Can Trade Policy Set Information Free?

Herein, we examine how the United States and the European Union (the EU) use trade agreements to advance the free flow of information and to promote digital rights online. In the 1980s and 1990s, after US policymakers tried to include language governing the free flow of information in trade agreements, other nations feared a threat to their sovereignty and their ability to restrict cross-border data flows in the interest of privacy or national security. In the 21st century, again many states have not responded positively to US and EU efforts to facilitate the free flow of information. They worry that the US dominates both the Internet economy and Internet governance in ways that benefit its interests. After the Snowden allegations, many states adopted strategies that restricted rather than enhanced the free flow of information. Without deliberate intent, efforts to set information free through trade liberalization may be making the Internet less free. Finally, the two trade giants are not fully in agreement on Internet freedom, but neither has linked policies to promote the free flow of information with policies to advance digital rights. Moreover, they not agree as to when restrictions on information are necessary and when they are protectionist.

A number of legislative frameworks and policies exercise various constraints on access to the Internet for certain goods, services, and other content. Some of these are recognized by most, if not all market participants as legitimate (data protection laws, measures to combat fraud, as well as the enforcement of intellectual property rights), whereas others are seen as merely disguised protectionism (onerous and/or opaque registration or licensing rules and the heavy-handed application of censorship policies to name just two). This paper discusses the use that is increasingly being contemplated or made of trade rules, particularly WTO disciplines, to tackle those constraints that are viewed as either disguised protectionism or a breach of WTO commitments. It discusses the scope of these rules, the uses they have been put to in order to pry open services markets up to now, and the likely limits of their application. It also looks at how those interests most concerned with exporting goods and services via the internet have recognized the limits posed by existing trade rules - at least implicitly - and how they are seeking to address these shortcomings by drafting new rules, either at the WTO or in fora such as bilateral and plurilateral trade agreements.

World Trade Review, 2015

Policymakers are faced with similar tough choices about information (or data) flows. On the one hand, they want to encourage the flow of information across borders in the interest of commerce, education, technology, and scientific progress. On the other hand, at times government officials need to restrict the free flow of information in order to achieve important policy objectives such as preventing spam, piracy, and hacking as well as protecting national security, public morals, and privacy. In addition, policymakers must find ways to ensure that the rules governing cross-border information work effectively across nations and systems, reflecting the ideal of the global interoperable Internet) 2 . Policymakers can indirectly or directly restrict information flows either by changing national policies and laws or by regulating online service providers Birnhack and Elkin-Koren, 2003: 7, 24-26).

This policy brief for the Global Commission on Internet Governance examines how governments use trade policies to regulate the Internet and its implications for digital rights and Internet Governance.

This paper studies the framework for Internet regulation in the United States, Europe and China. Focusing on co-regulatory mechanisms, it analyses the legal tools used by governments in order to entrust private 'points of control' to monitor Internet. It focuses more specifically on the impact of co-regulation on the rule of law and on the emergence of a transnational struggle for law between global players.

2016

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2010

The backbone protocols and infrastructure of the internet are in urgent need of protection against unwarranted interference in order to sustain the growth and the integrity of the internet. Countering the growing state interference with this backbone requires a new international agenda for internet governance that departs from the notion of a global public good. Core ingredients of this strategy are: • To establish and disseminate an international norm stipulating that the internet’s public backbone must be safeguarded against unwarranted intervention by governments. • To advocate efforts to clearly differentiate between internet security (security of the internet infrastructure) and national security (security through the internet) and have separate parties address these different forms. • To broaden the arena for cyber diplomacy to include new coalitions of states (including the so-called ‘swing states’) and private companies, including both internet giants as well as internet intermediaries such as Internet Service Providers.