An emerging issue for EFF, the North American Free Trade Agreement (NAFTA) is a trade agreement between the United States, Canada, and Mexico, that originally came into force in 1994. Unlike the later Trans-Pacific Partnership, NAFTA in this original form did not include any provisions of similar concern from a digital rights standpoint. It did contain a chapter on intellectual property, but this mostly tracked the requirements of the WTO TRIPS Agreement, which the three countries were already bound to follow anyway.
All this could change as NAFTA is reopened for negotiation in 2017. Stricter copyright and patents rules are now back on the table, along with a host of new rules on digital trade, including TPP-like rules that could:
- Make accessing trade secrets over a computer system into a criminal offense, putting whistleblowers and journalists at risk.
- Prohibit countries from requiring the review of the source code of imported products, even if the code could pose a security or privacy risk to the public.
- Limit countries from mandating disclosure of the crypto tech used in imported products, but without actually protecting users against backdoors or overreaching law enforcement demands.
- Prohibit countries from requiring Internet data to be hosted on local servers or pass through local networks. And while such rules sound like a good idea, they could also be a Trojan horse that undermines legitimate personal data protection laws.
Rules like these pose clear risks to users' digital rights, particularly if they are negotiated behind closed doors. That's why EFF has demanded that the United States Trade Representative negotiate NAFTA in a far more open and inclusive process than was used for the secretive and lobbyist-dominated negotiations over the TPP. To date, we've had no response to these demands.
EFF is not against free trade, and we haven't yet taken a position on whether to support or oppose NAFTA. A lot will turn on whether the agreement is opened up for Congress and the public to give substantive input into the development of the text, and to review drafts as they are produced. If this does not happen, then the likelihood is that just like the TPP, NAFTA's copyright, patent, and digital trade rules will pander to big business lobbyists while failing to take account of the rights of users.