WG2: Rule of Law Blog Series

Blog #5: Are Trade Agreements an appropriate venue for promoting the Rule of Law Online?

In the fifth installment of the FOC Working Group 2 (WG 2) blog series, WG member, Susan Ariel Aaronson, Research Professor at The George Washington University’s Elliott School of International Affairs and the former Minerva Chair at the National War College, discusses whether trade agreements could provide an impetus to the development of globally coordinated policies on a wide range of global issues from privacy to cyber security that affect cross-border information flows.

Throughout this blog series, WG members will analyse current scenarios where the application of the rule of law online fails to promote human rights online, and highlight areas where further research should be undertaken to further strengthen rule of law principles and practices. To read previous blog posts in the series, follow this link.

The Internet and Jurisdiction Project, an NGO working on Internet and Jurisdiction issues, recently summed up the basic governance dilemma posed by the Internet.  On the one hand, policymakers must ‘preserve the global nature of cyberspace while respecting national laws.’ On the other hand, they must ‘fight misuses and abuses of the Internet, while ensuring the protection of human rights. (De la Chapelle and Fehlinger 2016, 1). As the quote reveals, global Internet governance is a work in progress.  In almost every state, policymakers struggle to balance longstanding national norms for the rule of law with developing shared norms for cross-border information flows, related to issues like surveillance, privacy, censorship and filtering.    

Increasingly, policymakers rely on trade agreements to help them achieve this delicate balance between  national norms and rules and global information flows. Until recently, the United States, Canada and the European Union only included non-binding language related to crossborder information flows in trade agreements. But in October 2015, after seven years of negotiation, twelve countries including the US, Australia, Canada, and Mexico found common ground on binding language in the Trans-Pacific Partnership (TPP) – which now states that “each party shall allow the cross-border transfer of information by electronic means.” This also means that TPP parties can only impose conditions or restrictions on the cross-border transfer of information if those measures are not discriminatory or a disguised restriction on trade – which means, theoretically, one TPP party could use the agreement to challenge censorship or filtering in other countries signed up to TPP. This is potentially very significant. TPP signatories comprise 25% of all net users. If the agreement goes into effect, this binding language could provide an impetus to the development of globally coordinated policies on a wide range of global issues from privacy to cyber security that bedevil cross-border information flows. I believe that a system of shared rules could also build greater trust.

However, there are reasons why trade agreements might not always be the best venue for governing cross-border information flows. To start with, TPP is by no means certain to pass. Legislatures in the 12 signatory states must approve the agreement – and eleven months later, no parliament has yet voted. Polling data shows that while many citizens in TPP states support increased trade, they know little about TPP’s specifics, and what they have heard that it will lead to job losses and empower multinationals is often negative.

It’s also important to remember that trade agreements like TPP regulate the behavior of states, not of individuals or firms –  which means companies and citizens have no direct way to influence trade agreement bodies.  While individuals can directly influence members of legislators, they can’t directly influence trade negotiators. In general, trade agreements like TPP are negotiated in secret  by governments, with no direct involvement from the public. Interoperability and universal standards – central to traditional Internet policy development – are not typically priorities in their design. It’s therefore understandable that some critics do not see trade agreements as an appropriate venue for regulating the Internet, and establishing the rule of law online.

In the future, trade agreements could help officials as they try to develop shared rules for the  local and global Internet. TPP’s inclusion of binding language on cross-border information flows offers a good starting point for enabling rule of law, but it isn’t sufficient for promoting the open Internet. In negotiating new agreements, policymakers should include language related to the regulatory context in which the Internet functions (such as interoperability, free expression, fair use, and due process). With such additions, officials will be better positioned to argue that trade agreements are appropriate avenues for mediating tensions between national law and cross-border flows of information.

Susan Ariel Aaronson is a member of Working Group 2 of the Freedom Online Coalition, Research Professor and Cross-Disciplinary Fellow at GWU. She is the author of multiple publications on digital trade and human rights, good governance and accountability, and the rule of law.

[1] https://ustr.gov/sites/default/files/TPP-Final-Text-Electronic-Commerce.pdf; and https://ustr.gov/sites/default/files/TPP-Chapter-Summary-Electronic-Commerce.pdf