Negotiations TiSA Leak shows: Trade treaty TiSA could undermine national data protection regulations

Netzpolitik.org | am 17. Dezember 2014

Leak shows: Trade treaty TiSA could undermine national data protection regulations

von Anna Biselli

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The secretly negotiated trade treaty TiSA — short for “Agreement on Trade in Services” — jeopardizes privacy protection in international data transfers. That demonstrates aleaked draft from the TiSA negotiations, which we received in journalistic partnership with Associated Whistleblowing Press through its Spanish platform filtrala.org. Data protection regulations, like the planned EU General Data Protection Regulation, would be levered out and led ad absurdum, if the present draft would enter into force.

More widely known than TiSA is TTIP — the Transatlantic Trade and Investment Partnership dealing with the trade of goods. TiSA has not been exposed to the glare of publicity like TTIP and deals with the liberalizing and the exchange of services. It will de facto function as a successor of the “General Agreement on Trade in Services”, short GATS. But except GATS, some nations will be excluded that do not belong to the around two dozens of nations accounting for approximately 75 percent of the international trade in the business sector — among them the EU, USA, Australia, Japan, Mexico and Canada.

In June Wikileaks already published a chapter of the TiSA drafts that essentially deals with the deregulation of the finance sector. Before, TiSA negotiations went on nearly completely without public attention.

Goal of the treaty is to expose every kind of service to international competition, even in the public sector. That threatens the affordable basic support with public goods, e.g. health, water and enery supply or education. Already privatized companies would be prevented from a re-transfer to the public sector by a so-called barring “ratchet clause” — even if the privatization failed.

The new documents show that the number of services affected by TiSA surpass the ones assumed until now und which were already mentioned in the Wikileaks publications.

In the scope of TiSA would not only be financial services but at least also:

Legal services by lawyers, notaries, etc.

- Technical services like internet providers

Electronic transactions

Digital signatures

Bookkeeping and audition services

Taxation services

Architectural services

Urban planning and landscape architecture services

Technical and scientific testing services

Veterinary services

Private education services

What has all of this to do with net politics? A lot. Because for TiSA free data flows correlate with open competition, like the Wikileaks publication from June already indicated. The highlighted items above mark which digital services are affected additionally. One can imagine which consequences it will have when data of communication service providers gets exchanged between countries almost without binding data protection restrictions, like it is said:

No Party may prevent a service supplier of another Party from transferring, accessing, processing or storing information, including personal information, within or outside the Party’s territory, where such activity is carried out in connection with the conduct of the service supplier’s business.

If one then looks at the way some US telecommunication providers cooperate with American secret services there is only little phantasy needed to imagine what will also happen to the data of European customers. European data protection rules would thereby be undermined completely.

Rosa Pavanelli, the General Secretary of the trade union federation Public Services International, shares those concerns and said in a statement:

It is now clear the US wants to use its trade agenda to remove restrictions to data being held or processed in other countries.

[…]

Negotiating provisions that potentially circumvent privacy laws in the interests of corporate profits is a scandal. The TISA negotiators have now lost the confidence of the public and can only regain it with the immediate release of all documents.

At the moment also another big international trade agreement TTIP is negotiated, regulating trade with goods and products. Another one, the Comprehensive Economic and Trade Agreement (CETA), only has to be approved.

Already TTIP led to massive privacy concerns, but it is persistently denied by the German government that data protection is affected by TTIP at all. For example like in this answer to a brief inquiry of the Greens in the parliament:

The German government agrees with the European Commission that privacy questions should not be a topic in the TTIP negotiations.

That sounds slightly different on the website of the ministry of economy:

However, data protection also affects trade-related communications, i.e. for services in the information and telecommunications sector if and how regulations and instructions fit together (“regulatory compatibility”). Such aspects are dealt with in TTIP. Also questions of data protection in service trade, e-commerce or ICT are addressed to reach a common agreement and understanding. TTIP however does not affect the currently ongoing negotiations about the EU data protection reform.

But facing the present insights it is more than window dressing that it is officially pretended not to diminish data protection standards with TTIP whilst in TiSA data protection gets totally flatened concerning the service sector.

One big problem with TiSA is the lack of public attention that makes it easy for the negotiators to act secretly. Although, TiSA would need the same attention — or better: both agreements would need much more attention — to prevent the sell-out and commercialization of our personal data. And — most likely — a lot more, so says Pavanelli:

We now know that TISA will further deregulate the financial sector, stop failed privatisations being brought back into public hands and undermine data privacy laws. What else are our governments keeping secret from us?