from Net Politics and Digital and Cyberspace Policy Program

The White House Exaggerates the Benefits of the TPP to the Open Internet

June 08, 2016

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Susan Aaronson is research professor of international affairs at George Washington University, and GWU cross-disciplinary scholar. Valeriya Denisova is a research assistant at GWU and a recent graduate of the Elliott School of International Affairs.

The Obama administration makes big claims about how the Trans-Pacific Partnership (TPP) will affect the Internet. It argues that the TPP will promote a free and open Internet through binding language that limits data localization policies, bans taxes on information flows, promotes Internet interoperability (enables the Internet to work effectively around the world), and mandates civil society participation and transparency in the development of Internet regulations. The White House has also argued that the TPP “promotes E-Commerce, protects Digital Freedom, and preserves an Open Internet” because it allows the TPP signatories to challenge censorship and filtering as trade barriers. There’s no doubt that the TPP has the potential do all of these great things. But once ratified and implemented, it will do little to deliver on these promises because the TPP has a number of exceptions and loopholes allowing governments to justify their blocking, filtering, or censorship of information flows.

The TPP will undoubtedly affect how the internet is governed. First, citizens in the twelve TPP parties comprise 11.4 percent of the Earth’s population—which was approximately 25 percent of all Internet users in 2015. Second, non-TPP nations engage in extensive cross-border information flows with individuals and firms in TPP countries, requiring them to comply with the TPP’s rules with respect to data flows. Third, the TPP includes important and growing markets for digital products and services in signatory countries such as Malaysia and Vietnam. Finally, China, Colombia, Indonesia, the Philippines, South Korea, Taiwan, and Thailand, have expressed interest in joining the TPP should it come into effect.

The TPP covers online service providers and users, who may be both individuals and firms.  Although the agreement requires signatory states to create an effective enabling environment to protect the privacy of internet users (who are only mentioned in Article 14.8), the TPP does little to promote interoperability among different privacy regimes with different levels of protection. Hence, the TPP establishes a floor for privacy rights but offers little clarity on how to reconcile these twelve different regimes. Beyond privacy, the TPP says little about digital rights. Although the United States argues that the TPP promotes Internet freedom, it doesn’t delineate how governments should respect digital rights, such as freedom of association, speech, and due process as they engage in cross-border information flows. However, the TPP does state that regulations, including internet-related regulations, must be developed and applied in a transparent and accountable manner, allowing individuals and firms to challenge such policies if they violate trade norms.

Moreover, the TPP’s ability to constrain censorship and filtering is limited. First, not all information flows are cross-border and hence subject to trade rules.  Therefore, policymakers can’t always rely on trade agreements to defend internet openness in countries that have a history of censorship like Malaysia and Vietnam. Second, trade agreements provide clear exceptions that allow governments to restrict information flows when they deem necessary. Government officials can use national security, privacy, or public morals rationales to restrict information flows as long as they do so in a non-trade distorting manner. For example, in May 2016, Vietnam blocked Facebook, after Vietnamese citizens used the social network to organize public protests over an environmental disaster. If the United States (or other TPP party) wanted to challenge Vietnam’s censorship of Facebook as a barrier to trade, Vietnam could claim that it acted under the exceptions. At the same time, the United States and other TPP parties would be unlikely to challenge these exceptions as discriminatory—trade diplomats recognize that they could also be challenged later if they took similar actions.

The United States is a leading supporter of such broad exceptions, and argues that the TPP’s general exceptions chapter “ensures that the United States and the other TPP Parties” are guaranteed “the full right to regulate in the public interest, including for national security and other policy reasons.” Moreover, the United States pushed to expand the TPP’s national security exception beyond that delineated in earlier trade agreements, such as the General Agreement on Trade in Services. This exception, “applicable to the entire Agreement, makes it clear that a party may take any measure it considers necessary for the protection of its essential security interests.”

The TPP is complicated and legalistic, easy to demagogue, and hard to understand. It could help promote an open internet because it encourages cross-border information flows, bans data localization policies, and offers a means to challenge censorship and filtering as barriers to trade. However, the TPP signatories can continue to block, filter, or censor cross-border information flows by relying on TPP’s broad exceptions. Moreover, the TPP says little about users or how to enhance their welfare online except to protect privacy. If the United States really wants to promote Internet freedom in its trade agreements, it should include language related to the regulatory context in which the Internet functions. By incorporating language to encourage interoperability, free expression online, the rule of law, and due process, trade diplomats can justifiably make a case that these rules safeguard digital rights.