It Doesn’t Matter Who Does the Lobbying: Trade Agreements Aren’t the Place for Internet Regulations

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EFF.orgThe Asso­ci­at­ed Whistle­blow­ing Press released por­tions of draft text pro­posed by the Unit­ed States for the Trade in Ser­vices Agree­ment (TISA) this week, reveal­ing some alarm­ing pro­vi­sions that indi­cate how tech com­pa­nies have been involved in influ­enc­ing a secret inter­na­tion­al deal. The lan­guage of the leaked treaty shows pro­vi­sions that could impact pri­va­cy online, and net neutrality—with no pub­lic con­sul­ta­tion or oppor­tu­ni­ties for open debate. What is dispir­it­ing is some of the lan­guage of these Inter­net reg­u­la­tions almost cer­tain­ly comes from tech com­pa­nies, who have joined the many oth­er lob­by­ists fight­ing for their spe­cial inter­ests behind closed doors.

TISA is yet anoth­er so-called trade deal which began nego­ti­a­tions in 2013 and is being ham­mered out in back room meet­ings between 23 coun­tries around the world, includ­ing the Unit­ed States, the Euro­pean Union, Cana­da, Japan, South Korea, Colom­bia, Mex­i­co, and Peru. Accord­ing to the leaked doc­u­ments, coun­tries involved in the nego­ti­a­tions have agreed to keep the text of this agree­ment clas­si­fied for five years after it enters into force. On top of the five-year-embar­go, nei­ther the nego­ti­a­tion rounds nor the top­ics dis­cussed in this agree­ment have ever been made pub­lic.
Ban­ning Lim­its on the “Free Flow of Infor­ma­tion”

TISA con­tains a pro­vi­sion that bans coun­tries from reg­u­lat­ing how and when any giv­en com­pa­ny can move, access, and process the data for its ser­vices:

Arti­cle X.4: Move­ment of Infor­ma­tion No Par­ty may pre­vent a ser­vice sup­pli­er of anoth­er Par­ty from trans­fer­ring, access­ing, pro­cess­ing or stor­ing infor­ma­tion, includ­ing per­son­al infor­ma­tion, with­in or out­side the Par­ty’s ter­ri­to­ry, where such activ­i­ty is car­ried out in con­nec­tion with the con­duct of the ser­vice sup­pli­er’s busi­ness.

This par­tic­u­lar lan­guage seems to be aimed at sub­vert­ing data local­iza­tion laws. In some cas­es, this could be a good thing. Gov­ern­ments that might want to enact nation­al cen­sor­ship fil­ters could, the­o­ret­i­cal­ly, be chal­lenged under such pro­vi­sions. The “free flow of infor­ma­tion” is the term gov­ern­ment offi­cials and cer­tain tech giants use to refer to these sorts of rules, and they often place empha­sis on their poten­tial to pro­tect free expres­sion and access to infor­ma­tion on the Inter­net.

But that ben­e­fit could come at the cost of con­sumer pro­tec­tions for per­son­al data. For instance, TISA could direct­ly threat­en EU’s pri­va­cy reg­u­la­tions, which require com­pa­nies to store EU cit­i­zens’ per­son­al data local­ly to ensure that those com­pa­nies fol­low the EU’s strict legal require­ments for han­dling cit­i­zens’ data. Sim­i­lar laws exist in Colom­bia and Mex­i­co, and in Paraguay, which is also a par­ty to TISA, civ­il soci­ety groups are now cam­paign­ing for such laws.

The com­pa­nies with the most to lose from stronger pri­va­cy reg­u­la­tion are those mul­ti-nation­als whose rev­enue revolves around the trad­ing and shar­ing of per­son­al data: in oth­er words, tech com­pa­nies like Face­book, Google, and Inter­net adver­tis­ing net­works. Lan­guage like this is intend­ed to make their lives eas­i­er: but they also have a pro­found effect on how Inter­net users rights are pro­tect­ed.

So in short, this “free flow of infor­ma­tion” debate is com­pli­cat­ed, and is exact­ly why poli­cies like these should not be writ­ten in secret. Nego­tia­tors should be work­ing to rec­on­cile this ten­sion between pow­er­ful pri­vate and pub­lic actors who may have con­flict­ing stances on major human rights issues such as pri­va­cy and free expres­sion. That in turn, will require open pub­lic par­tic­i­pa­tion from a vari­ety of stake­hold­ers. By con­trast, TISA’s lan­guage reflects the con­cerns of the Inter­net indus­try, and not nec­es­sar­i­ly the inter­ests of Inter­net users as a whole.

A Pos­si­ble Threat to Inter­na­tion­al Net Neu­tral­i­ty Stan­dards

The pro­vi­sions on “Open Net­works, Net­work Access and Use” may look pos­i­tive at first, but it con­tains omi­nous­ly vague lan­guage that threat­ens net neu­tral­i­ty:

Arti­cle X.5: Open Net­works, Net­work Access and Use Each Par­ty rec­og­nizes that con­sumers in its ter­ri­to­ry, sub­ject to applic­a­ble laws, and reg­u­la­tions, should be able to:
(a) access and use ser­vices and appli­ca­tions of their choice avail­able on the Inter­net, sub­ject to rea­son­able net­work man­age­ment;

What is “rea­son­able net­work man­age­ment”? We can’t know because it’s not defined any­where else in this leaked text. Leav­ing such lan­guage unde­fined invites oppo­nents of net neu­tral­i­ty to expand it as a jus­ti­fi­ca­tion for prac­tices that under­mine the open Inter­net. It’s cru­cial that the scope of such terms are appro­pri­ate­ly defined so it can­not be used to autho­rize appli­ca­tion dis­crim­i­na­tion. In a secret trade agree­ment, such details will be ham­mered out by oppos­ing cor­po­rate lob­by­ists, with lit­tle con­sid­er­a­tion of the broad­er pub­lic inter­est.

Tech Pol­i­cy Should Not Be Decid­ed in Secret. Ever.

For over a decade, EFF and oth­er dig­i­tal rights orga­ni­za­tions have denounced con­tent indus­try play­ers for seek­ing to impose dra­con­ian copy­right poli­cies via secret inter­na­tion­al deals, like ACTA and the TPP. But they are not the only indus­tries lob­by­ing for their inter­ests in these deals. Increas­ing­ly, Inter­net com­pa­nies are join­ing this secret horse-trad­ing.

No mat­ter which indus­tries are involved and no mat­ter how well-mean­ing or informed the par­ties might be about the issue at hand, Inter­net pol­i­cy and oth­er dig­i­tal reg­u­la­tions can nev­er be entrust­ed to a few entrenched inter­ests. These poli­cies have impli­ca­tions for human rights, and we can’t let spe­cial inter­ests decide them for us in secret.