The World Trade Organization Sets its Eyes on the Internet

This week, EFF has been at the World Trade Organization (WTO)’s annual Public Forum. Best known to the general public as the locus of anti-globalization protests at its 1999 Ministerial Conference, it’s ironic that the WTO is today the most open and transparent of trade negotiation bodies—an honor it holds mainly because of how closed and opaque the trade negotiations conducted outside the WTO are, such as the Trans-Pacific Partnership (TPP), or on its margins, the Trade in Services Agreement (TISA).

This year’s Public Forum, although notionally focusing on inclusive trade, has featured unprecedented interest in digital trade, with dozens of sessions dealing with this topic. Just a few of them, including the workshop “Boundaries and Best Practices for Inclusive Digital Trade” organized by EFF, have been summarized by the Geneva Internet Platform (you can also read slides from some of our workshop’s presentations below).

This explosion of interest in digital trade represents widespread enthusiasm from WTO members (which are 164 countries of the world) for the organization to take up an expanded work program on e-commerce. Currently this work program at the WTO only contains one item: a moratorium on customs duties on electronic transmissions. But in a “non-paper” dated July 1 this year, the United States proposed an expanded work program that contains a raft of new measures, some copied and pasted straight out of TISA and the TPP—including a provision on encryption that would allow law enforcement backdoors, a ban on local hosting mandates, and a ban on mandates to disclose source code.

In a bilateral discussion with EFF, a member of the Office of the United States Trade Representative acknowledged that this document represents an ambitious ask, and that WTO members will likely focus on a narrower set of objectives to facilitate global e-commerce. Even then it will probably take more than a year even to establish the content of the work program, let alone to produce any deliverables from it. By that time, it is intended that the more ambitious (but less inclusive) TISA will be done and dusted, since the agreement is slated for completion by December this year (though that deadline will probably slip, just as the TPP’s completion deadline did).

Although we have significant reservations about the WTO accepting a new digital trade agenda, several of the panelists at EFF’s workshop pointed out that it would be difficult to completely insulate the Internet from the WTO’s normative work. Panelist Andrew Crosby from the International Centre for Trade and Sustainable Development (ICTSD) explained that this flows from the dependence of global trade flows on many “behind the border” issues, including domestic Internet regulations and standards. Fellow panelist Nick Ashton-Hart from the Geneva Centre for Security Policy went further, arguing out that the Internet had already been covered by the WTO since its General Agreement on Trade in Services (GATS) in 1995 (though Jean-Baptiste Velut from Université Sorbonne Nouvelle countered that there are certainly many aspects of the Internet that had not appeared in trade agreements until the more recent TPP and TISA era).

If a new WTO work program on digital trade is established, there is the possibility that new modalities for the negotiations could be developed. In particular, there were many sessions at the WTO Public Forum at which panelists (including American University’s Sean Flynn who spoke at EFF’s workshop) emphasized that digital issues need to be treated differently from conventional trade issues such as quotas and tariffs, and that users would need to be deeply involved in the process from the outset, to avoid a repetition of previous failed agreements such as ACTA (and perhaps soon, the TPP). EFF offered participants a preview of three criteria that we suggest can be used as a guidepost to the design of processes that meaningfully include users, and we’ll be formally unveiling those criteria in a new infographic on this website next week.

We view these developments at the WTO with interest and with some concern. The track record of trade agreements regulating the Internet has been extremely poor, due largely to the lack of transparency and user participation in the development of Internet-related trade rules. If there was any comfort to be gained from the discussions that took place this week, it was an apparently broad consensus that Internet-related trade rules can no longer be made in this closed and opaque fashion, and that if any new work program that impacts the Internet is to be adopted by the WTO, it will have to be with the much more integral involvement of affected stakeholders, most importantly Internet users.