02 January 2016

TTIP Update I

Right at the start of this year I flagged up the likelihood that hugely important trade negotations between the EU and US were likely to start later this year.  A few months later, I gave some more background to that move, as well as the text of a document calling for the participants to avoid repeating the grave mistakes of ACTA, which ultimately led to that treaty being rejected in the European Parliament on July 4 last year.

Well, things have moved on since then, and the first round of negotations for what is now being called the Transatlantic Trade and Investment Partnership has taken place.  Here's part of the press release:

“It’s been a very productive week”, said EU Chief Negotiator Ignacio Garcia-Bercero coming out of the talks. “We have been striving already for many months to prepare the ground for an ambitious trade and investment deal that will boost the transatlantic economy, delivering jobs and growth for both European and Americans. This week we have been able to take this negotiation to the next step. The main objective has been met: we had a substantive round of talks on the full range of topics that we intend to cover in this agreement. This paves the way to for a good second round of negotiations in Brussels in October.”

Working throughout the week, the negotiating groups have set out respective approaches and ambitions in as much as twenty various areas that the TTIP - the biggest bilateral trade and investment negotiation ever undertaken - is set to cover. They included: market access for agricultural and industrial goods, government procurement, investment, energy and raw materials, regulatory issues, sanitary and phytosanitary measures, services, intellectual property rights, sustainable development, small- and medium-sized enterprises, dispute settlement, competition, customs/trade facilitation, and state-owned enterprises.

Negotiators identified certain areas of convergence across various components of the negotiation and - in areas of divergence – begun to explore possibilities to bridge the gaps.

The talks have been based on a thorough review of the stakeholders views expressed to date. The negotiators met also in the middle of the week with approximately 350 stakeholders from academia, trade unions, the private sector, and non-governmental organisations to listen to formal presentations and answer questions related to the proposed agreement.

The next round of TTIP negotiations will take place during the week of 7 October in Brussels.

Rather more interesting than this press release, the European Commission has issued a document entitled "How much does the TTIP have in common with ACTA?" [.pdf].   That picks up on a question posed in the TTIP FAQ:

Will the TTIP be ACTA through the back door?

To which the answer was:

No. – the 'Anti-Counterfeiting Trade Agreement' – was intended to end the trade in counterfeited goods. It goes without saying that the position of the European Parliament – which voted against – will be fully respected. There will be no 'through the backdoor'.

That by itself was interesting, because it showed that the European Commission was at least aware that ACTA had been a disaster.  However, the latest document goes even further in trying to assuage concerns that TTIP is "ACTA by the backdoor":

In the debate around the Transatlantic Trade and Investment Partnership (TTIP), some commentators have tried to suggest that there is a conspiracy to use the negotiations to bring back parts of the Anti-Counterfeiting Trade Agreement (ACTA). Some have even claimed that TTIP will be a "super- ACTA", aimed at attacking your online freedoms. These claims are – very simply – false. Let's look at them in two parts.

The first point addresses the following question: "Will TTIP be used to bring back controversial parts of the ACTA agreement?" To which the response is:

No. ACTA was negotiated between 37 countries with the aim of reducing international violations of intellectual property rights (IPR). The EU and 22 of its Member States signed the agreement, but it was eventually rejected by the European Parliament in June 2012.

The European Commission has no intention of doing anything that runs counter to the position of the European Parliament on this issue, so there is no question of reviving ACTA through the back door.

The TTIP will be a much broader agreement covering many economic sectors. Intellectual property rights issues – such as rules on copyrights and trademarks – will only be a relatively small element of it. In fact, given that both the EU and the US already have efficient rules for protecting IPR systems, they have limited interest in strengthening their enforcement provisions.

Since the beginning of the TTIP negotiating process, it is very clear that the eventual agreement on intellectual property rights will not include elements that were controversial in the context of ACTA. For example, the ACTA provisions on IPR enforcement in the digital environment (ACTA articles 27.2 to 27.4) will not be part of the negotiations. Neither will ACTA's provisions on criminal sanctions.

The other question is "Will TTIP bring in new provisions that would restrict internet freedom?", where we find the following subsidiary issues and answers:

The discussions on electronic commerce will undermine consumer protection, including on data privacy.

This is also untrue. The EU made it very clear that its standards of data privacy protection are not up for discussion in this agreement. They will not be weakened.

Various other aspects of the digital economy will however be covered by the negotiations to make sure that the rules we have on either side of the Atlantic do not unnecessarily act as barriers to trade. That is not the same thing as undermining the online protection of internet users.

Alas, this is not really the case.  As I've discussed in previous columns, there is a very serious assault on the privacy of Europeans online, with an attempt to water down the proposed Data Protection Regulation.  Privacy is perceived by the US companies like Google, Facebook et al. as a "barriers to trade", since it stops them having their way with our data.  In this respect, TTIP could seriously undermine our privacy if it enshrines the US approach - as in "zero privacy protection" - as applying to the EU.

The other subsidiary question and answer is as follows:

The talks will weaken cybersecurity

The European Union has expressed clearly its concerns on alleged US intelligence activities and their implication for privacy and data protection at European level. We are committed to the Transatlantic Trade and Investment Partnership, but we insist – and the US has agreed – that in parallel there be work in two new EU-US working groups to analyse the oversight of intelligence activities, intelligence collection and also the question of privacy and data protection. These groups have already met and the EU expects that they will now make rapid progress. For the TTIP to be a success, we need confidence between the partners. And confidence can be only be fostered if there is a clarification of these issues of very serious concern. However, the TTIP negotiations themselves will not focus on these issues.

That inevitably implies that Europeans will be thrown to the wolves.  The separation of the discussions about spying and TTIP means the US can simply tell the EU to get knotted when it comes to complaints about the comprehensive surveillance being carried out on Europeans.  This was a major tactical error on the part of the European Commission, since its only leverage over the massive spying was TTIP, and to use the latter to pressure the US to respect local laws.  Now the EU cannot do that, so the working groups will come out with some pious platitudes that mean absolutely nothing in terms of safeguarding our online activity.

The new document concludes with another revealing section:

One last point: a more open process

The EU is committed to providing as much information as possible to the public, the media, and the many stakeholders as we proceed with the negotiations. There is more interest in this potential deal than any we have worked on before. We realise that this requires new initiatives to shed more light on what is going on throughout the negotiations. Several tools have been put in place:

Well, it would be hard to be more closed than ACTA, but nonetheless the following initiatives are all very welcome:

We have created a dedicated webpage to the TTIP negotiations. On this webpage, you can find a timeline, which details the events taking place, as well as providing overviews of the negotiating rounds.

We have also published a detailed Frequently Asked Questions page on the EU-US negotiations. This FAQ is available in all official EU languages and
gives an answer to many of the questions you may have.

Basic, but certainly useful.

The EU Commission's Trade Department now also has two dedicated Twitter accounts. One general account and one account specifically for the TTIP negotiations. The latter – @eu_ttip_team – is managed directly by negotiators and gives you a behind the scenes look at how the negotiations are progressing. We tweet in real time and give you updates on the negotiations as well as details on where to find more relevant info online. The team will also reply to your questions and comments.

That, I think, is much more important.  First, because it shows that the European Commission recognises that Twitter is one of the most important ways of communicating these days.  And secondly, it accepts that it is a medium for receiving questions and comments - that is, a two-way channel.

All-in-all, the appearance of this document from the European Commission is extremely welcome.  It signals a new awareness of how much the public cares about key areas affecting the Internet, and for the need to explain policies, rather than simply to impose them. 

Of course, these are still baby steps.  What we really need are for all tabled documents - which, by definition, are no longer secret - to be made available to the public immediately.  Although that might seem unlikely, the victory over ACTA, and the fact that the European Commission felt obliged to release the current explanation that TTIP is not an attempt to bring ACTA in by the back door, shows that public pressure does work.  In future updates, I will be explaining where in particular we need to apply that pressure - and how we might do it most effectively.

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