TiSA leaks: What future for the world’s largest trade agreements?

Today Greenpeace Netherlands released new documents from the Trade in Services Agreement (TiSA), a massive trade deal now being negotiated by 23 member countries of the World Trade Organisation (WTO), including the EU, the US, Japan, Costa Rica, and Colombia. TiSA aims to further open these markets up for trade in services, such as e-commerce, undefined “cross-border data flows”, telecoms, and more. The negotiations for this agreement were launched in 2013 and are taking place behind closed doors.

Below, we take a look at the TiSA leak and what it means for digital rights. We also examine the status of the Transatlantic Trade and Investment Partnership (TTIP), an EU-US trade agreement that raises some of the same concerns.

What does the TiSA leak reveal?

EDRi has analysed the newly released document from the TiSA negotiations and found that:

  1. The TiSA leaks show plans for an increase of corporate influence on policy-makers, through new proposals for institutionalised lobbying.
  2. Several governments put forward provisions that could limit privacy safeguards that the European Union has long fought for and recently strengthened in the General Data Protection Regulation.
  3. Exceptions for “essential security interests” are a Damocles sword over every single part of the agreement, endangering even the most positive aspects of TiSA.
  4. In relation to Net Neutrality, and despite the efforts of the European Union (EU), TiSA’s draft text leaves the door open to some forms of online discrimination, such as zero-rating.
  5. There’s a general lack of ambition regarding Unsolicited Commercial Electronic Messages (e.g. spam), and the provisions would be in contradiction with the rules in place under the EU e-Privacy Directive which protects the confidentiality of communication and the right to privacy.
  6. TiSA can limit the access and transfer of software source code.

None of this is positive for digital rights. And TiSA is only one of a number of trade agreements that threaten privacy and free expression online. The TiSA leak comes only a few months after Greenpeace published hundreds of pages of information about TTIP (see our analysis of the leaked documents). Notably, however, it looks like TTIP has lost some steam. Several EU countries have indicated that they want to put TTIP negotiations on hold. But it’s not clear whether that will actually happen.

Is TTIP losing fans?

When Sigmar Gabriel, the German Vice Chancellor and Economy Minister, declared this summer that the TTIP talks “have de facto failed because we Europeans of course must not succumb to American demands”, it caused a chain reaction, and TTIP’s support began to fall like dominoes. The French President and Secretary for External Trade were the first to call for a stop to the negotiations, indicating that France could no longer support TTIP. Despite this symbolic hit to the agreement, the EU Commission continued negotiations with the United States. France could do no more than protest; it cannot formally withdraw the mandate it gave to the EU to negotiate on its behalf.

TTIP’s future is even more uncertain now that more countries have rallied to the French position. Austria has recently added its voice to the debate, asking for talks to be stopped and the whole negotiating process to start fresh. Belgium has also voiced concerns about the deal, arguing that the deal is “unbalanced” and the discussions “might have to be abandoned for now”.

Since only a few member states, such as Finland, appear to want rescue the deal, the EU Commission and US negotiators have been working overtime to convince everyone that TTIP isn’t dead yet, and that the EU and US alike are committed to reaching a deal the end of the year. That may be easier said than done.

From what we can gather from public statements, it appears that negotiators have made very little progress on TTIP since the Greenpeace leak in May. Well aware of the lack of progress, the Commission is now attempting to get the US to agree to a “TTIP lite” so the EU can complete negotiations for a partial trade deal by January. But so far, the US administration is not convinced, and has indicated it would like to continue focusing on TTIP as a whole.

Whether it’s TTIP lite or TTIP in entire, however, our concerns stand regarding the agreement’s impact on privacy, telecoms, and data protection.

If TTIP dies? Look in its shadow

Navigating these troubled waters, the TTIP ship might sink. But even if it does, other threats remain. In the shadow of TTIP, not only do we have the afore-mentioned TiSA agreement, we also have TPP and CETA. CETA — the EU-Canada trade agreement —  includes a mechanism to allow companies to challenge governments’ policies in opaque tribunals called Investor to State Dispute Settlement (ISDS). It also has far-reaching national security exceptions to human rights protections, in particular privacy and data protection. TPP — the Trans-Pacific Partnership —  has highly problematic copyright and internet provider liability measures,  which would enact some of what the ill-fated ACTA proposed.

On TiSA, TTIP, and other trade agreements, we need more transparency to protect rights

As we’ve noted many times before, transparency is key for legitimacy and accountability. The public needs an informed debate about these agreements, including discussion of the human rights impacts, before we can determine whether to adopt them. More generally, comprehensive reform of trade negotiations is long overdue. There should be public debate and consultation at every stage, ensuring the participation of diverse stakeholders. Otherwise there is no chance to establish legitimacy and trust in what is clearly a broken system.