New TISA Leak: US On Collision Course With EU Over Global Data Flows

from the would-be-fun-to-watch-if-only-it-weren't-secret dept

Although most attention has been given to the Trans-Pacific Partnership agreement (TPP) and the Trans-Atlantic Free Trade Agreement (TAFTA), also known as TTIP, it’s important to remember that a third set of global trade negotiations are underway — those for the Trade in Services Agreement (TISA), which involves more countries than either of the other two. Like TPP and TAFTA/TTIP, TISA is being negotiated in strict secrecy, but earlier this year the financial services annex leaked, giving us the first glimpse of the kind of bad ideas that were being worked on. Now, another leak has surfaced, which reveals the US’s proposals to free up data flows online.

For the European Union, that’s a hugely sensitive issue. Under data protection laws there, personal data cannot be sent outside the EU unless companies sign up to the self-certification scheme known as the Safe Harbor framework. However, in the wake of Snowden’s revelations about NSA spying in Europe, the European Parliament has called for the Safe Harbor scheme to be suspended. If that happens, the only way that US Internet companies could comply with the EU Data Protection Directive would be to hold personal information about EU citizens on servers physically located in Europe. But it is precisely that kind of requirement the leaked TISA position seeks to forbid:

Article X.2: Local Content

l. Subject to any conditions, limitations and qualifications set out in its Schedule, no Party may, in connection with the supply of a service by a service supplier, impose or enforce any requirement; enforce any commitment or undertaking; or, in connection with the supply of a service through commercial presence, condition the receipt or continued receipt of an advantage on compliance with any requirement:

(a) to purchase, use or accord a preference to:

(iii) computing facilities located in its territory or computer processing or storage services supplied from within its territory;

Another section would stop countries from imposing any restrictions on data flows:

Article X.4: Movement of Information

No Party may prevent a service supplier of another Party from transferring, accessing, processing or storing information, including personal information, within or outside the Party’s territory, where such activity is carried out in connection with the conduct of the service supplier’s business.

It comes as no surprise that the US is pushing for the unhindered cross-border flow of all data, including personal data: it’s what both the USTR and US companies have been demanding for a while. But it’s going to be hard to get the European Union to agree to such a direct attack on its privacy framework. The European Commission has publicly stated that TISA will not undermine the EU’s data protection laws. Moreover, just a few hours after the TISA leak was published, the EU politician with responsibility for TISA in the European Parliament, Viviane Reding, tweeted as follows:

As @EP_Trade Rapporteur on #TiSA, I’ll oppose any provision undermining right to data privacy: competition by the rules, not for the rules!

With such entrenched positions on both sides, it’s hard to see how any kind of compromise will be possible. The imminent battle between the US and the EU on this key issue in TISA will doubtless be fun to watch; what a pity it will happen in secret, behind closed doors.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Comments on “New TISA Leak: US On Collision Course With EU Over Global Data Flows”

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17 Comments
Nick Ashton-Hart (user link) says:

If the premise were true we'd all be right to be worried .... but it isn't.

With respect, assuming that because the US offer doesn’t have an exception for privacy in it = the treaty is going to undermine privacy is just not at all a real response.

I’ve been following this negotiation since before it officially began. There was a very early agreement amongst the parties that the existing exceptions for GATS (General Agreement on Trade in Services) for privacy amongst others would be horizontally applicable in this agreement.

That’s why there’s no privacy exception in the US proposal. The reason why there is a national security exception is because the US is proposing an exception that is broader than GATS’security exception.

I know beating up on trade agreements is popular – but if it is going to take place, we all have a responsibility to ensure that criticism is accurate and relates to the actual problem in hand. Simply reading one 4-page offer from one country and assuming that means you know what is going on is frankly irresponsible.

Data protection and privacy in a global Internet is simply too important to debate this way.

Anonymous Coward says:

Re: If the premise were true we'd all be right to be worried .... but it isn't.

At this point, anything that involves the US is bad for the rest of the world and a lot of political parties are getting popular because of this.
Not many people care about the details anymore, pretty much every second day we see something the US does to fuck over others.

Anonymous Coward says:

Re: If the premise were true we'd all be right to be worried .... but it isn't.

The premise is hinged on accessibility. Since the transparency is about 0 in these negotiations and before politicians accept it, the things getting leaked will cause a shitstorm even if missinformed.

If the parties privvy to more unbiased information would devulge them, the debate may improve. But as long as the basic draft, negotiation positions or at least a reasonable security valve for public concerns after negotiations are assigned prior to signing (when the text gets locked!), you will inevitably find debate distorted.

You are basically asking him to shut up unless he gets access to other informations he isn’t cleared for…

Anonymous Coward says:

Re: If the premise were true we'd all be right to be worried .... but it isn't.

Data protection and privacy in a global Internet is simply too important to debate this way.

If you haven’t heard then, all these trade treaties are being held in secret. The public doesn’t get to know what is in them and as far as I am concerned that means I don’t have the facts to debate them, any more than you do unless you are on the inside with access to those facts.

That it is being held in secret tells me there is a lot of dirty going in these treaties that wouldn’t stand the light of day, just like the last batch that has been going down the pipeline. As far as the public goes there is no debate and that is a serious problem.

Gertie the Dinosaur says:

Re: If the premise were true we'd all be right to be worried .... but it isn't.

I know beating up on trade agreements is popular – but if it is going to take place, we all have a responsibility to ensure that criticism is accurate and relates to the actual problem in hand. Simply reading one 4-page offer from one country and assuming that means you know what is going on is frankly irresponsible.

So… we’re supposed to keep our mouths shut until they’re ready to ram it down our throat? Let them publish the drafts for discussion and debate by the affected peoples, now that would be “responsible.” Until then, we’re going to have to discuss it based on whatever meager scraps of information and rumor that we can find.

John Fenderson (profile) says:

Re: Re: If the premise were true we'd all be right to be worried .... but it isn't.

This.

These agreements are being debated not just in secret, but without the involvement or agreement of the largest and most important “stakeholder”: the citizens of the nations involved.

That is sufficient reason to view these agreements with extreme suspicion all by itself.

That One Guy (profile) says:

Re: Re: Re: If the premise were true we'd all be right to be worried .... but it isn't.

More than that, it’s sufficient reason to automatically assume the worst about the agreements, and respond accordingly.

If those in the ‘discussions’ of the agreements feel that that is unfair, then they are welcome to make the texts public, but until they do that, I’d say it’s fair for the public to assume that anything and everything being discussed is being kept secret due to being so incredibly damaging to the public and their rights.

Anonymous Coward says:

there isn’t one of these so-called ‘Trade Deals’ that isn’t being done to benefit the USA, regardless of whether it/they benefit any other nation. these ‘Deals’ all stem from the USA and can only be for 1 main aim and that is to actually take control of as much of the Planet as possible, rather than as it is atm, thinking it controls the Planet!

Yes, I know I'm commenting anonymously says:

My first reaction was “Oh, great, another treaty ready for hijacking by lobby-groups.” But it might actually be very useful as presented: As long as the EU will not agree to the treaty, it will not come into effect. The usual lobby-groups should be encouraged to put a lot of effort into this treaty. This enables everyone to pass good laws at home while the lobbyists are busy elsewhere.
By the time the treaty is dead, we start over with a new treaty. And if we actually want a good international treaty, we can either do that openly or tie up the lobby-groups in domestic stuff.
The hard part is getting someone to actually pull this off…

John Fenderson (profile) says:

I hope the EU sticks by its guns on this

Despite all of the recent legislation coming from EU nations that isn’t so good on issues of privacy and freedom, the data protection laws are actually quite good, and I really wish that the US would adopt something along similar lines. I hope the EU doesn’t allow them to be undermined like this — if those laws are effectively removed, then it makes it much less likely we’ll be able to do anything similar in the US.

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