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US attacks on data privacy through trade agreements

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thank you very much you might be wondering why we're talking about this what to trade agreements have to do with privacy I've actually at a lawyer who specializes in trade agreements and I was reading and I recently I noticed something new and they have these provisions that look like they undermine privacy so I thought I'd bring them before you and see what you think because you might think that trade agreements are about exploding things selling bottles of water to another country with lower tariffs taxes when they go to another country but today's free trade agreements especially with that involve developed countries go far beyond this so for example 1 of the trait free trade agreements currently being negotiated by the United States is called the Trans Pacific Partnership Agreement there 29 chapters 7 of those are about exporting things cars motorbikes bicycles the other 22 chapters are about your domestic laws your laws on copyright your laws on privacy you'll all the net neutrality as we'll hear about in the next session here so these trade agreements that we talking about today other ones will we know or expect that the US has proposed provisions that would require cross-border transfers of data without sufficient privacy exceptions so this 1st trade agreement doesn't even involve good at all it's about services and water services you can think of
services as everything you cannot drop on your foot story is not others but it is the sale of bananas the advertising of bananas them the distribution of bananas in trucks but it's also health care banking electricity water education professional services like doctors nurses architects shops ICT all these things are services so this trade agreement is just about trade and services not about selling any products you can see the countries the way that it includes the EU and the USA yeah and other countries are they trying to get other countries to join and in fact they're trying to turn it into an agreement at the World Trade Organization which has 161 countries a so if this has provisions about cross-border data transfers how will it be enforced if say the European Union doesn't comply we expect that governments will be able to sue each other at an international tribunal and we're not sure yet what the penalty would be normally the penalty is the winning government raises the tariffs the taxes on the losing governments exports of products like cheese but there's no products here so you cannot raise tariffs on anything there under tariffs on services so maybe they'll have monetary penalties instead pay a fine if you don't comply but what we do know about this thanks to some leaks is that the US is proposing cross-border data transfers and it looks like without sufficient privacy exceptions what are some of the other relevant agreements that's the Trans Pacific Partnership Agreement I'm not sure how many people in the room of from countries in the TBP so we won't talk about that unless you are and then you can ask questions at the end but basically this 1 is being negotiated in secret and news reports indicate they also proposing free flow of data here without sufficient privacy exceptions there is of course the world trade organization which has 161 member countries 22 more joining this
1 is enforceable by governments suing each other at an international tribunal winning government raises the taxes on the losing governments exports until they change their laws to comply this 1 is actually slightly more transparent in that the negotiating texts are released every so often but not the country proposals this the country's allowed so will we see the reported US proposal here for cross-border datafile flows without sufficient privacy exceptions the news reports say that the US 1 consideration of and the laws that require consumers personal data to be processed and stored within their borders so that those requirements can be
eliminated but we ingenious proposal is up to them whether they release then of course the Transatlantic Trade and Investment Partnership teetered which you all know about this 1 how enforceable will be the European Union is proposing the same as the WTO so governments to each other and international court you can raise the tariffs on the
export of the losing country until they changed their laws to comply with t 2 the and here the EU is releasing some of their positions and the news reports say that cross-border data flows are being negotiated in T 2 so the 1 where we actually have quite a lot of information is the set of the trade and services agreement because there was a leak this may feel exactly and this is 1 of them you can see what it says no party so no government from a teaser countries can prevent a service company from transferring data including personal information outside of your
country to anywhere in the world where they can process it and storage as long as it is in connection with their business the so this explicitly includes personal information uh here and in connection with is very broad in trade law terms this is you know anything to do with the business it includes direct and indirect parts of the supply
chain and there is no exception by sector you can't schedule you can't list exceptions for healthful finance or other sensitive sectors we will see if there are sufficient privacy safeguards in a minute but you can imagine that this could be a problem for some countries for example some countries who are concerned about privacy have laws that say that health records when you go to your local doctor must be stored in your country so that privacy laws can apply to them even if the
stored in the cloud it has to be a cloud that is located in your country and I understand that there are new laws proposed in France and Germany that would force businesses to store and pro process certain kinds of data inside the national borders it may only be government purchasing which may have an exception make a further so could these kinds of laws continue if this is agreed to as the US is proposing cell there is a proposed security exception but there's a question about whether security also covers privacy of individuals so the US proposal also has another way of preventing local requirements store requirements to store data in your country so this 1 says that no government made again this broad in connection with by the
service company you can't force it and you can't encourage it to buy all give preference to local storage and processing facilities for data so again this is a very broad because it applies to all service suppliers so that all companies whether they are from other TC countries or your own private companies or even your own state owned enterprises None of them can do this the it would apply to all your existing and future companies to supply services in your country and again it applies in connection with the supply the service so very broadly that's everywhere up and down the supply chain directly and indirectly the but this 1 does have an exception you can put in your schedule certain exceptions and it tends to be by sector so you would exempt the health sector or the banking sector or I know the retail sector but these schedules are usually negotiated so you could try put every sector in your country but you have to negotiate and all the other teaser countries have to agree to allow you to list the sectors that you want exempted so you might start with 100 sectors you want
exempted and you end up with 2 all 5 or 25 and another another negotiate I'm not inside the secret negotiations but your negotiators could tell you how likely they are to get the exceptions that you need yeah the trouble with this is that this is what we call a negative
list you have to list now the sector that you want to exempt so you have to think now for all time what sectors there might be that involve data processing and storage for ever into the future because these agreements last forever unless you withdraw which usually can do with 6 months notice in writing but almost never see any country's withdrawal so think now look into your crystal ball and especially in this field right clouds data processing digital stuff it's all fast moving right How do we know what will be here in 10 years and 25 years in 55 years how do you know what exceptions you need to schedule so unless you have some very cleverly worded broad 1 you have to predict now once and for all every exception you might need in the future and listed in the schedule and get all the other TC countries to agree to it before you can use that exception again this does have a security exception again it's a question about how useful could be in this proposal so are there any privacy exceptions and do they work so apparently according to the European Union the provisions of the World Trade Organization services rules which a cold gas on exceptions have been put into the cell and they actually said here it will have the same privacy safeguard as gets sounds good but what does the
privacy safeguarding gets actually say this is it here and there's about 5 steps you have to pass in order to use it you have to prove that it is not arbitrary or unjustified discrimination or a disguised restriction on trade and it has to be necessary there was nothing else you could have done you should on the other thing even if was technically difficult expensive not shorter work you should on the other thing and the last 1 it can't be inconsistent with the provisions of cell which require free flow of data the so to me that's secular this last 1 you can't use it to override the provisions and say you have to allow the dotted to go out of your country without restrictions so what's the point of this exception and even without this last part of that is the real killer this 1st part has been tested a number of times in cases of the WTO and 1 study say is there have been 40 4 0 cases which have tried to use this type of exception guess what the success rate is 1 out of 40 in the history of the WTO 39 out of
40 times countries failed to be able to use these exceptions because it is so hard to pass these tests before you even get to this 1 which means that the whole thing doesn't work to override the obligation to freely allow the data to leave
your country yeah so do you think that this
is going to be enough to save your privacy requirements those you have now those you may want having future and interestingly from a in this is kind of I guess the European Commission's position but Viviane Reding who is the European Parliament's rapporteur 40 set and to used to be the President of the European Commission with responsibility for justice actually said that this US proposal Intesa was unacceptable because it guarantees the cross-border data flows without sufficient privacy protections so it seems like there's some difference of opinion occurring between the teaser reporter in the European Parliament and the European Commission who is very happy with this and thinks that this is just fine and sufficient for privacy it and but that's not the only story antisense we thanks to another lake also know more about what the US was proposing in terms of cross-border data transfers this is in financial services in particular so this is banking insurance and so on a different lake again the US proposal every government and user has to allow the banks insurance companies from other countries to transfer the data in and out of the country to anywhere in the world for processing as long as it's required in the
ordinary course of business so this confirms this is really what the US wants again what is the exception that the European Union is proposing sure free flow of information as long as and you can protect privacy as long as privacy is not used to circumvent the requirement to allow a free flow of information so it back to the secular problem so then of course and briefly this is their TBP rules but maybe you're not interested the TV we can come back to this in the questions if you ask and the last part about this is what is that negotiating process for these agreements so you might think OK when negotiating and of the ones that I've mentioned the
TBP is likely to conclude soonest maybe next month or this month the T so maybe this year tt after that the WTO at an early proposal in you have to get 160 other countries to agree to that might be quite slow yeah so you think OK I agree to this much in terms of cross-border data transfers in the final text that I signed with the US in 1 of these negotiations but that might not be the maximum that you have to give up because the US has a special requirement that says these trade agreements like T deep and said do not come into force that some operating firstly until they pass the US Congress at the moment there is no fast-track authority so if you US Senators 1 Committee chair you can add requirements as a condition of a passing US Congress so the home of some company can say I don't like your privacy exception take it out or I won't let this pass through the US Congress and would come into force that's the current situation because is no faster authority in the US if there is fast track authority then it takes a majority of the US Congress to reopen the text of a trade agreement which is actually happened to Korea Korea negotiated US free trade agreement there was fast track it went to the US Congress a majority of Congress said we don't think it allows us to export enough cars to Korea and we're not going to pass the text reopened it allow more American cars to be sold in Korea and only then will we pass it and it comes into force so even with fast-track authority if it's something that a majority of the US Congress once you can still have a reopened to give extra so you give this
much in the negotiations and sign you give this much extra to go through the US Congress but that's not the last stage there is another stage of negotiations called certification where the US says even though it's passed the US Congress before I allow it to come into
force I have to be satisfied with your implementation you the European Union so you the European Union must show me your proposed laws to implement tesa 42 so translatable into English send them to the US and then negotiate on your own in domestic implementing laws another 10 rounds 2 years until the US is satisfied with your implementing laws
yeah what does this mean well for some countries like Peru this has meant that in practice the US government draft the implementing law send it to the pre parliament and is positive as is without any changes and the Peruvian parliament says OK we passed with no changes please let us please that are free trade agreement come into force In the case of Australia astray had to agree to longer stronger copyright in its US free trade agreement its own government studies that this was not good for straight consumers because Australia is a net importer of intellectual property doesn't have a Hollywood industry doesn't have a lot of book publishers
they really did not want to extend copyright protection they were forced to in the U. S. free trade agreement so in the implementing law they thought
OK let's have a nice broad exception to
these new copyright laws to try and safeguard some space for consumers and innovators and so on the so that was the law that passed to implemented the US free trade agreement the US looked at it and said this is unacceptable your copyright exception is too good go back and do it again and are your copyright exceptions so the stratum parliamentary committee had to have emergency hearings overnight draft a new version that was narrower and then pass that new narrower vision so the narrow exception to copyright not as good for consumers was acceptable to the US but has proven to be unusable and has not been able to be changed since that US free trade agreement came into force so why is this possible it's possible because in these trade agreements when the country's can't agree which is often they choose a deliberately ambiguous word that each side can go away and interpret the way they want for example they say let's have a reasonable patent term extension How much longer monopolies that the US might think 5 years a straighter might think 1 year we each go away and interpreted differently in our own countries but in the certification process the US right so the implementing law for you and removes that flexibility so it pushes it to the 5 years at extra
patent monopoly on medicines instead of the 1 year that you thought you had as the flexibility by keeping a vague term like reasonable in the actual text of the free trade agreement the 2nd thing they do in this
process is they add extra requirements that are not in the signed text safety deep what he said so something that was proposed in the negotiations rejected not in the signed text they bring it back and certification and this is what happened to Guatemala Paul country in Central America the U S a proposed an extra 3 a monopoly on medicines in the negotiations the Central American countries and North it was rejected not in the final text In the certification process the US sent to Guatemala give me that 3 year monopoly on medicines even though it's not a legal requirement in the free trade agreement otherwise we would let it come into force and Guatemala's clothing cannot go to the US with 0 tariffs 0 Texas since they're very dependent on the US market they didn't have any choice so in this certification process who can make these extra demands OK you think the US Trade Ministry right the executive branch of government the US Trade Representative's office sure also the US Congress they have a laundry list of extra things they would like the European Union to give but not just the executive branch of government and the Congress we we have and these reports which showed that even 1 US company can make demands of
acidification process and this happened to the Dominican Republic in the U. S. free trade agreement it Chevron didn't like a particular law in the Dominican Republic the law was legal under the free trade agreement no problem completely fine politically very popular and sensitive in the Dominican Republic but Chevron didn't like it so they sent to the US government we want this law repealed in the certification process even though it is legal under the trade agreement the US government said sure Chevron whatever you want turned around the Dominican Republic instead repeal the law the Dominican Republic had no choice again they needed their exports to go to the US with no taxes and so they repealed the law even though was legal under the free trade agreement and shortly after the free trade agreement came into force and they could export to the US so that is the joy of certification that you have to look forward to with T tip and he said after it signed and after goes through the US Congress so you give up this much in the negotiating text on cross-border data transfers you think a it's tough but I can live with it I got a slight privacy exception you give up
more to get through the US Congress and then you give up more in the certification process How much more but you don't know until it happens so the question is other costs with the benefits and the been various studies about say 40 tip how much the European Union could benefit them is the other studies that say once a factory and that is not full employment actually a loss for Europe and both sides the tariffs alone so where the real extra gains in TT for example that might outweigh the costs of something like this if you think the privacy is important so the next session that is here in this room straight after this will look into more detail with the new proposed EU privacy directives that a prediction directives on net neutrality the impacts of these trade agreements and neutrality the impacts of these trade agreements on copyright the impacts of these trade agreements on actor because actor comeback extreme forcible and even stronger so these trade agreements are away or some of them are a way of bringing back the actor to life in a stronger way than it was the 1st time around thank you if thank so senators mentioned that in the panel and to this and you may get some of your questions answered the questions right now they don't test the because some questions I guess what I wanna know is and there's a room full of people here and I don't know if if it's that it is not an
interesting topic to early you know when it when it how how can we like it real people to actually care about these things because otherwise it's going to be these government there like talking to each other and then kind of messing about you know the world I mean I wanted it yes screw it up for everybody how how we how we get involved ahead we give you the characters so trade agreements do
seem quite like technical in esoteric when you look at the provisions I put up using what are they talking about even as the trade I read them and re read them and that is a new trick every time but when it comes down to it these are affecting things that people seem to care
a lot about in say Europe for example thanks to Edward Snowden we know that the NSA spying 1 of the ways the NSA was doing this was it was walking into the service in the US and downloading your dad so if you have to freely allow cross-border data transfers to the US where we know the NSA is allowed to walk in and download all your data does have a privacy implication for you so all the people who were concerned about Snowden they should be concerned about these agreements legally locking in the ability of the NSA to spy on you in 1 of the many ways they do for those who were involved in the and the actor campaign see the existence of this vector come back with a vengeance expect times fall in terms of how much worse so you know why you're worried about actor this is was an actor I'm especially for some of the agreements more than others and I mean in other fields beyond kind of the digital environment these trade agreements have indeed take big impact on everyday life so on that accession was a talk about copyright in some countries where the copyright owners life plus 50 years which is what the world trade organization requires the US bumps that up to 70 95 120 years before you can legally photocopy textbook translated adapted into a play on the medicines fields they extend the patent monopoly on medicines keeping the prices are unaffordable for longer but so it also reaches
into the environment make such a loss of talking about a bit about invested state dispute-settlement which is very controversial in teaching there's been a lot of cases which have struck down environmental measures health measures where you and then a dangerous chemical where you try to stop a company polluting so these are things that can affect people's everyday life the cost of medicines the cost of textbooks your ability to have a clean environment in Germany the Vattenfall cases where you close your nuclear power phase-out uniquely power after Fukushima and also the first one about coal-fired
power stations so I think they were quite controversial in Germany these are also implicated in these trade agreements as will talk about more in the next sections so for most people they have some impact on the daily life and we haven't even started talking about subsidies to your rail service that goes internationally that could be a legal entity to some so the like subsidized trains that go to other countries you may have a problem on
so there's these kinds of provisions in these trade agreements that can affect the ordinary people I thank you I um
so you said this is factor that's in in a in a stronger form and is if we get people excited about this and to oppose a bill be another acronym coming along in a couple of years and another 1 I think the core problem we're seeing here is that these are not democratic processes these being of negotiated in secret uh and how do we address this adults Quorra to say you
cannot do this ECU you can't go and how this non democratic process how do we changes course we will have to keep fighting armor 1 the 1 agreement after another so this is a
good question because usually the idea and that comes from the trade negotiators is we have to negotiate these things in secret it's like playing cards you can show your hand otherwise the whole thing falls apart but 1st start this argument doesn't work because the same issues have been negotiated publicly
successfully so those of you who followed the treaty for the blind at the World Intellectual Property Organization that was negotiated you style which means it and use like me could be in the room during negotiations watch the whole thing make
statements see the negotiating text they even broadcast on video stream when they had breakout groups of negotiations and they concluded same issue
intellectual property same she was actor has nothing inherent about intellectual property that some secret nuclear negotiations that have to be done secretly so you can say the same thing about trade agreements so the world trade organization is not right but they do release the negotiating text every few months and you can see the brackets with has been no agreement then you can go to your government say actually what all facing here is not good and let me tell you why and how do we do to influence them the Free Trade Agreement of the Americas is a famous example on which was all of North Central and South America except the Cuba it was negotiated for number of years in secret eventually the text was released the and when they saw what was in it there was mass opposition and they couldn't conclude and so when the US Trade Minister the 1 before this 1 was asked why he doesn't make the current negotiations the Trans Pacific Partnership Agreement more transparent he said we tried that with the Free Trade Agreement Americans and it didn't work because people opposed to when they knew what was in it so Senator Elizabeth Warren in the US you know the famous 1 fights the consumer rights said you know if people would be opposed to an agreement when they saw it then agreement should not become a all something wrong with it if it can't survive sunlight and public scrutiny because normally in a lot of countries if you're making laws of privacy or intellectual property you make them in public the proposal is public everybody can comment you can weigh in with your local parliamentarian whatever and that's the process of making the laws but this is backed off secret lawmaking that ties the hands of governments in
fields where normally they would be free to choose what they want to do and so some governments have been elected and specifically on a platform this was in New Zealand and the Labour Party government came in saying we promise to have more New Zealand made programs on TV because with them US-made programs for example they cover the cost of production the US by selling to the coming under people in the US 100 million by the time they exported to New Zealand they can export very cheaply because they've already covered the cost of production so the rise in New Zealand cheaper than a locally made drama or soap opera or documentary so a lot of countries more countries find they can't keep their local programs alive unless they have a requirement on television radio to have 5 hours a day locally made programs all local seniors local musicians but this local content requirement was given away by the previous government in the WTO negotiations and locked away so when the Labour Party came into New Zealand they said right we can implement this local content and the and their trade officials said you can't it's been given away in a trade agreement and they commissioned a legal opinion about 4 different ways they could try and do it you know soft incentives all illegal so some people say well that removes you know the whole process of a democratically elected government doing what they were elected to do a new then becomes examples in Bolivia Ecuador Venezuela and so on with the left-wing government spending trying to reverse now being sued Sandye's Dias so there have been widespread critiques of this process it doesn't have to be this way it they have
negotiated agreements they concluded that of each year 1 in Bali last year even though the you could see the text every few months the negotiating text was released so if there's no reason they have to be negotiated in secret but it does help them conclude an
agreement that has backed all law-making without the normal scrutiny and transparency that you would have in many of your countries but 0 by the way on TT panties said there are existing campaigns so I'm sure you all know that he did once so you don't have to start from scratch Conti so there are also but less well established and and so if you can find a month ago we can always put me in touch thanks in
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Formale Metadaten

Titel US attacks on data privacy through trade agreements
Serientitel re:publica 2015
Teil 174
Anzahl der Teile 177
Autor Smith, Sanya
Lizenz CC-Namensnennung - Weitergabe unter gleichen Bedingungen 3.0 Deutschland:
Sie dürfen das Werk bzw. den Inhalt zu jedem legalen Zweck nutzen, verändern und in unveränderter oder veränderter Form vervielfältigen, verbreiten und öffentlich zugänglich machen, sofern Sie den Namen des Autors/Rechteinhabers in der von ihm festgelegten Weise nennen und das Werk bzw. diesen Inhalt auch in veränderter Form nur unter den Bedingungen dieser Lizenz weitergeben.
DOI 10.5446/31917
Herausgeber re:publica
Erscheinungsjahr 2015
Sprache Englisch
Produktionsort Berlin

Inhaltliche Metadaten

Fachgebiet Informatik
Abstract Even after Edward Snowden's revelations, the US government is attempting to lock in the NSA's ability to spy on citizens' data from up to 159 other countries through current negotiations for legally enforceable trade agreements: TTIP, TiSA, TPP, ...

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