[bestbits] TRADE impacts on Net Neutrality

Nick Ashton-Hart nashton at consensus.pro
Wed Dec 17 13:27:55 EST 2014 

Dear Burcu,

Certainly the GATS exception for privacy has been criticised as allowing each country to do what it wishes with other nationals' data. There are TISA countries who are unable to take home that light of an obligation on privacy as it would conflict with much stronger provisions on privacy that they have in national law. I am told that this is a major issue in the talks now. In other words, more privacy-protecting formulations are being asserted, not the opposite. I am sure that perspective would welcome some civil society support for a more privacy-centric result; conversely, much of industry believes that each country should retain the freedom to decide for itself what level of protection is appropriate (in other words, a more GATS-like formulation is preferred by them).

On the national security exception: it has in the past been self judging in the WTO. However, GATS does provide for limitations on the scope of exceptions for this purpose as you know - the provision proposed by the US in TISA that the leak reveals is far broader - and it is specific to the Internet - where the broader agreement will contain a GATS-like (more limited) exception. 

The question here is not whether or not TISA (or any other trade agreement) will have a national security exception or not: they all do. The question is, will TISA have a special exception for the Internet, setting a precedent that effectively allows any country to say 'national security' and do whatever it likes vis a vis the Internet. I would strongly assert that this is a terrible precedent and that countries that assert this approach will open themselves to charges they are 'sanitising' Internet surveillance in trade policy. Whatever we may all think about trade deals, I would certainly suggest we should agree that this is a precedent that should not be set, especially by a major Western country that is meant to be an example of how to be an open, pluralistic society with support for human rights.

As to the appellate body, there is as yet no decision on how exactly TISA will fit into the WTO system, and it is far from clear that it will be subject to the dispute settlement system at all.

On 17 Dec 2014, at 18:39, Burcu Kilic <bkilic at citizen.org> wrote:

> Thank you Nick. I have to say that reliance on privacy exception specifically enumerated in the GATS XIV does not guarantee justification of the measure under that provision. In the light of recent decisions of the Appellate body, the GATS art XIV general exceptions turned out to be unpredictable by the necessity test and the chapeau. Even if there is a GATS-like exception in TISA, trade obligations could inhibit countries ability to protect privacy.
>  
> The national security exception is self-judging. It was used before by some WTO countries but interestingly the US has refused to submit to any dispute that has challenged those practices. There is no guidance on what it means or its limits as it has never been interpreted by the Appellate body.
>  
>  
>  
> From: bestbits-request at lists.bestbits.net [mailto:bestbits-request at lists.bestbits.net] On Behalf Of Nick Ashton-Hart
> Sent: Wednesday, December 17, 2014 11:54 AM
> To: Carolina Rossini
> Cc: <bestbits at lists.bestbits.net> bestbits at lists.bestbits.net&gt
> Subject: Re: [bestbits] TRADE impacts on Net Neutrality
>  
>  The text itself is here: https://data.awp.is/data/filtrala/15/tisa.cleaned.pdf
> 
> I have a few thoughts on this - I regularly talk to the negotiators of TISA, as I have done for a few years now when it was just an idea in a few countries' negotiators minds.
>  
> With respect to the offer having no specific exception for data privacy: you should know that the parties have said that there will be a GATS-like exception for that horizontally, meaning, across the entire agreement. I am verifiably informed that this will not be sufficient for some of the negotiating parties - including major economies. In other words there is going to be more robust privacy protections in TISA than in previous trade agreements as I am reliably informed without it a deal that includes coverage for electronic trade will not gain agreement.
>  
> I am surprised and disappointed that the national security exception didn't get more attention. This is an extremely broad exception, and what you all probably don't know is that, like privacy, there will be a GATS-like national security exception across the entire agreement. That means that this exception is, quite literally, for the Internet and it is broader than GATS' exception as the legal analysis mentioned.
>  
> I can tell you that a number of parties to the TISA talks - of all sizes of economy - have said that the national security exception makes all the obligations on the Internet voluntary because it is so broad. This, it seems to me, is a terrible signal to send to the many countries engaging in crackdowns on the Internet. Some of the other parties to TISA are Turkey and Pakistan. Aside from anything else, these are not countries that have a good record about the open Internet. Some of the most significant censorship moves that Turkey has made in 2014 happened near the time when they received the offer from the US in TISA. Perhaps this is a coincidence, but I have to wonder. 
>  
> While I understand the concern that a number of you will have about the text, if you look at it through a human rights lens, ensuring the free flow of data is a very positive thing - and local hosting obligations are used right now by repressive governments to ensure that content is accessible to it for censorship purposes - and to spy more capably on their own people. As far as privacy goes, you have to ask yourself if you really want it to be easy for personal data to be held in any country. Most countries have a pretty poor record of protecting privacy. Wouldn't you want data to be held where it is most likely to be kept securely? Isn't ensuring that countries can compete to host data based upon robust privacy protections a desirable objective?
>  
> I know that there are strong views on trade agreements, but I have to tell you, as a front-row witness to the terrible climate on Internet policy in Geneva, trade is one of the few bright spots where there are countries insisting on strong privacy protections and I know the negotiators do feel the weight of history on them not to enable censorship or other such practices through their work. That's why I was so disappointed to see the US sending such a terrible signal to the world in proposing an extremely broad national security exception.
>  
> On 17 Dec 2014, at 17:43, Carolina Rossini <carolina.rossini at gmail.com> wrote:
> 
> 
> coming later today it seems, but the language is mentioned in the briefing
>  
> On Wed, Dec 17, 2014 at 11:06 AM, Nick Ashton-Hart <nashton at consensus.pro> wrote:
> Thanks, Carolina, but where is the leaked text itself?
> 
> On 17 Dec 2014, at 16:47, Carolina Rossini <carolina.rossini at gmail.com> wrote:
>  
> press release from PC (our dear Burcu) and also a briefing distributed today by other groups going deeper on the issues
>  
> ---------- Forwarded message ----------
> From: Melinda St. Louis <mstlouis at citizen.org>
> Date: Wed, Dec 17, 2014 at 10:36 AM
> Subject: [tpp-allies] PC Press Release: Obama "trade" text leak: net neutrality, data privacy implicated
> To: tpp-allies <tpp-allies at listserver.citizen.org>
> 
>  
> http://www.citizen.org/documents/press-release-net-neutrality-leak.pdf
>  
> For Immediate Release:
> Contact:
> Angela Bradbery (202) 588-7741, abradbery at citizen.org
> Dec. 17, 2014
>  
> Symone Sanders (202) 454-5108, ssanders at citizen.org
>  
> Leak of Obama Administration Trade Pact Proposal Reveals Negotiations Affecting Net Neutrality, Limits on Data Privacy Protections
> 
> U.S. Internet Governance Policy Should not be Designed in Closed-Door, Industry-Influenced Negotiations of U.S. Trade in Services Agreement
>  
> WASHINGTON, D.C. – While a domestic debate about net neutrality rages and public demands for better data privacy protections grow, a U.S. trade pact proposal leaked today reveals that issues related to both policies are being negotiated in closed-door trade talks to which corporate trade advisors have special access, said Public Citizen.
>  
> The leaked text is the U.S. proposal for language relating to e-commerce and Internet issues in a proposed Trade in Services Agreement (TISA), which is now being negotiated between a 50-country subset of  World Trade Organization members. The pact would require signatory countries to ensure conformity of their laws, regulations and administrative procedures with the provisions of the TISA; failure to do so could subject a country to trade sanctions. Negotiators are pushing to complete and implement the pact next year.
>  
> “This leak reveals a dangerous trend where policies unrelated to trade are being diplomatically legislated through closed-door international ‘trade’ negotiations to which industry interests have privileged access while the public and policy experts promoting consumer interests are shut out,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “Given the raging domestic debate over net neutrality, the growing demands for more data privacy and the constantly changing technology, a pact negotiated in secret that is not subject to changes absent consensus of all signatories seems like a very bad place to be setting U.S. Internet governance policies.”
>  
> Added Burcu Kilic, a lawyer with Public Citizen, “The Internet belongs to its users. Anyone who cares about an open and free Internet should be concerned that U.S. trade negotiators are seeking to lock in international rules about how the Internet functions, and are doing so in a closed-door process that is not subject to the input of  Internet users. Negotiating rules internationally, behind closed doors, while the domestic discussion is ongoing not only makes an end-run around the domestic process, but excludes the perspectives and expertise needed to make good policy.”
>  
> With respect to privacy protections, the leaked text reveals that the U.S. negotiators are pushing for new corporate rights for unrestricted cross-border data flows and prohibitions on requirements to hold and process data locally, thus removing governments’ ability to ensure that private and sensitive personal data is stored and processed only in jurisdictions that ensure privacy.
>  
> Such measures are considered critical to ensuring that medical, financial and other data provided protection by U.S. law are not made public when sent offshore for processing and storage, with no legal recourse for affected individuals. Numerous U.S. organizations are pushing for improvements in such policies, which are considerably stronger in other countries. If the proposed TISA terms on free data movement were to become binding on the United States, such needed progress would be foreclosed.
>  
> For a more detailed analysis of the leaked text and its implications for net neutrality and data privacy, please see this memo co-written by Professor Jane Kelsey, University of Auckland School of Law, and Kilic of Public Citizen.
>  
> ###
>  
> Symone D. Sanders
> Communications Officer | Public Citizen's Global Trade Watch
> 215 Pennsylvania Ave SE, Washington, DC 20003
> Office: 202.454.5108 | Cell: 402-671-8118
> Email:  ssanders at citizen.org
> Website: www.tradewatch.org
> Twitter: @PCGTW, @ExposeTPP
>  
> ---
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>  
> --
> -- 
> Carolina Rossini 
> Vice President, International Policy
> Public Knowledge
> http://www.publicknowledge.org/
> + 1 6176979389 | skype: carolrossini | @carolinarossini
>  
> <Briefing on TISA E-Commerce Final.pdf>____________________________________________________________
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>  
> --
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> Carolina Rossini 
> Vice President, International Policy
> Public Knowledge
> http://www.publicknowledge.org/
> + 1 6176979389 | skype: carolrossini | @carolinarossini

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