The Rise and Fall of TTIP, As Told in 51 Updates

This year will be make or break for the Transatlantic Trade and Investment Partnership (TTIP).  It is already years behind its original, hopelessly-optimistic schedule, and is now running into immovable political events in the form of the US Presidential elections, and the general elections in Germany.  If TTIP isn't wrapped up this year, it is probably dead until whenever the next attempt to push through such a global takeover of democracy begins, as it surely will.

From July 2013 until April 2015 I wrote a series of irregular TTIP Updates, which charted the latest developments of the negotiations.  They form the most detailed description of how TTIP emerged and developed during the first two years of the negotiations.  Although superseded by more recent events, they nonetheless offer a historical record of what happened during that time, and may help people understand the strange beast that is TTIP somewhat better.

These Updates were published on Computerworld UK, which has a Web page with consolidated links to the updates.  Unfortunately, re-designs and other changes at the site have led to link-rot setting in.  Although the Computerworld UK page remains the main site for these Updates, I thought it would be useful - and prudent - to offer a mirror here on Open....

Below I have linked to the mirrored Updates, which appear as separate posts on the present blog.  Since I can't extract the final versions of the columns from the Computerworld UK site, I've used my local files.  These may differ slightly from the final, published versions - if there's anything major, I'll try to edit them at some stage.  Similarly, there may be odd typos that I have missed; please feel free to point them out in the comments so that I can fix them.

I should also warn readers that there are many broken links, especially to other Computerworld UK columns, whose URLs have all changed.  If I have time, I will try to fix the more important ones of these, but given that I probably won't have time, please don't hold your breath...

Although I am unlikely to write any more updates, I am most certainly going to keep covering TTIP during this crucial year - indeed, I intend to up my coverage considerably to reflect the crucial stage of the negotiations we have now reached.  I've already written a couple of big features on the topic for Ars Technica UK, which serve as introductions to this whole area for those coming to it for the first time, and as summaries of what has happened for those who are already familiar with the main issues.

The first, entitled "TTIP explained: The secretive US-EU treaty that undermines democracy", is a 6000-word backgrounder to the whole area.  The more recent "How EU nations are being sued for billions by foreign companies in secret tribunals" concentrates on perhaps the most controversial - and dangerous - aspect of TTIP, the so-called "investor-state dispute settlement" (ISDS) mechanism that essentially places companies above national laws by giving them special tribunals in which they can sue governments for alleged "indirect expropriation" of future profits.

If you don't know about this aspect - or about TTIP in general - this is a good place to start.  Once you find out what is proposed for TTIP, I am sure that you will be outraged, and hope that you will join me in trying to do something about it.

TTIP Update l

A review of the few details that emerged from the first round of negotiations, including an attempt by the European Commission to convince us that TAFTA/TTIP is not another ACTA.

TTIP Update ll

An introduction to investor-state dispute resolution (ISDS), and why its presence in TAFTA/TTIP is a grave threat to European sovereignty, open source and the Internet.

TTIP Update III

A point-by-point rebuttal of a document in which the European Commission tries to prove that the presence of investor-state dispute settlement (ISDS) in TTIP is not a problem.

TTIP Update IV

An exploration of how the public is kept in the dark over TAFTA/TTIP, and the dangerous asymmetries it contains.

TTIP Update V

A discussion of a major Wikileaks document discussing intellectual monopolies in TAFTA/TTIP’s sister agreement, TPP, and what it means for TTIP.

TTIP Update VI

An analysis of a leaked document outlining the European Commission’s communication strategy for TAFTA/TTIP, and a look at how disastrous other trade agreements like NAFTA and KORUS have been.

TTIP Update VII

Yet another, increasingly desperate attempt to justify the unjustifiable inclusion of ISDS in TAFTA/TTIP, and why the arguments simply don’t stand up to scrutiny.

TTIP Update VIII

Lifting the lid on how a new transatlantic “TTIP Regulatory Council” would bring in massive deregulation, with a consequent lowering of food, health and environmental standards in Europe.

TTIP Update IX

How an astonishing attack on Corporate Europe Observatory reveals a floundering European Commission increasingly concerned that it is losing control of the TAFTA/TTIP debate.

TTIP Update X

Another (failed) attack, this time by Karel De Gucht, the EU's trade commissioner, who laughably tries to claim that there is no lack of transparency in the TAFTA negotiations, and that it’s worth accepting the threats posed by ISDS.

TTIP Update XI

So it looks like TAFTA/TTIP is, in fact, ACTA by the backdoor – despite what Mr De Gucht has said...

TTIP Update XII

Why the US Fast Track bill guarantees that TAFTA's ISDS chapter will be one-sided and unfair for EU companies.

TTIP Update XIII

Big news: EU pulls ISDS to allow unprecedented public consultation; UK report says ISDS in TTIP would bring little or no benefit.

TTIP Update XIV

What new CETA leaks tell us about EU's plans to re-vamp ISDS - and why they aren’t enough to protect European sovereignty or democracy.

TTIP Update XV

There are growing calls to keep data protection out of TAFTA/TTIP – and to reject the agreement if the privacy of European citizens is not adequately protected.

TTIP Update XVI

More details emerge on ISDS provisions, and a rather ironic call for transparency from the paranoically opaque USTR.

TTIP Update XVII

Bad news, lots of leaks, plus debunking another misleading European Commission document.

TTIP Update XVIII

New leaks, new Web sites, a hidden threat from the “most-favoured nation” approach, and an astonishing claim that Germany wants ISDS out of TTIP.

TTIP Update XIX

A newly-discovered CETA bug shows why the European Commission needs transparency; also, why regulatory data must be opendata

TTIP Update XX

All about transparency in TTIP - or, rather, the almost complete lack of it; includes details of three phantom EU consultations I never heard about, and few took part in.

TTIP Update XXI

Why that best-case “ €119 bn” GDP boost to EU economy equates to just an extra cup of coffee every week.

TTIP Update XXII

ISDS attacks on EU nations have begun – and that’s before TTIP would make it even more likely and costly.

TTIP Update XXIII

Why the European Commission’s consultation on ISDS is a sham, and fails to provide the promised "draft".

TTIP Update XXIV

Looking at important research that finds even more holes in the European Commission’s TTIP justifications.

TTIP Update XXV

A report on a desperate high-level attempt by the US and EU to counter German scepticism, plus the video & slides of my re:publica 14 talk about why TTIP's numbers just don’t add up.

 TTIP Update XXVI

An action-packed update that includes fracking, water cannons and cosmetics – but still very little transparency.

TTIP Update XXVII

In which the European Commission’s misleading use of figures from its economic study is criticised, as is the study itself.

TTIP Update XXVIII

A major leak of EU services offer; an introduction to the top-secret TISA; and how the US it trying to buy love for TAFTA/TTIP.

TTIP Update XXIX

More on the secretive TISA negotiations; insight into the US's anti-transparency plans; and how the public is too stupid to understand TTIP.

TTIP Update XXX

More on the huge dangers of ISDS - and lots of help for responding to the European Commission’s travesty of a consultation on the same topic.

TTIP Update XXXI

Designed to be the final information on responding to the European Commission’s ISDS consultation, but we now learn the deadline has been extended because of huge numbers replying.

TTIP Update XXXII

A couple of interesting leaks, and a round-up of how TTIP is starting to enter the mainstream.

TTIP Update XXXIII

In the wake of the incredible 150,000 responses to the ISDS consultation, the revolt against this idea spreads to the highest reaches of the EU.

TTIP Update XXXIV

ISDS drama from Germany again, and how mutual recognition will undermine EU food and animal protection standards.

TTIP Update XXXV

The shape of multi-billion-pound ISDS lawsuits to come; a leak of the complete CETA agreement; and the threats lurking in US "certification".

TTIP Update XXXVI

Lots of news about CETA and ISDS, plus another slap in the face of the EU public.

TTIP Update XXXVII

Lots about CETA, and exciting plans for a European Citizens’ Initiative to let people make their views on TTIP known
TTIP Update XXXVIII

Slaps in the face of the EU public: a refusal to allow the ECI, and a "celebration" of CETA. Plus bad signs from the grilling of the new EU trade commissioner.

TTIP Update XXXIX

Nearly 50% of the claimed trade boost consists of swapping cars across the Atlantic.

TTIP Update XL

Rumours swirl that ISDS will come out of TTIP; even if it does, it's still in CETA and the new EU-Singapore free trade agreements.

TTIP Update XLI

Yet more sound and fury on the topic of ISDS in TTIP, but things remain as clear as mud.

TTIP Update XLII

Devasting new independent economic analysis of TTIP's likely effects on EU shows net losses in terms of GDP and 600,000 job losses.

TTIP Update XLIII

The problem of data flows, and why CETA's ISDS is a disaster.

TTIP Update XLIV

ISDS dangers in CETA and TTIP - and in the EU Singapore FTA.

TTIP Update XLV

They want "facts" and "hard evidence" about TTIP? Here they are...

TTIP Update XLVI

There are *already* more than €30 billion worth of ISDS claims against EU nations.

TTIP Update XLVII

The belated provision of improved transparency shows that public advocacy works.

TTIP Update XLVIII

The people have spoken: ISDS must go - no ifs, buts or maybes.

TTIP Update XLIX

New leaks show how transatlantic regulatory bodies will undermine EU and national sovereignty.

TTIP Update L
Should the views of a three-person tribunal take precedence over society's wishes?

TTIP Update LI

As resistance grows, TTIP is increasingly in trouble.

UK Consultation on Draft Investigatory Bill Closes Monday: Please Write

The Joint Committee on the Draft Investigatory Powers Bill invites any "interested individuals and organisations" to submit evidence to this inquiry.  Written evidence should arrive no later than 21 December 2015.   Here are the four main questions:

Are the powers sought necessary?

Has the case been made, both for the new powers and for the restated and clarified existing powers?

Are the powers sought legal?

Are the powers compatible with the Human Rights Act and the ECHR? Is the requirement that they be exercised only when necessary and proportionate fully addressed? Are they sufficiently clear and accessible on the face of the draft Bill? Is the legal framework such that CSPs (especially those based abroad) will be persuaded to comply? Are concerns around accessing journalists’, legally privileged and MPs' communications sufficiently addressed?

Are the powers sought workable and carefully defined?

Are the technological definitions accurate and meaningful (e.g. content vs communications data, internet connection records etc.)? Does the draft Bill adequately explain the types of activity that could be undertaken under these powers? Is the wording of the powers sustainable in the light of rapidly evolving technologies and user behaviours? Overall is the Bill future-proofed as it stands?

Are the powers sought sufficiently supervised?

Is the authorisation process appropriate? Will the oversight bodies be able adequately to scrutinise their operation? What ability will Parliament and the public have to check and raise concerns about the use of these powers?

Weirdly, you are not allowed to publish your submission until you are given permission:

Evidence which is accepted by the Committee may be published online at any stage; when it is so published it becomes subject to parliamentary copyright and is protected by parliamentary privilege. Submissions which have been previously published will not be accepted as evidence. Once you have received acknowledgement that the evidence has been accepted you will receive a further email, and at this point you may publicise or publish your evidence yourself. In doing so you must indicate that it was prepared for the Committee, and you should be aware that your publication or re-publication of your evidence may not be protected by parliamentary privilege.

So, let me give a summary of my answers to the questions:

No, the powers are not necessary, because they are based on the idea that mass surveillance works.  It doesn't.

No, the powers are not legal: both the Court of Justice of the European Union and the European Court of Human Rights have said mass surveillance is illegal. 

No, they are not workable, because the idea of an Internet Connection Record makes no sense. UK's biggest telecoms confirmed the plan is unworkable.

No, the powers are not supervised because the "double-lock" authorisation is a sham: the judge does not check whether the authorisation was justified, only whether the procedure was correctly followed.

Also worth noting that the distinction between "content" and "communications data" is meaningless: metadata is actually more revealing than content, because it is already parsed in a computer-readable form that allows it to be combined with billions of other pieces of metadata.

Creating huge databases of metadata will create huge honeypots that will be irresistible to criminals and foreign governments.  Stealing the metadata will give them valuable information that can be used for identity theft or blackmail.

Finally, it is worth pointing out that the whole idea of "equipment interference" is really stupid.  If agencies are given permission to break into people's systems, they can plant anything there, and make changes to things like browser histories.  As a result, any computer evidence in a trial is suspect, since it could easily have been planted using "equipment interference" without anyone noticing.  As computer-based evidence becomes more important, "equipment interference" would seriously undermine the UK's legal system.  It should be the very rare exception, not part of a standard toolset.

This is a really important consultation: please respond by Monday.

UK TTIP Debate Tomorrow: Please Contact MPs Today

It seems that there will be a rare UK debate about TTIP tomorrow.  This is a great opportunity to contact your MPs and let them know what you think.  Here's what I've just sent - you can use WritetoThem to make things easier.

I believe that the House of Commons will be debating TTIP on Thursday. I hope you are planning to be there, and might be able to convey some of my concerns about the proposed agreement.

TTIP is generally presented as being something that will boost the EU and UK economies, and provide benefits for all. In fact, the European Commission's own study shows that even under the most optimistic assumptions, the GDP gain will only be 119 billion euros. That may sound a lot, but in fact is only about 0.5% of EU GDP. Moreover, that would be after ten years of TTIP, so the extra annual GDP in this optimistic scenario is around 0.05%, which is effectively zero given the uncertainties of all econometric modelling.

Even that 0.05% annual GDP boost will probaby be very hard to achieve. According to the European Commission's own study, it is based on the assumption that only 20% of the boost will come from removing tariff barriers, which are already low between the EU and US, while 80% will come from removing non-tariff barriers (NTBs). But NTBs are essentially regulations, and are not "trade irritants" as some like to describe them, but hard-won protections for health, safety, the environment etc. Removing them would cause huge negative effects on society – none of which are included in the econometric model. In fact, *no* costs are included in the CEPR projections, which is extraordinary.

The European Commission says that regulations will be harmonised, not lowered. But that will rarely be possible. For example, for chemicals in cosmetics, the EU bans 1300 of them, while the US only bans 12. If it is infeasible to harmonise regulations, and standards will not be lowered, achieving the 80% of gains will be hard, if not impossible.

Finally, there is the issue of ISDS. No convincing argument has been offered for why this is necessary. Both the EU and US have extremely well-developed legal systems. The European Commission has been unable to cite any example where an EU company has been discriminated against in the US. Moreover, the size of the investments across the Atlantic prove that there is absolutely no problem that needs solving here: the US has invested 1.5 trillion euros in Europe, while the EU has invested 1.6 trillion euros. Businesses would not be making these massive investments if there were a problem. And for those that are chary, there is always investment insurance.

On the other hand, including ISDS in TTIP will give 19,900 US-based corporations that own more than 51,400 subsidiaries in the EU the ability to sue the EU and members states over regulations that they claim will harm their profits. And while it is true that ISDS cases cannot force governments to repeal laws, many do since the cost in terms of ISDS awards are so high: recently, an award of $50 billlion was made against Russia by an ISDS tribunal. It is clear from past experience that ISDS has a chilling effect on bringing in new laws that protect the public.

I hope these quick thoughts make clear why I am concerned about TTIP, and believe that it in its current form it will bring few, if any benefits, to the UK public, while exposing them and the EU to huge risks.  If you have time, which I fear is unlikely, I have written at greater length about TTIP in this extensive feature for Ars Technica UK.

As ever, thank you for your help.