At the Intersection: TPP, Data Flows and Human Rights

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.

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.

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).

SSRN Electronic Journal, 2000

Finding: The Internet has empowered more people to trade information, services and goods. The Internet is both a platform for trade and a technology transforming trade, empowering more people to become market actors online.

This article examines the debate over digital trade and human rights, published in World Trade Review

Max Planck Yearbook of United Nations Law Online, 2006

et seq. (562) (stating that "[t]he argument that technological changes occurring today require the death of the state and its regulatory function proves too much").

2016

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World has witnessed a new technological revolution in the form of internet especially in the latter half of the last century. Internet is a worldwide system of interconnected computers used for communication purposes. It has enabled millions of people throughout the world to communicate and interact with one another without regard to space and time limitations. Internet, as such, has removed constraints of space, time and distance. It has transcended conventional tangible boundaries. Internet can be said to be a information superhighway, a virtual library, a river or a global village. Internet has always posed a great challenge to law making and law enforcing authorities. Many areas of law, including, intellectual property, constitutional, commercial and criminal law have been particularly affected in varying degrees by the internet. The main problem relating to internet is that there is no central law governing the internet because there’s no central policy-making body that enforces internet decisions. This creates problems on such issues as jurisdiction, criminal law, evidence, privacy and even human rights. However, the most important aspect from public law standpoint has been the efforts at the international level to construct an international regime for global internet governance. Many of the governments whose citizens are connected to internet have expressed concern about the problems the internet has created. They have attempted to take action against the Internet’s intrusion upon the moral and cultural sensibilities of their citizens. However, individual attempts at regulating a worldwide system seem futile. Most attempts to define new rules rely on the disintegrating concept of territory while ignoring the new network and technological borders that transcend national boundaries. Currently, due to lack of national boundaries on the Internet, the only adequate way for countries to assert any control over the internet seems to involve withdrawing or restricting access. In this backdrop, it is being widely felt that a new international agreement must be concluded which recognizes the complexity of networks and allows expansion of the information revolution while avoiding the problems present in the existing legal framework. A possible solution to some of the problems resulting from internet use would be the creation of an international convention for governing this new medium of communication. This paper discusses some of the problems inherent to the Internet and analyses current international legal norms that apply to the internet. It enumerates certain set of principles and norms that could provide the foundation for the new Internet governance regime. It also opines that best way forward would be to conclude a framework convention as an appropriate institutional mechanism for advancing such a regime in the initial stage of its formation.