Last updated: October 2015
Digital rights, online privacy and the EU-US free trade agreement
Glyn Moody discovers a Christmas list from lobbyists in the latest in our series on the Transatlantic Trade and Investment Partnership (TTIP).
It is striking that copyright and online privacy, two hugely important areas of TTIP, have hardly been mentioned publicly at all. That is not because they are minor issues; on the contrary, it is because the negotiators know that TTIP’s effects on them are likely to be some of the most controversial and fiercely contested.
Copyright is highly sensitive because of what happened with the previous transatlantic agreement: ACTA – the Anti-Counterfeiting Trade Agreement. Like TTIP, ACTA was negotiated under the tightest secrecy, with no input from the public, and largely implemented the wishes of large companies on both sides of the Atlantic. The damaging proposals in ACTA included turning internet providers into copyright police, and making the unauthorised sharing of even a few files online a criminal, rather than civil, offence. When this information was leaked, people took to the streets, literally, which led in 2012 to the agreement being rejected by the European Parliament by a huge majority.
The European Commissioner who negotiated ACTA was Karel De Gucht, and he’s currently the person with overall responsibility for TTIP. Needled by accusations that TTIP was simply ACTA 2.0, he claimed that ACTA-like legislation was not going to be introduced by the back door. “I’m not going to reopen that discussion. I am not a masochist,” De Gucht told the EU’s Committee on international trade.
When the new European Commissioners take up their jobs later this year, De Gucht will no longer be among them. He must be relieved. Since De Gucht issued the statement above to assure the public that TTIP would not be an attempt to bring in ACTA surreptitiously, we’ve heard nothing officially from the EU Commission that suggests otherwise. However unofficial reports from EU insiders do suggest otherwise. Just before Christmas last year, a small but select gathering of European Commission officials and multinational corporations took place in Brussels. Also present was Ulf Pettersson, policy advisor to the Pirate Party in the European Parliament. Here’s a key part of his description of what was discussed:
“Previously – towards the public and the Parliament – the Commission has created the impression that intellectual property rights will be downplayed [in TTIP]... In reality, the Commission now revealed that they have received “quite a Christmas list of items” on intellectual property from corporate lobbyists and that they are working to implement this list.…
[It] covers almost every major intellectual property right. On patents, industry had shown “quite an interest” especially on the procedures around the granting of new patents. On copyrights the industry wants to have the “same level of protection” in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public.”
That seems to indicate that the plan is to avoid public discussions of these sensitive areas, but keep the back-room discussions going so that ACTA-like copyright provisions can be dropped into TTIP at a later date. Pettersson’s account of the meeting describes the head TTIP negotiator for IP acknowledging the risk posed by NGOs and public criticism, and quotes him as saying, “I am happy that the focus has not been on us” (i.e. the intellectual property negotiations and issues).
Like copyright, data privacy has been conspicuous by its absence from the TTIP talks. This is probably because the disagreements between the EU and US sides are deep, as we know from the way a new EU Directive on Data Protection has turned into a real battleground. On the one side are European privacy campaigners who wish to strengthen the law that controls how personal data can be used by online companies like Google and Facebook, and on the other those same companies are fighting to be allowed to do as they wish with it for commercial purposes.
The lobbying of Members of the European Parliament has even reached the point where some MEPs were submitting proposed amendments to the Directive that were, word-for-word, identical to documents prepared by corporate lobbyists.
From this we can be sure that the US negotiators will be aiming to use TTIP’s declared purpose of removing “non-tariff barriers” to argue for the free flow of personal data across the Atlantic. Stringent privacy protections would constitute a “barrier to trade”, and must thus be removed. How dare Europeans aspire to higher standards than Americans?
Investor State Dispute Settlements
Although the secrecy in which the negotiations are shrouded makes it almost impossible to know what exactly is being discussed for both copyright and online privacy – at least until some public-spirited person leaks the relevant documents – we can be sure of one thing: that the controversial investor-state dispute settlement (ISDS) system could be used here as elsewhere. This would allow companies to sue the EU over changes in copyright law and data protection.
Imagine that instead of always lengthening the term of copyright it were reduced. This is unlikely, but not unreasonable: there is no economic evidence that the current 70 years plus life is any more productive than the original 14-year term granted by the first copyright law in 1710. In that case, publishers would doubtless claim that the loss of the extra years of copyright constituted an “indirect expropriation” of their future profits. The threat of legal action would probably be enough to block any moves to reduce the term of copyright – a perfect demonstration of the chilling effects that ISDS would have on future policy.
Similarly, EU governments would be unable to decriminalise unauthorized downloads – another eminently sensible option since a considerable body of research indicates file-sharing actually boosts sales, rather than harms them.
The recording industry would cry that this was an indirect expropriation of their future profits, and threaten to sue. The presence of ISDS in TTIP would prevent governments from implementing legitimate policies that they and their citizens have decided upon.
Finally, it’s worth noting that the threat of an ISDS challenge may not be the only way that governments would find their ability to implement new regulations restricted. Away from copyright and privacy issues there have been some leaks around TTIP. A leaked European Commission document explores the idea of setting up a ‘Regulatory Council’ as part of TTIP, which would effectively vet, on an ongoing basis, proposed laws and regulations even before they enter the legislative process. 
One key aspect of this review would be the requirement to carry out an impact assessment/cost benefit analysis on “impacts on international and, in particular, transatlantic trade.”
Proposals to strengthen protection for personal data online or reduce the term of copyright would likely be viewed as having a negative effect on transatlantic trade, and thus rejected by the Regulatory Council. That’s largely because the terms of reference of the Council are purely financial: no account is taken of things like privacy, the environment or even public health.
A chilling effect on democracy
The above description of TTIP’s likely effect on the important areas of digital rights and copyright is necessarily sketchy and speculative because so little information about the talks is being made available.
The European Commission has made it clear that the public will only learn officially what is in TTIP when the negotiations are complete, by which time it will be too late to do anything about it. That’s not just patronising and shabby, but profoundly undemocratic too.
Glyn Moody is author of Rebel Code: Linux and the Open Source Revolution (2001) and writer, journalist and blogger, mostly on Open Source, open data, the commons, copyright, patents and digital rights.