LawFont.com

Google has a new public policy blog, and in an interesting post, Andrew McLaughlin (their Director of Public Policy and Government Affairs) notes a story now circulating – that Google has been having

fairly quiet discussions …with various parts of the U.S. government, including the Departments of State and Commerce, the Office of the U.S. Trade Representative, and various House and Senate committees.

in which Google has been making the case that ‘For Google, it is fair to say that censorship constitutes the single greatest trade barrier we currently face’, and that:

Just as the U.S. government has, in decades past, utilized its trade negotiation powers to advance the interests of other U.S. industries, we would like to see the federal government take to heart the interests of the information industries and treat the elimination of unwarranted censorship as a central objective of our bilateral and multilateral trade agendas in the years to come.

This has of course elicited some of the expected critiques – ‘how can Google say this when it actively collaborates with censorship in foreign countries’. Personally, I think that’s a pointless and ill-considered criticism – Google might well be censoring now – because, oh, it has to under the laws of the countries where it operates. That doesn’t prevent it actively trying to break down the censorship rules so it can stop complying with them.

I think there’s more serious criticisms that need to be borne in mind by Google when it makes this argument about injecting its concerns into bilateral trade negotiations. As someone who is based in Australia – a country that has had a bilateral trade negotiation with the US – I find the idea of the US injecting even more policy issues outside immediate trade issues into its FTAs a bit offensive. I know, from the Australian experience, what this means. And that is, that good as the intention might be, it is likely to become seriously perverted by the USTR and trade negotiation process. I hope (in the spirit of constructive criticism) that Google gives serious thought to whether this can work as it might hope, even in the most hospitable environment.

The US process of bilateral trade negotiations goes something like this. Congress sets the trade objectives that USTR must pursue – in law, when it passes Trade Promotion Authority (see, US Trade Act of 2002). USTR pursues those through a series of bilateral negotiations. The USTR method is to develop ‘standard form’ text, a bit like a standard form contract. That standard text is put to each trade partner, basically on a take it or leave it basis: you want trade agreement with us? You accept all these Chapters on all of these areas. Even though they delve deep into your domestic policy-making process. Even if they are inconsistent with your current laws. And no, we (the USTR) are not going to bother thinking about the details of your law or whether the interests we are promoting are already protected by your law.

In practice, the USTR is in a poor position to make assessments about whether new rules are required in the partner country, or whether rules, in the preferred US-model shape, are a good idea. The perfectly understandable aim of USTR is to get an agreement, which will pass through Congress. To achieve that aim, they tend to put in detailed rules that will please members of Congress and lobbyists in the US. Of course, I’m thinking of the way that US copyright and IP laws were imposed on Australia – which already had an advanced, copyright-protective system in place. Such rules are not necessarily going to work in the recipient country, which will have different legal traditions.

Remember too, that this process tends to lead to a political reaction within the trade partner. The AUSFTA has engendered lasting criticism in Australia because of the way it interfered with domestic policy in all kinds of different areas where the USTR saw ‘trade barriers’. This has fed anti-US sentiment here in Australia – and continues to do so. Similar reactions have been seen all over the world.

Now, this is not to criticise the aim of promoting free speech. I am just not convinced that these ‘good aims’ won’t become seriously warped in the USTR and trade negotiating process, and won’t end up imposing US rules ‘wholesale’ into other countries’ legal systems without regard to how they will work in practice. And even though I support the protection of free speech, and would like to see more protection of free speech in Australia, i would hate to see it imposed by the US, in a way that leads to political resistance here and lip-service implementation. The method is flawed, and I oppose its use in any context. Until I am convinced that this method can achieve good, worthwhile ends, I would hesitate to favourably view any attempt, by Google or anyone else, to start injecting free speech rules into bilateral trade negotiations.