TPPA’s impact on democracy
Let’s not do e-commerce in the TPPA-11!
Just when you thought you knew all the reasons why the Labour-led government needs to walk away from the TPPA-11, let me add another item to the list and another minister for you to tweet – Clare Curran.
The flow of data across borders through the Internet is massive and ever-increasing. We all use the services of Amazon, Google, Expedia or Alibaba. But we also increasingly recognise the downsides – negative impacts on jobs and local businesses, their notorious tax avoidance practices, and the ability of these mega-corporations to control, sell and manipulate data raises huge problems for privacy, data protection, consumer rights, anti-competitive practices, and cyber-security.
How many of us simply click the box when the website says we have to agree to its rules or accept cookies to proceed without thinking about the rights over our information that this gives to the giant global corporations who run the digital platforms and services? And how many of us know the TPPA guarantees those rights to those corporations? If these rules remain in a TPPA-11, our government will face huge problems in trying to regulate the digital domain, especially through privacy laws that protect our personal information as new situations emerge, and to ensure that businesses and organizations that hold our data safeguard and handle it appropriately.
The TPPA is a brilliant stealth attack by the tech industry, often symbolised by the acronym GAFA (Google, Amazon, Facebook and Apple). In recent years, they have massively increased their lobbying presence in the US. This year Google is the top corporate spender on lobbying in the US, dishing out US$6 million in just three months.
One of their main goals is to prevent governments from regulating their operations and cement their dominance for the indefinite future through trade agreements. Over time, they have managed to incorporate their ‘digital trade’ issues into the US trade agenda. In particular, the US made unrestricted transfers of data to wherever in the world the companies want to hold them, and bans on requirements that data is held inside the country of origin, among its highest ‘trade’ priorities.
The landmark was the electronic commerce chapter in the TPPA. It’s not something we have talked much about here. But it is hugely important for the future. Specifically, Article 14.11 on Cross-Border Data Transfers by Electronic Means and Article 14.13 on Location of Computing grant businesses the freedom to outsource data storage and processing to anywhere they want without any limitation. They significantly undermine the ability of the NZ government to secure our data against unauthorized or unlawful processing, or accidental loss or destruction of, or damage to, personal data.
Even though there is an exception permitting governments to adopt or maintain measures inconsistent with the cross-border transfer of information it is not strong enough to protect the policies, laws and regulations we need to safeguard privacy. The US insisted on wording that would allow it to maintain its weak privacy and strong state surveillance laws. Other countries have recognised this. The EU has rejected the same language proposed in the TISA negotiations, and there is a ‘placeholder’ for cross-border data transfers in the EU – Japan FTA because they couldn’t agree on a strong enough exception.
Other parts of the TPPA’s e-commerce chapter would restrict our ability to require access to source codes. That’s how you can check on practices like Volkswagon’s fraudulent software to disguise excessive emissions and Google’s gender algorithm that meant only men got shown jobs for senior management positions, and how you can ensure there are effective protections against hacking.
The e-commerce chapter was insisted on by the US. The US is no longer in the TPPA. If the TPP’s e-commerce rules are kept in the TPPA-11, the beneficiaries will be the major US technology companies, and possibly those from China, neither will have to give anything in return. We will be the losers, again.
The Japanese media reports that Vietnam, and possibly other countries, want to remove the data provisions at least from the agreement. The new government needs to support them at next week’s APEC meeting in Vietnam, and add the e-commerce rules to the agenda for a comprehensive independent review of the TPPA-11 before it makes any decisions we will regret far into the future.
Thanks to Burcu Kilic, from Public Citizen in the US, for input on this. To read more about the e-commerce agenda and its implications, see Jane Kelsey, TiSA – Foul Play, UNI Global Union, 2017, http://www.uniglobalunion.org/news/tisa-foul-play
I wonder if we could use the ISDS provisions to sue the GAFA corporations to pay their bloody fair share of tax!
Wouldn’t that be a turn-around!!
The way student debt and mortgage debt is structured. Means the brightest bunch of graduate lawyers are forced to join the private corporate sector just to pay off the debt. And every one else who can’t shape up become public prosecutors. Creating a knowledge gap that only money can fill. Tipping the scales of justice in the cooperate sectors favour. You know I’v said that if interest rates where to rise. Then borrowing way beyond ones pay packet destroys the interest rate apartheid wall that separates the haves from the have nots.
‘The TPPA is a brilliant stealth attack by the tech industry, often symbolised by the acronym GAFA (Google, Amazon, Facebook and Apple).’
My sources describe the combination of Facebook Apple Netflix Google as FANG.
FANG seems so appropriate, since they have their fangs into the ‘flesh’ of western societies.
Missing from this list is Microsoft, the granddaddies of “digital trade” lobbying, SLAPP suits against open source projects like the Linux kernel, and so much more. Bruce Sterling identifies the five horsemen of the tech armageddon as Apple, Google, Amazon, Facebook, and Microsoft, and refers to them collectively as “The Stacks”.
https://www.theatlantic.com/technology/archive/2012/12/bruce-sterling-on-why-it-stopped-making-sense-to-talk-about-the-internet-in-2012/266674/
But you’re right to put Netflix in the list too. They pushed as hard as Microsoft and Google to make TIm Berners-Lee and the W3C put EME crippleware into most people’s HTML5 web browsers (people using free code browsers probably don’t have it or can manually remove it).
https://www.theregister.co.uk/2017/09/18/w3c_approves_eme/
There are other companies too, second tier wannabe Stacks like Twitter, Snapchat, Dropbox, Uber, LinkedIn, AirBnB etc that have roughly the same business models and interests with The Stacks.
Jane, your pic perfectly sums up the whole TPP agreement!
There are simply NO Benefits for the average person.
Tweeted…and ready to match in protest again.
New government….i think not.
Just another softer version of Neo liberalism.
And Winston wants to ease the rough edges of capitalism for long suffering New Zealanders….then why not start with the TPPA and refuse to sign it.
That would have convinced me that LAB-NZF- (green) were serious about rolling back the very system they say is hurting Kiwi workers and the country.
Wow a perfect opportunity to be truly counter revolutionary.
Could have been Adern,s real nuclear free moment.
I had hoped that Labour would kill the short sighted TPPA for good. Will some en masse communication to a new minister in a government led by a relentlessly positive 30 odd year old change anything? I despair. Jacinda needs to stop trying to please people. Thanks for those who know things like Professor Kelsey.
Jane is absolutely right that Aotearoa will be harmed, not helped, by signing up to TPP or any international agreement that prevents governments from differentiating between providers on the geographical location of their servers.
regulating for privacy and data sovereignty.
Private data held by government departments should *never* be hosted outside the country. Ideally it should be hosted on servers located in secure, government occupied buildings, managed by fulltime admins employed by the public service. This alone doesn’t guarantee security, it’s just a minimum necessary condition, as is using only free code software that can be independently audited.
There are issues of tino rangatiratanga at play here too. Tangata whenua often want their digital selves to be stored on servers located in their rohe, under their control. When commercial providers offer such a service, they need to be held accountable if they’re not actually providing it, and the government needs powers to investigate that.
International rules that force governments to treat any digital hosting provider as a “cloud”, located nowhere, are a trojan horse for further privatization of government data management, and corporatization of community data management.
Very timely post, thank you Prof Kelsey.
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