Why the US and EU are Failing to Set Information Free

The internet promotes educational, technological, and scientific progress, but governments sometimes choose to control the flow of information for national security reasons, or to protect privacy or intellectual property. This column highlights the use of trade rules to regulate the flow of information, and describes how the EU, the US, and their negotiating partners have been unable to find common ground on these issues. Trade agreements have yet to set information free, and may in fact be making it less free.

Tim Berners-Lee, the architect of the World Wide Web, taught us that the internet we have is a function of the choices we (users, companies, policymakers, etc.) make about information flows. For example, in 1995, Berners-Lee chose not to patent his work on the World Wide Web because he feared patenting it could limit its universality and openness. He continues to advocate this. In March 2014, he called for an online bill of rights and created a new organisation to ensure that the web would remain the “web we want” – open, free, and neutral. With his actions, Tim Berners-Lee has shown us that setting information free requires effort (Mullin 2012, Pilkington 2013, Kiss 2014).

Policymakers also must make tough choices about information flows. On the one hand, they want to encourage the free flow of information in the interests of educational, technological, and scientific progress. On the other hand, they need to control and at times limit the free flow of information, in order to achieve important policy objectives including maintaining internet resiliency; preventing spam, piracy, and hacking; protecting national security and privacy; and protecting intellectual property. They struggle to balance – let alone achieve – these goals.₁

The impact of information flows

In my research, I examine how the US and the EU tried to use trade policies to advance the free flow of information while simultaneously taking other steps to control or block information flows. Policymakers turned to trade rules because information often flows across borders; moreover trade agreements are binding and enforceable.

However, the free flow of information affects many other policies beyond trade, including human rights. In 1946, the UN General Assembly adopted Resolution 59 (I); members stated that “freedom of information is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated.” Under international human rights law, states are obligated to take practical steps to give effect to the right of freedom of information, but may also restrict freedom of information in order to respect the rights or reputations of others, protect national security and public order, and protect public health or morals (Mendel undated).₂ Hence, the free flow of information is also a security, trust, foreign policy, and governance issue.₃

Information is also a global public good that governments should provide and regulate effectively. Because the benefits of a public good are available to everyone (no one can be excluded), private companies and individuals often need incentives to provide new information. Moreover, everyone is hurt when individuals, companies or governments hoard or hide information (Maskus and Reichman 2004: 284–285). The internet has made it cheaper and easier to trade information (such as news, data, and entertainment), to collaborate and work across borders, and to fund and sell goods and services across borders (McKinsey 2014). If governments and their citizens could devise shared rules to encourage the free flow of information, more people would have greater access to information, and more information would be created and exchanged (McKinsey 2014, Tietje 2011).

Regulating information flows through trade agreements

Since the first years of the 21st century, business leaders, policymakers, and activists have tried to create shared principles to encourage information flows. They began by developing principles to guide their behaviour at the OECD, the Asia-Pacific Economic Cooperation forum, and other venues. But these principles are voluntary and not universal. Meanwhile, some academics and companies began pushing for very specific language in trade agreements; they wanted to promote the free flow of information and limit trade barriers to the free flow of information (Kommerskollegium 2014).

Today, data flow issues are key components of 3 ongoing negotiations:

• The US and the 27 nations of the EU have been negotiating the Transatlantic Trade and Investment Partnership.
• The US and 10 other nations bordering the Pacific have been negotiating the Transpacific Partnership.
• Some 50 members of the WTO (including the 27 EU nations) are negotiating the Trade in Services Agreement of the WTO.

Disagreements over internet policy

However, many governments have not responded positively to US and EU efforts to set information free. Officials and citizens from these governments worry about their ability to control or limit information flows as well as their dependence on US companies to provide web services (which often must comply with US rules on privacy and national security). Some scholars note that the US/EU approach appeared hypocritical and inconsistent. The US controls the free flow of information to protect intellectual property and national security but labels it protectionist when others do so. The EU controls the free flow of information to protect intellectual property, to protect privacy, and to prevent holocaust denial and hate speech (Aaronson and Townes 2012, Aaronson and Maxim 2013). Moreover, neither the US nor the EU link policies to promote the free flow of information with policies to advance Internet freedom; both seemed to develop policies in bureaucratic silos, without weighing how such policies might affect the Internet as a whole. In June 2013, after media outlets publicised the revelations of former US National Security Administration (NSA) analyst Edward Snowden (Davies 2014), Internet activists began to point out the contradictions in US and EU policies.

As of this writing, the EU, the US, and their negotiating partners have been unable to find common ground regarding how to promote the free flow of information, limit information flows in the name of national security, and protect privacy. The US and the EU are also divided over:

• When to restrict (or censor) information,
• Whether localisation of servers is protectionism, and
• Whether US and EU firms should export internet related technologies (from servers to malware) that could be used to undermine the human right of information online.

The impact of Snowden’s NSA revelations

But in 2013, we learned that the NSA (and similar agencies in several other countries) had taken steps that limited, hijacked, or transformed information flows. Some states – including several EU countries – found in the Snowden revelations an opportunity to wrest greater market share from US internet dominance. Hence, although these states generally support free flow, they also adopted policies that some labelled ‘data protectionist’ or ‘data nationalism’. Consequently, I argue that trade agreements have yet to set information free, and may in fact be making it less free (Aaronson and Townes 2012).

Policy recommendations

Nonetheless, US and EU trade policies are a work in progress – you and I can still have significant influence over their direction. We can encourage trade officials to think more holistically about the balance between the free flow of information and the need to control information flows in the name of privacy and national security. Policymakers should begin by developing shared principles for maintaining the One Global Internet and to delineate steps to take when countries do not live up to these principles. Second, governments should include language in trade agreements that relate to the regulatory context in which the internet functions, including free expression, fair use, the rule of law, net neutrality, and due process. Finally, when they negotiate trade agreements, policymakers should use language to encourage interoperability. By so doing, they can balance national norms and global market demands, and thereby better encourage information flow.

References

•Aaronson, S A and M Townes (2012), “Can Trade Policy Set Information Free? Trade Agreements, Internet Governance, and Internet Freedom”, Project on Trade Agreements and Internet Governance.
•Aaronson, S A and R Maxim (2013), “Data Protection and Digital Trade in the Wake of the NSA Revelations”, Intereconomics: Review of European Economic Policy, 48(5): 281–285.
•Davies, S (ed.) (2014), “A Crisis of Accountability: A global analysis of the impact of the Snowden revelations”, The Privacy Surgeon, June.
•Kiss, J (2014), “An online Magna Carta: Berners-Lee calls for bill of rights for web”, The Guardian, 12 March.
•Kommerskollegium (2014), “No Transfer, No Trade – the Importance of Cross-Border Data Transfers for Companies Based in Sweden”, January.
•Maskus, K and J Reichman (2004), “The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods”, Journal of International Economic Law, 7(2): 279–320.
•McKinsey (2014), Global flows in a digital age, April.
•Mendel, T (undated) “Freedom of Information as an Internationally Protected Human Right”.
•Mullin, J (2012), “Tim Berners-Lee Takes the Stand to Keep the Web Free”, Wired, 8 February.
•Pilkington, E (2013), “Tim Berners-Lee: Spies’ cracking of encryption undermines the web”, The Guardian, 2 December.
•Tietje, C (2011), “Global Information Law – Some Systemic Thoughts”, Beiträge zum Transnationalen Wirtschaftsrecht, Heft 107, April.

Footnotes

1 Tietje (2011) notes that this challenge is not new; nations had to collaborate to deal with Morse code, the telegraph, and the first transatlantic cable from 1858–1866.

2 The limitations on freedom of expression are spelled out in Article 19 (3) of the International Covenant on Civil and Political Rights of the Universal Declaration of Human Rights. See Article 19, “Limitations”.

3 Tim Berners-Lee has outlined the security risks to the internet.

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