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Trade Agreements and Digital Rights

Trade agreements are treaties between two or more countries by which they agree on common rules relating to trade, committing to implement these in their own countries through domestic laws and policies. Originally, these sorts of agreements dealt only with issues such as tariffs, agricultural and industrial subsidies, and other trade barriers.

But more recently powerful private and public actors have taken advantage of these secret, opaque processes to enact extreme digital policies, on the theory that these too impact trade. Trade agreements are one mechanism they use to pass Internet rules that would not otherwise survive the scrutiny of transparent, democratic rule making. The Trans-Pacific Partnership agreement (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), and the Trade in Services Agreement (TiSA), are a few such deals. They cover a wide range of regulatory issues, including problematic provisions that would impact users' human rights such as free speech, privacy, and access to knowledge. Here are a few examples of provisions in these deals that pose the biggest threats to users' rights:

  • Escalate DRM Restrictions: Provisions that compel signatory nations to enact laws banning circumvention of digital locks (technological protection measures or TPMs) that mirror the DMCA and treat violation of these rules as a separate criminal offense even when no copyright infringement is involved.
  • Force Internet Intermediaries to Police for Copyright Violations: Rules that bind signatories to provide legal incentives for ISPs to privately enforce copyright protection rules. This opens the door for Internet filtering, DNS blocking, repeat-infringer policies that lead to terminated accounts, and ISPs monitoring users and disclosing their identities to rightsholders.
  • Expand Copyright Terms: Reinforce and extend already-excessive lengths of copyright restriction beyond existing international norms. The TPP for instance, could lengthen copyright term protections from Life of the author + 50 years, to Life + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).
  • Threats to Journalists and Whistleblowers: Dangerously vague text on the misuse of trade secrets, which could be used to enact harsh criminal punishments against anyone who reveals or even accesses information through a "computer system" that is allegedly confidential.
  • Undermine Safeguards for User Privacy: Provisions on the "free flow of information" that seem to be about free expression, but could be used to unravel nationally-mandated consumer protections for personal data.

Many of these terms are copied-and-pasted from the U.S. Digital Millennium Copyright Act (DMCA), but negotiators abstract the language just enough so that U.S. law could still be compliant with it, while the other countries could be pressured to enact even harsher domestic restrictions. But these deals also threaten to lock the U.S. into these dubious international standards that could discourage positive, user-oriented reforms in the future.

Recent trade agreements like the TPP are what's called "docking agreements"—where additional countries can be pressured to sign on later after the negotiations are already concluded. So even if your country is not one of the 12 that is part of the deal now, it can sign on down the road without having participated in any of the negotiations. Furthermore, a process called certification allows the U.S. to strong-arm signatory countries into enacting the most severe interpretation of the agreement's digital policy terms by withholding any benefits under the agreement until they do so. That's why these new agreements pose a bigger threat than all the previous trade deals combined.

Fast Track

Fast Track, also called Trade Promotion Authority, is a temporary and rarely used power Congress gives to the Executive branch to negotiate international free trade agreements. The Constitution empowers Congress authority over U.S. trade policy. Under Fast Track however, lawmakers can only vote to ratify agreements with an up-or-down vote, with severely restricted time for debate and no ability to amend provisions.

The law originated with the Trade Act of 1974 under President Nixon, but it was exercised only 16 times out of hundreds of trade agreements that have been implemented since—and only for the most contentious deals. After it expired in 1994, it was re-enacted again in 2002, which was when the U.S. finalized and ratified several more controversial trade agreements using this procedure. It paved the way for the ratification of deals with Peru, Colombia, Australia, and South Korea—all of which contained slightly modified, expanded versions of the DMCA. These rules paved the way for lawmakers in those countries to enact ever more expansive copyright rules that severely affect users' rights. This last Fast Track term expired in 2007.

Unfortunately, another Fast Track trade bill passed in the summer of 2015. There is one silver lining to the new Fast Track legislation, however: it will force the White House to release the final trade texts for 60 days before Congress votes to ratify the agreements. Those two months are critical for convincing lawmakers not to ratify the TPP or other trade agreements that make use of this ratification procedure.

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