Future Tense

Privacy Is Not a Barrier to Trade

How a secretive trade agreement could change the global Internet.

Sen. Elizabeth Warren.
Sen. Elizabeth Warren tried to stop the Senate from approving “fast track” trade rules. Above, Warren speaks on May 12, 2015, in Washington.

Photo illustration by Slate. Photo by Win McNamee/Getty Images.

On Wednesday, WikiLeaks released the draft text of the biggest international agreement you’ve probably never heard of: the Trade in Services Agreement, or TISA. And buried in one of the 12 leaked chapters (which are mostly on things like “air transport services” and “competitive delivery services”) is a volatile and crucial debate about online privacy and the global Internet.

Free trade agreements now regulate the Internet, determining digital policies across borders and around the world. TISA in particular addresses digital privacy, a critical issue at home and abroad. Yet the negotiations are not being held in a normal venue for discussing human rights or even ordinary law. TISA, like other trade agreements, is negotiated through a byzantine, readily corruptible process known as “fast track,” which Congress is about to renew. It is unacceptable for a professed democracy to address issues of this magnitude without meaningful public accountability.

Trade agreements used to focus on things like tariffs, but they aren’t just about trade anymore. They consist of hundreds of chapters of detailed regulations, on subjects ranging from textiles to intellectual property law. TISA purports to promote fair and open global competition in services, thus increasing jobs. (You may have also heard about the Trans-Pacific Partnership, another trade agreement currently being negotiated and criticized. This one’s even more mammoth.) TISA is being negotiated between 23 countries representing some 75 percent of the global services market. Buried in its e-commerce annex are rules that will reshape the relationship between the free flow of information and online privacy.

The Internet is global, but privacy regulations incorporate localized norms. The U.S., for example, protects only some things, like your video-watching history and health information, while the European Union has a comprehensive framework for safeguarding far more information. The EU also tends to give privacy more weight, and free speech less, when compared with the U.S., as evidenced by the controversy over the “right to be forgotten,” a policy that allows EU citizens to request delisting of pages from Google search results on searches of their names. International law in general, and trade law in particular, is a theoretically attractive place for resolving such conflicts, as countries traditionally use trade agreements to harmonize divergent regulations and to govern the flow of goods (and data!) across borders.

International conflicts over privacy are only increasing. Since Edward Snowden began dropping his bombshell revelations about National Security Agency surveillance two years ago, the treatment of foreigners’ data by U.S. companies and the government has become a central sticking point with a number of countries. Some fear that American companies want to deregulate privacy globally, because it’s awfully expensive to implement EU-style privacy protections. Some nations have proposed to keep data local so that Americans can’t vacuum it up, or are otherwise reconsidering how to treat U.S. companies and their handling of foreign citizens’ data. For some time, preventing data localization has been high on the list of objectives in U.S. trade negotiations. In previous free trade agreements, though, the U.S. has kept things short and sweet, mainly trying to prevent countries from discriminating against digital products originating abroad.

But TISA is different. The leaked draft language, proposed by the U.S. and several other countries, states that a government may not prevent a foreign services company “from transferring, [accessing, processing or storing] information, including personal information, within or outside the Party’s territory.” Essentially, this says that privacy protections could be treated as barriers to trade. This language could strike most privacy regulations as they apply to foreign companies—and not just in the EU. It would also apply to U.S. regulation of foreign companies at home. For instance, U.S. health privacy law requires patient consent for health information to be shared. This, technically, is a restriction on transferring information that could be invalidated by TISA, if nothing changes.

We don’t know whether this draft language will make it into the final agreement. But if it does, the crucial question is the extent to which privacy regulations, like the American health privacy law or EU data protection, might be exempted from it. The subject matter TISA covers is already governed by a global agreement called GATS, which has an exception for privacy protections. In other words, privacy protections are explicitly not treated as trade barriers in GATS. The leaked draft language from TISA shows that there is an ongoing debate between countries over whether to create an explicit privacy exception within TISA itself. The result of this debate is hugely important for states that want privacy laws.

If it sounds complicated, it is. The important point is that this trade agreement contains a crucial discussion of governments’ abilities to meaningfully protect civil liberties. And it is not being treated as a human rights discussion. It is being framed solely as an economic issue, ignoring the implications for human rights, and it is being held in a classified document that the public is now seeing months after it was negotiated, and only because it was released through WikiLeaks.

TISA’s contents are not all bad, and protection of an open global Internet through trade could theoretically be a good thing. But these fine points should be openly debated, not bartered away in an enormous agreement that bundles privacy together with maritime transport services.

This brings us to Congress. Trade agreements have historically been negotiated, concluded, and implemented in the U.S. through a special process known as “fast track,” which expired in 2010. With fast track, Congress effectively ties its own hands with respect to trade. It gives the executive branch vague negotiating objectives, such as “recognize the growing significance of the Internet as a trading platform in international commerce,” and limits itself to an up-or-down vote on the final agreement text. The process is also highly secretive—in fact, trade agreement texts are classified. While the executive branch does consult with members of Congress, even congressional staffers with security clearance have until recently been prevented from seeing the texts. Furthermore, certain trade industry advisers are allowed access to U.S. negotiating objectives and negotiators that the public and public interest groups do not have.

This abbreviated and secretive process makes it much easier to institute trade agreements than, say, human rights agreements. Congress has long embraced fast track with respect to trade because isolationism can be economically devastating—it helped give rise to the Great Depression, for example. But now, trade agreements have become an entirely different beast. When we’re dealing with agreements that affect human rights, the potential for and evidence of selective industry influence is truly troubling.

Trade agreements governing civil liberties (and jobs, and the environment, and public health … ) need to receive meaningful input from the public and its real representatives—not after negotiations are concluded, not through a Congress hampered by excessive executive secrecy, and not through vague negotiating objectives that fail to meaningfully address human rights and other values. And it is crucial that the input into the process from industry advisers be meaningfully checked, not perpetuated. The current version of fast track requires the executive branch to develop guidelines for public engagement, but if the past is any indicator, the trade representative’s idea of public participation and disclosure is more theater than substance.

Fast track just passed in the Senate. Senators including Bernie Sanders of Vermont, Elizabeth Warren of Massachusetts, and Sherrod Brown of Ohio tried to stop its passage but narrowly lost. Now, the vote is coming up in the House—maybe as soon as this week. About 2 million Americans have already signed a petition against the legislation. It would be sad indeed if one of the few times Congress decides to actually pass legislation, embrace bipartisanship, and show support of the president is a law that enables states to bargain away citizens’ freedoms behind closed doors.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.