The Trans-Pacific Partnership Intellectual Property Rights Chapter released to WikiLeaks late last year contains a Trade Secrets section that allows for the criminalization of investigative journalists and whistleblowers.
The worlds largest economic agreement covering at least 40% of the international economy remains classified by all member governments in an effort to avoid public disclosure, but despite their best efforts to keep those most effected in the dark, text of the Trans-Pacific Partnership has been partially published online. In late 2014 the Intellectual Property Rights Chapter was released to WikiLeaks by an anonymous source revealing that under Article QQ.H.8, investigative journalists and whistleblowers would be subject to criminal prosecution for unauthorized disclosure of "trade secrets".
The World Trade Organization's Intellectual Property Rights agreement establishes a minimum definition of what constitutes an unlawful release of information, and is included as the foundation for the Trade Secrets section of the TPP. "Undisclosed information" as defined by the WTO and implemented as part of the TPP includes data submitted to a government or governmental agency "...as a condition of approving the marketing of pharmaceutical or of agricultural chemical products". But this is only the beginning, the TPP Trade Secrets section goes on to allow for criminal prosecution for "unauthorized, willful access to a trade secret held in a "computer system", the unauthorized and willful misappropriation of a trade secret, or the fraudulent (or unauthorized) disclosure of a trade secret, all illegal and especially so if released by means of a computer system.
The purpose of this section can only be interpreted to act as a chilling effect on individuals who would reveal corporate or government wrongdoing via the internet, aka a "computer system", and discards the defense for investigative journalists that the information was provided by an anonymous source when that information is defined as an "unauthorized disclosure". It's also a direct attack on potential whistleblowers who may come across classified trade secrets that are deemed a specific threat to public safety or are seen as a violation of law in their day-to-day position within the government.
Governments were given sole discretion to classify information before TPP, and did so primarily for national security purposes that have been found illegal in some instances, such as in the NSA phone spying scandal revealed by Edward Snowden. Classified information existed within a fairly well defined legal arena with governments having jurisdiction to develop legal standards to protect release of classified information, to pursue criminal prosecutions for alleged violations, and to assess criminal penalties when a guilty verdict was issued. Here, the Trans-Pacific Partnership assigns corporate information or, "trade secrets" the same importance as national security concerns by allowing corporations to file for criminal enforcement when the released information may be detrimental to a party's economic interests, is related to a product or service intended for international commerce, or for perceived purposes of financial gain or commercial advantage.
To clarify, criminalization for release of trade secrets is independent of the corporate tribunals known as Investor State Dispute Settlements (ISDS) that give foreign corporations authority to sue a government for estimated economic losses due to implementation of laws or regulations approved by the electorate of that nation. But although they function in different realms of the agreement, they are uniquely connected. Not only would an investigative journalist or whistleblower be subject to prosecution under the trade secrets section of TPP, but a corporation may be able to argue that the unauthorized release negatively effected their ability to do business, and as such the law allowing for whistleblower protection or freedom of the press substantiates a claim before the ISDS.
Obama is no stranger to dealing with leaks of classified information, and is argued to have prosecuted more whistleblowers under his administration than any other before it. During his tenure as President there have been eight prosecutions under the 1917 Espionage Act, but now with new authorities under TPP if passed, those types of prosecutions are likely to increase dramatically as a whole new category of classified information is brought into existence.
