Wikileaks publishes TiSA: A secret trade pact between US, Europe and others for big biz pals

This one covers Western countries and telecoms, e-commerce, foreign workers


Fresh from offering $100,000 to anyone that leaks the still-secret parts of the Trans-Pacific Partnership (TPP), Wikileaks has published large chunks of the related Trade In Services Agreement (TiSA).

TiSA is one of a triumvirate of trade treaties being negotiated across the world, except this one does not include the so-called BRICS countries (Brazil, Russia, India, China and South Africa).

It does however includes the US, European Union and 23 other countries (such as Australia, Canada, Israel, Mexico) that together represent more than two-thirds of the world's trade. So it is a huge deal.

Like the other two treaties, the Trans-Pacific Partnership (TPP) and the the Transatlantic Trade and Investment Partnership (TTIP), this accord has been negotiated in secret, with governments going to extraordinary lengths to keep them so, and the overall upshot is to benefit multinational corporations.

TiSA is, as its name suggests, focuses on trade in services i.e. in professional services, e-commerce, delivery, air traffic and so on. It also, ironically, includes a section on transparency.

Ok, so what's in it?

Wikileads has published 17 documents, including drafts and annexes. The one of most interest for El Reg is likely to be the e-commerce annex, which includes:

Article 2 covers "Movement of Information" or more accurately "Cross-Border Information Flows".

There is general agreement that countries should not be allowed to prevent a company from transferring information outside that country.

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.

More accurately, this text means that countries can't make companies store information on their citizens in their country - an issue that has been in the forefront of people's minds following the NSA revelations that showed the US government stores and searches such information all the time.

A number of countries, including Brazil and Germany, have seriously contemplated new laws that would force companies to store domestic user data on servers physically hosted in the country. This wording would obliterate that approach and be a big boon for Google, Facebook et al. And of course the US security services.

It is also a pretty logical decision given how the internet works. If you start breaking up data into locations, not only do you make it hugely more expensive for companies to offer their services but you also gain little or nothing from forcing artificial structures onto the internet via gateways.

On the flipside, the European Union has much stronger privacy laws than the US and the "safe harbor" compromise that was reached over a decade between the two is showing signs of creaking.

Another piece of Article 2 text makes the same basic point:

Parties should not prevent foreign suppliers of electronic commerce or customers of such suppliers, from electronically transferring information internally or across borders, accessing publicly available information, or accessing their own information stored abroad.

Non-controversial elements

Many parts of the treaty are good and useful.

Article 3 is about Online Consumer Protection and basically just lays own the fact that people should have access to their own consumer protection agencies when purchasing goods or services online. It's important and probably difficult to implement, but not controversial.

Article 4 deals with Personal Information Protection and obliges countries to come up with ways of protecting their citizens' personal information in law, publishing them and making those laws fit with international norms.

Article 5 covers spam. It obliges countries to make it possible to stop spam and include such things as consumer consent, a way to punish companies that send spam and to work cooperatively with other countries to reduce or limit spam. The only people that won't like this part are spammers.

Article 7 is very short and covers interoperability. Basically it says that countries should make sure their systems government services work online.

Article 8 ensures open networks - basically letting the internet do its job. Citizens should be allowed to use services and applications online, connect to the internet, and be told if their ISP is restricting anything.

Of course there are some caveats in here: "subject to reasonable network management" and "subject to applicable laws, and regulations". But the principle is good.

If China were involved in this treaty the wording would probably be different. Turkey may be interesting to watch - it has repeatedly done things like banning Twitter. Under this treaty, at least in theory, it would have to actually pass a law banning particular services, rather than decide in an ad hoc manner. Again, this is a good thing to have in a treaty.

Article 10 says you have to accept electronic signatures. Article 11 says no customs charges or fees on electronic deliveries. Article 12 says everyone will work together. Article 13 says the treaty will be reviewed at some point.

Article 14 says everyone else is out of the window if a country feels that it has to do something for "protection of its own essential security interests;" A get-out clause just in case.

Article 15 is definitions - important but dull.

And that leaves…

Articles 6 and 9.

Article 6 seems innocuous but may have a significant side-effect:

1. No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.
2. For purposes of this Article, software subject to paragraph 1 is limited to mass-market software, and does not include software used for critical infrastructure.

Some fear this effectively prevents governments from issuing an open-source mandate, as some countries have consider doing. The dark side of this is that software with backdoors - as the US government has publicly asked for - could not be prevented so long as people wish to use that software.

On the other side, it seems reasonable that countries can't demand the companies hand over their full source code to be allowed to be used in that country. Microsoft, Apple etc will be happy this article is in there.

And lastly Article 9 is, like Article 2, about storing local data in a particular country.

No Party may require a service supplier, as a condition for supplying a service or investing in its territory, to:
(a) use computing facilities located in the Party’s territory;
(b) use computer processing or storage services supplied from within the Party’s territory; or
(c) otherwise store or process data in its territory.

Article 2 was about the actual data. This article is about not forcing companies to have physical servers in each country.

Nothing in here is as troubling as the stuff that is in the other two treaties - like giving corporations the ability to sue governments, or extending intellectual property rights far beyond what many will feel is reasonable.

This part of the treaty does favor existing internet giants who already have huge marketshare. It means that governments won't be able to effectively create their own Facebooks and Googles by shunting out the US giants. But likewise, it also means that the Facebooks of the future have a level international playing field.

The important part however is that without Wikileaks publishing this treaty no one outside government teams and large corporates would have any idea what was law until it was passed: something that rankles, especially in the era of the internet.

We will look over the other documents such as those covering "professional services" and "telecommunication services" to see if there is anything in there that is troublesome. ®

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