TWN Info Service on WTO and Trade Issues (Dec17/20)
12 December 2017
Third World Network
  
CSOs highlight dangers of pursuing e-com agenda in trade talks
Published in SUNS #8593 dated 11 December 2017

Geneva, 8 Dec (Kanaga Raja) - Several dozen civil society organisations and individuals have issued a statement on the eve of the eleventh WTO ministerial conference (MC11) in Buenos Aires underscoring the procedural shortcomings and the substantive dangers involved in discussing e-commerce issues in trade negotiations.

Grouped under the Just Net Coalition, a global network of civil society actors committed to an open, free, just and equitable Internet, the CSOs objected to critical issues related to the digital economy being decided in negotiations with a primary "trade" framework.

They pointed out that such negotiations, whether in the World Trade Organisation (WTO) or in free trade agreements (FTAs), could amongst others threaten digital fundamental rights and freedoms, and result in a take-over of much of Internet governance by the WTO or other trade-oriented governance forums.

Among the organisational members of the Coalition are Asia Pacific Forum on Women, Law and Development (Thailand); Bangladesh NGOs Network for Radio and Communication (Bangladesh); Consumer Unity and Trust Society (India); CODE-IP Trust (Kenya); Knowledge Commons (India); Other News Association (Italy); IT for Change (India); Panos South Asia (Global); Third World Network (Global); Instituto Del Tercer Mundo (Uruguay); Association for Proper Internet Governance (Switzerland); Arab NGO Network for Development (Lebanon); Action Aid (Global); Focus on the Global South (Regional); and Development Alternatives with Women for a New Era (Global).

The Coalition also comprises a host of individual members (see http://justnetcoalition.org)/.

In their statement issued on 7 December, the Coalition pointed out that they have been among the 309 civil society organizations (letter of global civil society sent to WTO members on 9 October) who have called upon the member countries of the WTO to refrain from accepting the proposals of some WTO members who are pushing a dangerous and inappropriate new agenda under the disguising rubric of "e-commerce".

According to the Coalition, key provisions of the proposals which are not acceptable from the point of view of important public interests include: a prohibition of requirements to hold data locally; a prohibition of otherwise regulating cross-border data transfers; a prohibition of requiring a local presence for goods/service providers in the country; and a prohibition of requiring open source software in government procurement contracts.

The proposals also call for no border taxes on digital products, the CSOs noted.

Furthermore, it is being proposed to effectively give the WTO jurisdiction to adjudicate whether a national technology or data regulation was "reasonable," "objective," "transparent," and "not more burdensome than necessary to ensure the quality of the service."

The WTO's adjudication processes have historically tended to favour commercial interests. And giving them a blanket supervision of technology/data regulation may go against governments' obligation to ensure that services are operated in public interest and respect human rights and freedoms, the CSO statement argued.

In addition, discussions in the WTO and in so-called free trade agreement (FTA) negotiations are neither transparent nor inclusive, thus resulting in decisions that do not take into account the interests of all concerned parties.

The processes are overly influenced by big business interests, it said.

The Coalition went on to highlight some procedural shortcomings as well as the substantive dangers involved in discussing e-commerce issues in trade negotiations.

PROCEDURAL SHORTCOMINGS

According to the CSO statement, many of the organizations that consider themselves to be part of a so-called "Internet Community" are great champions for the principle that all Internet governance topics should be discussed in open multi-stakeholder forums.

Yet many of these organizations are yet to use their considerable influence to oppose the proposals to move the crucial discourse on the future of the Internet and the digital realm as a whole to the WTO with its trade-oriented framing of the issues.

"We are for this reason (again together with many others) calling on the Internet Community to evaluate the WTO's degree of lack of openness, transparency and inclusiveness, and to use their influence with the various governments accordingly."

The CSOs emphasised there is no real advantage to be gained in negotiating Internet-related matters in the World Trade Organization or doing so behind the possibly even more opaque closed doors of bilateral or plurilateral "Free Trade Agreement" (FTA) negotiations, such as those for TiSA, TTIP, TPP, etc.

This is especially so at this stage when basic governance concepts and frameworks for Internet and data have not been worked out at forums more suited to do such preliminary work.

The CSOs said they have the impression that some of the people/organizations involved in Internet governance discussions are, at least implicitly, applying a syllogism along the following lines:

* It is acceptable that trade negotiations are secretive.

* Some Internet governance issues are related to trade.

* Therefore, it is acceptable to discuss some Internet governance issues in trade negotiations, even if secretively, and non-inclusively.

From the Coalition's point of view, the major premise in the first one is false: it is not acceptable that trade negotiations are not open (see http://www.borderlex.eu/trade-policy-ngos-wont-satisfied-eu-transparency-push/ ).

And here is a concrete example of the possible negative effects of secret trade negotiations, said the Coalition.

One proposal that has been made would prevent governments from requiring disclosure of source code. The actual proposed text could perhaps be understood to prevent governments from procuring open source software.

Maybe that is not the intent of the proposal, but, if so, the language should be changed to make it clear that there is no intent to prevent the procurement of open source software.

But maybe the trade negotiators are not too well informed on technical issues such as open source software. So, they would benefit from public inputs.

This itself is an important reason why the negotiations should not be secret, the Coalition pointed out.

"Surely, we all agree that governments benefit from input from all stakeholders," it said.

So, in the Coalition's view, the syllogism that applies here is:

* Secrecy in trade negotiations is not acceptable.

* WTO and FTAs are at present secretive and non-inclusive.

* Therefore, it is not acceptable at present to conduct negotiations in the WTO or in FTAs, especially about issues of Internet governance where a tradition of open and inclusive policy discussions has been established.

"We are aware of the fact that some people think that some level of secrecy is needed in trade negotiations. But recall that trade negotiations are supposed to be win-win: everybody is supposed to be better off in the end."

However, the Coalition said, secrecy is not normally required in win-win negotiations. Secrecy is often required in win-lose negotiations.

"So, it appears to us that the insistence on secrecy in trade negotiations indicates that they are not win-win negotiations."

But if that is the case, they said, it is all the more reason to call for openness: the public has the right to know what might be bargained away.

"Specifically, in our context, we have the right to know what, if any, human rights (e.g. free speech, privacy, access, parity of economic opportunities) are being bargained away."

SUBSTANTIVE DANGERS

The Coalition said it objects to critical issues related to the digital economy being decided in negotiations with a primary "trade" framing because such negotiations, whether in the WTO or in FTAs, could:

* Threaten our digital fundamental rights and freedoms;

* Result in a take-over of much of Internet governance by the WTO or other trade-oriented governance forums;

* Trample economic and privacy rights;

* Lock out public oversight;

* Result in decisions that could harm development and threaten human rights.

"It is axiomatic that human rights - civil and political as well as social and economic - must not be bargained away for any reason," the Coalition underlined.

"Quite on the contrary, when it turns out that current arrangements for the Internet and the digital economy do not result in these principles being implemented and upheld in practice, these current arrangements for the Internet and its governance must be changed."

But the changes must be inspired by respect for human rights, and not driven primarily by the interests of big multinational corporations.

Internet and digital issues cannot be framed primarily from a "trade perspective", said the Coalition.

"Yet what we see are efforts to block discussion on these issues at globally inclusive policy making forums, and to allow, or even encourage, them to be discussed and decided at trade governance venues like the WTO which, again, are overly influenced by the interests of big companies. We need Internet and data governance venues that are open and inclusive of all, and represent public interest, covering the full spectrum of social, economic, political and cultural interests."

This insight is at the heart of the demand for a people's Internet or citizens' Internet, said the Coalition statement.

It noted that this has been articulated well at the recent Latin American civil society meeting "Dialogues for a People's Internet: Our America towards to the Internet Social Forum (Quito, September 27-29, 2017) and its regional "internet ciudadana" process (see https://www.alainet.org/en/articulo/189104).

In particular, it is the people who bring the Internet to life and give it content to create the digital economy.

"Therefore, it does not make sense for us, the people, to remain simply as users of services that the big corporations of the sector offer us, under their own conditions! We should be able to take part in how the digital economy is developed, and we should have the real power of decision over how our contributions are used."

Because of various technological developments, we are currently rapidly entering a new phase: the era of the Internet of Things (IoT), of the digital economy and artificial intelligence.

Mass data collection provides the main input and source of value of this economy: data are used by those handling it, made usable for others, and/or sold to advertisers without taking into consideration that personal data are (in many countries) or should be governed by personality rights, an inalienable and not a property right.

Yet our personal data are processed through algorithms, including artificial intelligence, with the aim to influence and even control ever more areas of our lives.

"They are prey for surveillance programmes, spying and cyber-wars. Those who gather and control data concentrate power and wealth," the Coalition warned.

The big Internet corporations and security services take advantage of regulatory vacuums (both national and international) in order to impose their rules.

According to the Coalition, it is these regulatory vacuums that the current WTO and other Free Trade Agreement proposals aim to lock in by making it binding international law.

Under this regime, citizens are powerless to insure that their human rights and freedoms are respected, exercised and effective; and they are powerless to develop autonomous projects.

The Coalition noted that it was through awareness of this situation that the initiative behind the Internet Social Forum (ISF) took shape, as an autonomous world space of social and citizens' organizations from diverse social sectors, to debate and seek answers to this situation.

It was agreed to do so under the umbrella of the process of the World Social Forum, with its affirmation that "another world is possible" in the face of the neoliberal proposition that "there are no alternatives," the Coalition statement concluded.

[The full statement by the Coalition including various references and hyperlinks can be found at: https://justnetcoalition.org/2017/Trade_negotiations.pdf ]