November was a big month for proponents of multilateral trade liberalization. The US and 11 other nations bordering the Pacific published their massive trade agreement, the Trans-Pacific Partnership (TPP).
The 12 signatory nations argue that TPP will encourage trade through shared rules on traditional trade issues such as market access and labor rights and new approaches to facilitate cross-border investment, regulatory coherence, and cross-border information flows. Now their constituents can decide for themselves if the agreement bodes well or poorly for the Open Internet.
However, many netizens did not greet TPP with a parade along their Twitter feeds (or any other virtual Main Street). Instead, they signaled disaster.
For example, Boing Boing reported that activists have concluded that TPP "spells doom for free speech online." The Guardian headlined that Wikileaks release of TPP deal text stokes "freedom of expression" fears among activists. The Electronic Frontier Foundation blogged, "Open access isn't explicitly covered…. But that doesn't mean that they won't have a negative impact on those seeking to publish or use open access materials.” The blogger warned that individuals that seek to circumvent paywalls could be accused of civil or criminal offenses.
These analysts based their concerns on the intellectual property provisions, but it appears they have not taken into account the e-commerce chapter which makes the free flow of information a default and essentially says nations can only limit information flows to protect privacy, public morals or national security.
Under this chapter, the US could challenge a TPP partner’s censorship partner’s censorship because that nation is undermining free flow (e.g. Vietnam) as a violation of trade rules. Moreover, TPP critics also confuse process and outcome. They argue that business had too much influence over TPP.
The critics are probably right about the process – but wrong that that process will yield bad outcomes for Internet operability and freedom. Firms such as Google, eBay, Walmart, and Citigroup also have a stake in maintaining an open and stable Internet. Finally, they condemn the agreement because it was negotiated in secret.
While the critics are quite right to note that the process of negotiating TPP did not engender trust, the US and its negotiating partners have not figured out how to update trade negotiations (which require trust among negotiating partners) and the transparency necessary for good governance in the Internet age (which requires greater openness and dialogue with the public). I am not excusing them, but rather explaining why it is so hard for trade negotiators to catch up to good governance expectations.
Trade agreements like TPP are not only complicated and legalistic; they are easy to demagogue and hard to understand.
To fully understand the potential impact of the agreement, we need to examine the document’s many chapters that can affect the Internet (which include the e-commerce chapter, the financial services chapter, the services chapter as well as the e-commerce chapter).
Finally, we must evaluate how the trade agreement as a whole affects the Internet as a whole and specifically Internet norms of open access and free flow of information, interoperability, and multi-stakeholderism.
Here are some things to keep in mind:
Trade agreements such as TPP may not be the best venue to govern cross-border information flows – the blood of the Internet. Many Internet issues that involve information flows such as privacy or the security of data are not market access issues – the traditional rationale for trade agreements. Moreover, trade agreements are not explicitly designed to facilitate interoperability or regulatory coherence, which is how Internet policies have traditionally been designed.
However, the language related to digital trade could provide an impetus to the development of coordinated policies on a wide range of global issues that policymakers must address to maintain a stable global Internet.
Until policymakers devise a set of rules and clear exceptions to those rules governing information flows, countries will continue to argue as to the trade distorting effects and legitimacy of such policies.
A system of shared rules, in contrast, could build greater trust and reduce costs for firms and individuals who must deal with different rules regarding how and where data can be collected and stored, when and under what conditions data be transferred, and what types of user authorizations are needed for collection, storage and transfer. Moreover, progress on trade negotiations might prod governments such as the US to develop greater coherence between its trade objectives (to promote the free flow of information) and its efforts to promote digital rights and Internet freedom.
Let’s review the text, and then decide whether the agreement as a whole benefits the open Internet.
Susan Ariel Aaronson is research professor of International Affairs at George Washington University. She specializes in trade and digital rights and teaches the first US course on digital trade at George Washington University.