Bring in the Nerds: Secrecy, National Security and the Creation of International Intellectual Property Law

Abstract

The negotiations of the international Anti-Counterfeiting Trade Agreement and Trans Pacific Partnership Agreement have been conducted largely in secret, elevating intellectual property piracy to the level of national security concerns for purposes of accessing information through the Freedom of Information Act (FOIA). However, the level of actual secrecy has been tiered, with corporate interests enjoying far more access to negotiation information than the general public. At the same time, similar intellectual property issues were negotiated in the relative transparency of Congress’ debate over the Stop Online Piracy Act and PROTECT IP Act, allowing for much greater public involvement. With national security concerns as the backdrop, the focus of this Article is the use of national security arguments to prevent the public, and more specifically, public experts (i.e., the “nerds”) from accessing information through FOIA about the creation of international intellectual property law. The Article proposes ways to address the information failures existing in international intellectual property lawmaking and international lawmaking more generally from policy and, as introduced in this Article, theoretical perspectives.

Keywords: SOPA, PIPA, ACTA, TPP, national security, FOIA, freedom of information, copyright, international law, sunshine