The United States Trade Representative (USTR) has just released its trade negotiating objectives [PDF] for a revision of NAFTA, the North American Free Trade Agreement between the United States, Mexico, and Canada. NAFTA is expected to open up a new front in big content's neverending battle for stricter copyright rules, following the unexpected defeat of the Trans-Pacific Partnership (TPP). Meanwhile, big tech companies are now wielding increasing influence with the USTR, and demanding that it negotiate rules that protect their businesses also, such as prohibitions against restrictions on the cross-border transfer of data.

In EFF's comments to the USTR about what its negotiating objectives should be, we urged it not to include new copyright rules in NAFTA, because of how this would prevent the United States from improving its current law or adapting to technological change. We also expressed the need for caution about including some of the new digital trade (or e-commerce) rules that big tech companies have been asking for, for similar reasons, and because the trade negotiation process notoriously lacks the balance that would be required for it to negotiate a sound set of rules.

Copyright Rules

The negotiating objectives are hopelessly general, but it seems that our requests largely fell on deaf ears. The negotiating objectives on intellectual property relevantly include to:

  • Ensure provisions governing intellectual property rights reflect a standard of protection similar to that found in U.S. law.
  • Provide strong protection and enforcement for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade. ...
  • Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works.
  • Provide strong standards [of, sic] enforcement of intellectual property rights, including by requiring accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms. 

These provisions are consistent with the U.S. demanding similar provisions to those that had been contained in the TPP, including life plus 70 year terms of copyright protection, criminal penalties for "commercial scale" copyright infringement, and legal protections for DRM—all of which would be new to NAFTA. Disappointingly, there is no reference to be found to the inclusion of a "fair use" exception to copyright, as we had requested in our submission.

Digital Trade (E-Commerce) Rules

As for digital trade, the objectives include to:

  • Ensure non-discriminatory treatment of digital products transmitted electronically and guarantee that these products will not face government-sanctioned discrimination based on the nationality or territory in which the product is produced.
  • Establish rules to ensure that NAFTA countries do not impose measures that restrict crossborder data flows and do not require the use or installation of local computing facilities.
  • Establish rules to prevent governments from mandating the disclosure of computer source code.

While some of these rules might not be harmful, if they were drafted in an adequately open and consultative fashion, we have previously expressed concerns that the ban on restrictions on crossborder data flows may not allow countries adequate policy space to protect the privacy of users' data. We are also worried about the possibility that a blanket ban on laws requiring the disclosure of source code could limit countries from introducing new measures to protect users from vulnerabilities in digital products such as routers and Internet of Things (IoT) devices.

Our New Infographic Makes Sense of It All

You might well be wondering how the new version of NAFTA will compare with other digital trade negotiations, such as the TPP (which could still rise again between the other eleven countries besides the United States), and the Regional Comprehensive Economic Partnership (RCEP, whose negotiators are meeting this week in Hyderabad, India). To help explain, we've put together this infographic which illustrates five of the major ongoing trade agreements that are likely to contain provisions on digital issues. It provides a quick overview of their current status, the countries involved, and the issues that they contain.

Current Digital Trade Negotiations

Click to view full-size

One thing that all of these agreements have in common is that there is no easy way for users to access them. Negotiation rounds take place in far-flung cities of the world, with little or sometimes no notice to the general public, and next to no transparency about the texts under discussion, and with little or no official means of access to the negotiators for public interest advocates such as EFF. Nevertheless, EFF is on the ground in Hyderabad this week to stand up for users, and we plan to do the same in the coming NAFTA negotiations too.

Despite today's release of the USTR's negotiating objectives for NAFTA, they are nowhere near detailed enough for us to know what rules the USTR will really be asking for from our partners. And that's dangerous, because we don't really know what we're fighting against, and whether our fears are justified or overblown. Worse, we might never know until the agreement is concluded—unless it is leaked in the meantime. That's just not acceptable, and it needs to change.

Keep reading Deeplinks for updates on the progress of each of these trade agreements, and how they will affect you. And if you'd like to support our difficult work in fighting for users' rights in all of these secretive venues, you can help by donating to EFF.