[bestbits] TRADE impacts on Net Neutrality

Carolina Rossini carolina.rossini at gmail.com
Wed Dec 17 14:52:55 EST 2014

a little paper i co-authored with Alberto last year on this issue

On Wed, Dec 17, 2014 at 1:27 PM, Nick Ashton-Hart <nashton at consensus.pro>
> 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
> <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
> <https://data.awp.is/filtrala/2014/12/17/19.html> 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/ <http://www.publicknowledge.org/>*
> + 1 6176979389 | skype: carolrossini | @carolinarossini
> <Briefing on TISA E-Commerce
> Final.pdf>____________________________________________________________
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> --
> --
> *Carolina Rossini *
> *Vice President, International Policy*
> *Public Knowledge*
> *http://www.publicknowledge.org/ <http://www.publicknowledge.org/>*
> + 1 6176979389 | skype: carolrossini | @carolinarossini

*Carolina Rossini *
*Vice President, International Policy*
*Public Knowledge*
*http://www.publicknowledge.org/ <http://www.publicknowledge.org/>*
+ 1 6176979389 | skype: carolrossini | @carolinarossini
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