critically important to anyone who cares about access to medicine in countries where they are direly needed, sharing files on the Internet and engaging in “fair use” of copyrighted works, like mash-ups and criticism.  And those are just some of the intellectual property (IP) law issues; there are other areas of law in negotiation that have nothing to do with IP, ranging from the environment to health.

So what’s my answer?  The public’s interest is best served by inserting the unitary consideration of policy positions back into our definition of the “public interest.”  If we are to have a US negotiating position, and therefore international agreements, that aren’t doomed from the outset by alienating all but those who are given privileged access to information and input opportunities, the ITAC system must be reconceived to include the public interest in the public’s interest of a fully-informed ITAC advisory system.  Thus, a separate PITAC, as currently conceived, could exacerbate rather than resolve the existing problems in USTR lawmaking. 

So long as this procedural divide exists, we risk losing the substantive laws and policies, IP and more, that have allowed the United States to be the fertile ground of invention for the world to admire – and, ironically, copy.  We risk further entrenching the lawmaking process, and the public’s conception of the USTR, as captured by favored businesses rather than one that seeks diversity so as to craft negotiating positions that reflect the US’ interests as a whole.  And if that’s a bit more messy procedurally, such is the price for better law. 

So what’s your definition of “public interest?”  Comments (and your answer) are due to the USTR by this coming Tuesday, March 25th.

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