[DC-Trade] Proposal for Dynamic Coalition document on trade transparency

Thu Aug 10 02:24:04 PDT 2017

Hi P

Just a last note on this

> On Aug 10, 2017, at 05:43, parminder <parminder at itforchange.net> wrote:
> 
> 
> On Wednesday 09 August 2017 02:09 PM, William Drake wrote:
>> Hi Parminder
>> 
>> Long time no talk, hope you’re well.  
> 
> Hi Bill, thanks I am well. Hope you too are.
> 
> Thanks for your references they provide useful background. However, my short answer to your response is; these agreements are decades old, and data economy is what 4-5 years in the making yet.

Ok, I was just responding to your statement that trade agreements do not deal with free flow of information.  They do, and they’re still legally binding international law (which you usually like, ja? :-), and via the tech neutrality principle and dispute resolution cases could very well apply to the data you have in mind, e.g. the telecom annex language speak of movement of information but was a build out from the recent transborder data flow debate, and the scheduled commitments mentioned do refer to types of services that are very much involved in moving and processing data today.  In fact there’s a pretty good case to be made that forced localization may violate those commitments, if anyone ever gets the backbone to test this in the DSM. Luckily I don’t believe anyone will challenge GDPR etc. 

Anyway, so really what we’re into here is the classification fight, which is hotly contested and not straightforward. Your position I guess is that contemporary platform services etc. (just a portion of CBDF) are not entailed by the extant rules.  Would you agree then that these issues need to be clarified? That’s part of the discussion that’s been blocked.

Best

Bill

> Terms like information and data have taken very different meanings in what was negotiated at that time, and what is being talked about right now. Information in these earlier documents is largely private, uncontested about its ownership, and a subsidiary resource to whatever are the main businesses. Today, a big issue is data collected from people, whose ownership and protections are contested, and data (and the digital intelligence derived from it) is the almost the most important resource around. So, it is different now. Which is why there are currently big issues around the "free flow of data" part in global trade forums. You mentioned India's position, I think even they are ambivalent although their "global back-office" IT business and the emerging strength in "software as a service" sector requires that data flows are not required. However, in all these cases the concerned data is clearly of the concerned principal enterprise (which either outsources IT based operations, or subscribed to SaaS services) which is a very different category form transporting public data collected over various platforms in the platform economy. 
> 
> 
> Ok, let me quote from yesterday's newspaper. Patil was the official data scientist to the Obama's White House.
> 
> Mr. Patil responded by saying that there is a darker force, as there are companies which are calculating and sitting on data that one never gave them the right to capture. These include satellite images, copying records of the court cases and they are selling it to a creditor, or somebody else and one has no recourse and ability to know that the data was moved, he said. “This is where I would love to be a very strong policy. India has a great opportunity to learn from things that we didn't do correctly,” said Mr. Patil.
> 
> 
> In the same report, Nandan Nilekani, a founder of India's most famous IT company Infosys said;
> 
> Mr. Nilekani agreed with the need for policy and gave the example of increasing amount of data and how it is being aggregated in areas like platforms which is actually a big risk. “You end up with data monopoly,” he said. “I am deeply concerned that data is going to create a new set of monopolies and whole new model of colonisation.”
> 
> 
> Does this look to you like talks about some straight forward free flow of information? Not to me. It is much more complex, and different from traditional notions of information flows.
> 
> regards
> 
> parminder
> 
> 
> 
>> 
>> I gather this group will not be able to say anything on a consensus basis regarding CBDF, so ok.  But I’d still like to understand how you’re interpreting existing international law.
>> 
>>> On Aug 9, 2017, at 06:03, parminder <parminder at itforchange.net <mailto:parminder at itforchange.net>> wrote:
>>> 
>>> Thanks for this Jeremy
>>> 
>>> Can we work on the doc without the preamble part, with which my organisation may have many issues?
>>> 
>>> There are two main ones. One with the sentence "International trade agreements that support the free flow of information across the Internet...... can assist member countries to harness the potential of the Internet to promote social and economic development for all."
>>> 
>>> I am sure you know the problem that trade justice activists have with this.... Trade agreements do not deal with "free flow of information", if anything they deal with "free flow of data”. 
>> 
>> The GATS Telecom Annex commits all signatories as follows: "Each Member shall ensure that service suppliers of any other Member may use public telecommunications transport networks and services for the movement of information within and across borders, including for intra-corporate communications of such service suppliers, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of any Member.”  Moreover, most countries made fairly unlimited commitments during the Uruguay Round on Computer and Related Services (CPC 84) except on Mode 4.  That includes e.g. software, programming, data processing, database etc. services. (FWIW, in the Doha Round India has advocated full market access and national treatment commitments in the sector, including of course Mode 4). UR commitments were also pretty strong on the relevant Telecom Services (CPC 75) including e.g. online information and data base retrieval, on-line information and/or data processing (incl. transaction processing), etc.   TPP 11 is of course more expansive and specific, including re: data.  So what kinds of “information” flow do you think is excluded from trade agreements?
>> 
>>> The two are not identical .... Free flow of information globally may perhaps be a subject dealt in frameworks like New World Information and Communication Order (NWICO, that piece of history!), it could be about media, even about social media and networks, but that is not at the core of digital issues at trade talks. The latter deal not with information flows but with data flows-- as an economic resource, as one of the most important economic resources. And speaking about, rather promoting, "free global flow of data" in an unqualified manner is not acceptable. It speaks to a certain political economy of data and digital economy... you sure know this stuff. 
>>> 
>>> Second issue is with promotion of so called "multi-stakeholder governance" for global trade negotiations. We have really never been able to understand what exactly this term means, and you know this well too, have issues with how many people and groups employ it in the IG space. We do not look forward, for instance, to promote models in trade negotiations where big business has a veto. 
>> 
>> If you mean direct participation in decision making, I don’t think you have anything to worry about there :-)
>> 
>>> Replace it is "multistakeholder participation" and we are fine...
>>> 
>>> happy to discuss this further .... parminder 
>> 
>> Thanks
>> 
>> Bill
>>> 
>>> 
>>> On Wednesday 09 August 2017 03:31 AM, Jeremy Malcolm wrote:
>>>> As we look forward to the upcoming IGF in December, I am following up (finally) about one of the outputs that we agreed to work towards for presentation at the inaugural meeting of the Dynamic Coalition on Trade and the Internet.  As explained in my original message, a small working group has put together a document, which is now ready for comments from this broader group.  You can find it below:
>>>> 
>>>> https://docs.google.com/document/d/1Cu2p-gUdAUbPJrHysjWAFQ0SM-CKWabf22D6PGXAgxo/edit# <https://docs.google.com/document/d/1Cu2p-gUdAUbPJrHysjWAFQ0SM-CKWabf22D6PGXAgxo/edit#>
>>>> 
>>>> It remains just a draft, and I would like to invite all of you to express any comments that you may have on it, either by adding them in the text, or by following up to this message.  Ideally, this should be a document that all participants in the Dynamic Coalition can endorse—and I don't think anyone should have trouble in doing so, since it restates principles that I suspect we all share, and references many familiar sources.
>>>> 
>>>> Please review the document this month so that, if possible, we can iron out any wrinkles and have a near-final document ready for presentation as an output of our Dynamic Coalition at its inaugural meeting in December.
>>>> 
>>>> On 15/5/17 12:21 pm, Jeremy Malcolm wrote:
>>>>> Dear all,
>>>>> 
>>>>> Today my organization the EFF has launched an advertising campaign around trade transparency reforms, which I would like to propose as a starting point for a document that this Dynamic Coalition could produce as an output this year.
>>>>> 
>>>>> The advertisements can be seen in POLITICO's Morning Trade newsletter at http://www.politico.com/tipsheets/morning-trade/2017/05/nafta-notification-whats-happening-and-when-220315 <http://www.politico.com/tipsheets/morning-trade/2017/05/nafta-notification-whats-happening-and-when-220315> (you might need to disable your ad blocker to see the banners, but there are also text messages in the middle and at the end of the newsletter).  The ads link to this page on EFF's website which summarizes five recommendations, and the rationales for these: https://www.eff.org/trade <https://www.eff.org/trade>.
>>>>> 
>>>>> The campaign is targetted at U.S. trade policymakers and is hence very U.S.-centric (even to the point of sounding a little jingoistic), and a couple of the recommendations are specific to the U.S. trade advisory process.  Nevertheless, I believe that the core concepts should find broad agreement amongst members of this Dynamic Coalition and that we ought to be able to fashion a consensus document that at least finds inspiration from the five recommendations made here.
>>>>> 
>>>>> I won't repeat the complete rationales for the recommendations here because you can read them for yourselves at https://www.eff.org/trade <https://www.eff.org/trade>, but the headlines are:
>>>>> Publish U.S. textual proposals on rules in ongoing international trade negotiations
>>>>> Publish consolidated texts after each round of ongoing negotiations
>>>>> Appoint a "transparency officer" who does not have structural conflicts of interest in promoting transparency at the agency
>>>>> Open up textual proposals to a notice and comment and public hearing process
>>>>> Make Trade Advisory Committees more broadly inclusive
>>>>> One of the items in this Dynamic Coalition's 2017 action plan is "To develop a multi-stakeholder approach to facilitating the transparency and inclusiveness in international trade negotiations and the domestic consultation processes".  Although that's open-ended, it could include the development of a consensus document containing a set of principles that generalises from the above five recommendations, and that's what I'm proposing.  At this point, I am asking for your feedback on the idea.
>>>>> 
>>>>> If there is broad agreement on the idea, the next step would be to form a drafting subcommittee that would propose a strawman text for further discussion by the full Dynamic Coalition.  If you support the idea of us developing such a document, are you also interested in being part of the drafting subcommittee?
>>>>> 
>>>>> Thanks and I look forward to hearing your thoughts on the above.
>>>>> -- 
>>>>> Jeremy Malcolm
>>>>> Senior Global Policy Analyst
>>>>> Electronic Frontier Foundation
>>>>> https://eff.org <https://eff.org/>
>>>>> jmalcolm at eff.org <mailto:jmalcolm at eff.org>
>>>>> 
>>>>> Tel: 415.436.9333 ext 161
>>>>> 
>>>>> :: Defending Your Rights in the Digital World ::
>>>>> 
>>>>> Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt <https://www.eff.org/files/2016/11/27/key_jmalcolm.txt>
>>>>> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
>>>> 
>>>> -- 
>>>> Jeremy Malcolm
>>>> Senior Global Policy Analyst
>>>> Electronic Frontier Foundation
>>>> https://eff.org <https://eff.org/>
>>>> jmalcolm at eff.org <mailto:jmalcolm at eff.org>
>>>> 
>>>> Tel: 415.436.9333 ext 161
>>>> 
>>>> :: Defending Your Rights in the Digital World ::
>>>> 
>>>> Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt <https://www.eff.org/files/2016/11/27/key_jmalcolm.txt>
>>>> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
>>>> 
>>>> 
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>> 
>> 
>> ***********************************************
>> William J. Drake
>> International Fellow & Lecturer
>>   Media Change & Innovation Division, IPMZ
>>   University of Zurich, Switzerland
>> william.drake at uzh.ch <mailto:william.drake at uzh.ch> (direct), wjdrake at gmail.com <mailto:wjdrake at gmail.com> (lists),
>>   www.williamdrake.org <http://www.williamdrake.org/>
>> ************************************************
>> 
> 
> 

***********************************************
William J. Drake
International Fellow & Lecturer
  Media Change & Innovation Division, IPMZ
  University of Zurich, Switzerland
william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
  www.williamdrake.org
************************************************

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