Too often, media and policymakers take seriously the claim of government officials that secret trade deals like the Trans-Pacific Partnership (TPP) promote and protect “Internet freedom,” even though the traditional guardians of Internet freedom—users and innovators who rely on it—have said precisely the opposite. Unfortunately, that’s likely because some large tech companies have joined the negotiations and have implicitly given these deals their blessing. Now that they're at the table, companies that once stood with users have gone silent, while others now emphatically support TPP and President Obama’s effort to push the agreement through without appropriate public review. We’re disappointed to lose their support, but that’s not the biggest problem. Our policymakers need to get one thing straight: Big tech companies do not speak for the Internet.
Digital Innovation and Balanced Copyright
Of course, major tech players and users have often made common cause when it comes to copyright. During the fight to defeat the SOPA, large companies including Twitter, Facebook, and eBay stood with users, as did Google, Zynga and others. The Computer and Communications Industry Association (CCIA), a trade organization that represents tech companies including Google, Amazon, Facebook, Microsoft, and Yahoo!, cogently argues on its issue page:
Copyright reform can ensure the law does not discriminate against new industries in favor of legacy industries . . . U.S. policymakers must . . . ensure that as U.S. businesses enter markets abroad they are not subjected to liability for products, services, and content that are lawful in the United States.
We agree. Indeed, it’s statements like that that led some to hope that users and the largest tech players could make common cause on TPP. For example, many technologies and services born in the U.S. would not exist if not for the principles of fair use. The TPP contains a weak framework for copyright exceptions and limitations, called the three-step test, but fair use is nowhere to be found in the agreement.
Nonetheless, some tech companies are supporting TPP and Trade Promotion Authority—the Fast Track kiss of approval for unbalanced and opaque trade negotiation processes. Even Google, while explicitly acknowledging that the legislation “does not on its face fully reflect” the administration's supposed commitment to balanced copyright, ultimately supported Fast Track.
It is likely that these companies are betting that the benefits will be worth the costs. In particular, they may be hoping that the new rules enshrined in these agreements will make it easier to mine user data. They may also hope that trade agreements will enshrine favorable rules on e-commerce and telecommunications.
These corporate entities are of course entitled to advocate for their own best interest and it’s even likely that some of the rules they propose will be good for users. For example, the Internet Association, which is a DC-based tech trade group, has suggested that favorable rules on intermediary liability [PDF] could be included in these opaque trade deals. But it would be dangerous for everyone, from the President to the USTR to Congress, to suppose that having some tech at the table is an adequate substitute for real participation from a tech-savvy public. Some of the rules that big tech is seeking may be good for users, others bad, and others indifferent—but only users themselves can ultimately make that call. And because we are not at the table, we don't have the opportunity to do that.
Here's a run-down of the tech policy issues under discussion in current trade negotiations, that tech companies may be weighing against the anti-user rules on copyright and patents:
The TPP's E-Commerce chapter, although not leaked publicly, is believed to contain provisions promoting the "free flow of information." No one except the negotiators themselves and corporate advisors with special privileges have seen the actual language, so what we know is based on public statements and leaked texts from other secret trade deals.
These free flow of information rules are designed to subvert data localization laws such as rules that require data on citizens to be stored and processed on servers located in their own country. On the one hand, these can prevent countries from distorting Internet traffic flows and imposing unnecessary costs on platform operators—so they do have the potential to protect free expression and access to information on the Internet. On the other hand, these same rules could be used to undermine consumer protections for personal data. For example, these kinds of provisions could be used to unravel national efforts to pass legal requirements around how companies handle citizens' sensitive medical data.
These rules are backed up by the TPP's investor-state dispute settlement provisions which could empower large tech companies to challenge national laws on privacy, by alleging that such rules undermine their profits and violate the country's "free flow of information" obligations under the agreement.
The Intellectual Property chapter of the Trans-Atlantic Trade and Investment Partnership (TTIP) may be low-key, but not so its ambitions for telecommunications and e-commerce. Aside from the free flow of information and investor-state dispute settlement provisions—likely similar to those under the TPP—it is also possible that TTIP will include rules on encryption, electronic signatures, interoperability of ICT products, and perhaps even on net neutrality and intermediary liability. Are there any dangers hidden in these provisions? Given the secrecy of the negotiations, it is impossible for us to say—which is itself a danger, because so many of the potential problems with laws on technology policy are only uncovered during a broad and open period of public consultation.
We've written about the e-commerce provisions of TISA before, but not about its telecommunications chapter, which Wikileaks published last month and has leaked again last week. In sum, it aims to wipe out barriers to trade in telecommunications products and services. That sounds promising, but there are some hidden dangers that lurk under the surface.
For one thing, countries could be prohibited from adopting robust privacy protections for users if these could be characterized as amounting to arbitrary or unjustifiable discrimination, or placing a disguised restriction, on trade in services.
For another, the telecommunications chapter would require members to provide access to critical telecommunications infrastructure—such as landing facilities for submarine cables—to any foreign telecommunications operator, even those known to be responsible for or complicit in the warrantless surveillance of citizens. Notably, this language is being promoted by the United States, which is known to have used cable taps on foreign soil in its own illegal NSA surveillance programs.
The only leaked chapters of the 16 party Regional Comprehensive Economic Partnership (RCEP) that have been leaked so far are four different proposals for the IP chapter. (We wrote recently about the appalling South Korean proposal; since then, much more balanced ASEAN and Indian proposals have been released.)
However during the last RCEP negotiating round last month, there has been pressure for the adoption of an E-Commerce chapter. There is no leaked text on which we can comment, because in all likelihood there is no such text to be leaked yet. Nonetheless, the prospect of e-commerce rules being written behind the closed doors of the RCEP negotiations is no more appealing than such rules being written behind the TPP's closed doors.
We Can't Let Big Tech Write Digital Policy for the 21st Century
Large tech companies jealously guard their reputation for defending users rights, and in some cases, that reputation is well-earned. Even Edward Snowden has given kudos to Apple for its support of users' privacy, and Google has won similar acclaim for its support for users' freedom of expression online—in both cases, these public interests overlapped with the companies' own.
But this should not blind us to those inevitable instances where we do not share such a happy confluence of views, when tech companies act against users' interests and in favor of their own. That's why over 250 smaller tech companies and user groups across the U.S. have urged our lawmakers to oppose the TPP and Fast Track. As the TPP heads into its final lap, and as other parallel trade negotiations gather steam, it behooves policymakers to remember that big tech doesn’t always speak for the Internet.