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NAFTA's Digital Trade Chapter Could Be Finalized Next Month

The fifth round of negotiations over a modernized North American Free Trade Agreement (NAFTA) wound up last week in Mexico. Following conclusion of the round, Mexican Trade Minister Ildefonso Guajardo told reporters that he hoped that the next round, to be held in Washington, DC in the week of 11 December, could see sufficient progress made that the agreement's Digital Trade chapter could be closed... all before the public has seen a single word of it.

The history of such predictions leads us to suspect that this may be an optimistic timeline, but the fact that the Minister made it at all does go to confirm that the Digital Trade chapter is seen as being uncontroversial in the negotiations. But it isn't unimportant. The provisions likely to be found in this chapter include some topics that are critical to the digital economy. 

Some of these rules, depending on how they are worded, could be beneficial for the rights of users online. In particular, harmonizing at a higher level of safe harbor protection for platforms would boost protection for freedom of expression and human rights online, at the same time as helping online innovators and startups. In a joint letter sent to the USTR earlier this month, startup advocacy group Engine made a case for the inclusion of broad intermediary liability rules in NAFTA's Digital Trade chapter:

Modern technology allows millions of people worldwide to reach even the smallest of online platforms. This model only works because U.S. law enables companies to host or serve as a platform for huge volumes of transactions, communications and other activity by third parties. NAFTA modernization should include provisions to prohibit governments from forcing online services to be gatekeepers for content on the Internet.

But other rules proposed for NAFTA's Digital Trade chapter are more troublesome. For example, rules on domain names belong at ICANN and should be kept out of trade agreements.  Rules on issues such as the circumstances in which countries can limit the flow of data across their borders or can require the placement of servers on domestic soil, and rules limiting regulators from requiring access to the source code of imported products are being set through trade agreements.Rules on critical areas such as data localisation and transfer should be included after careful consideration and only following public input into the development of those rules.

While limitations on data flows and demands for source code can be used for protectionist purposes that don't merit our support, there are also legitimate reasons why banning them outright would be a bad idea. In particular, it is important that countries retain the flexibility to make and enforce personal data protection laws, even if these do to some extent inhibit the free flow of such data in commerce. We should also think twice about preventing countries from reviewing the source code of imported products, when this could be used to address the real problem with insecure devices posing security and privacy risks to users.

The NAFTA negotiating countries shouldn't rush in to closing the Digital Trade chapter of the agreement before these nuances have been addressed in an inclusive, balanced, and accountable way. That includes receiving input on these provisions from those who know their subject better than trade negotiators do—including privacy experts, cybersecurity professionals, and representatives of Internet users. But unfortunately this is not possible while text proposals and consolidated drafts remain secret, and while the Trade Advisory Committees conduct their work behind closed doors, subject to confidentiality obligations.

EFF and other public interest advocates are doing the little that we can in these difficult circumstances to inform negotiators of our concerns, but we have no way to know for sure whether they are listening. If it is announced during next month's negotiation round that the Digital Trade chapter of NAFTA has been closed before we've even seen it, the negotiators and their political masters will stand accountable to the public for any bad choices that they have made.

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