IGF 2016 - Day 1 - Room 4 - WS118 - Meet TISA: The trade agreement you’ve probably never heard of


The following are the outputs of the real-time captioning taken during the Eleventh Annual Meeting of the Internet Governance Forum (IGF) in Jalisco, Mexico, from 5 to 9 December 2016. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 


>> BURCU KILIC: Before we start, how many of you have heard about TISA?  This workshop is about TISA, we have a very impressive lineup of speakers, so, before we start, I just want to give you a really brief overview about TISA, what is TISA, it's a ‑‑ being negotiated by 28 parties, counting the US, who call themselves, as the ‑‑ friends of services.  So, we are going to talk, why they call them self as the really good friends of services, and why it's relevant here and why are we having a session here, on services? 

So, we will try to figure out, and, but TISA is a very important ‑‑ it became very important after the ‑‑it hasn't an ‑‑ yet, but it might survive the Trump administration, we will see, we will discuss this as well.  But TISA is a very interesting ‑‑ it's not ‑‑ it's negotiations are taking place in the ‑‑ but it's not they attempt to update, extend the scope and the roots. 

General ‑‑ on trade and services, which was like ‑‑ 1995, which was a pre‑internet.  So, to say ‑‑ gold star ‑‑ for services, and it can ‑‑ the countries negotiating ‑‑ they can bring it back to the WTO members.  We have a very interesting panel and this will be a very interesting discussion.

I want to start with a little bit of a history of TISA and what is TISA, and how the country is this really good ‑‑ of services, starting to negotiate TISA, why they wanted to do, they want a new ‑‑ in services.  So we have ‑‑ James from, Deborah James joining us from Washington, D.C., remotely.  So, she will be the first speaker, because ‑‑ has been covering the WTO for such a long time and she has been ‑‑ as a standard of care, since the very beginning, when none of us now about it. 

She will tell us a little bit of the history of TISA and then we will continue and focus on the issues, like especially the substance of TISA, because we know that this ‑‑ is negotiated behind closed doors and we just had a session before this one and we discussed the trade agreement.  So, now we are going to talk about the substance and what is in TISA.  Before that, I will give the word to Deborah and she can tell us a little bit about the history of TISA, Deborah, it's your turn.

Can you hear us?  I think she is muted.

>> DEBORAH JAMES: Hi, everyone.  Can you hear me?  Hi, everyone, can you hear me?

>> BURCU KILIC: Yes, we can hear you.

>> DEBORAH JAMES: Okay.  So, I thought I would say hi first, but I think we will just go straight as to the PowerPoint.  Thank you for having me and thank you to ‑‑ and to Maryant for organizing this.  So, as ‑‑ has already said, this agreement came out of the general agreement on trade and services that's in the WTO, and that agreement, the corporations, the services corporations that had the idea of developing that agreement have not been satisfied with the level of liberalization within the services of WTO. 

So with the attempt to expand it through ‑‑ kind of stalled a number of years ago, they came up with the idea of having a separate agreement in services in order to achieve the liberalization that they have been working for, for a long time.  I'm going to go through what their ambitions are and quickly share with you a little bit of the structure.  When we talk about services, historically, countries had both public and private provision of services. 

We actually generally have public provision of services when the private sector fails.  So in areas like healthcare and education where if you just had a market based economy, we would not have the optimum outcomes including things like water distribution and sewage treatment, that's where we have the public sector to deal with the private failures. 

And to move toward an international set of finding rules that discipline and limit the way that governments can regulate both public and private services, and how to radical deregulation and move more services from the public into the private sector, but really to clamp down on the ways that governments can regulate the operation of corporations in those sectors. 

So then that would be moving from the concept of citizens having rights to access public services and citizens having public oversight over both public and private services, to corporations having rights to profit in the services sector and we know that this exists already, a little bit, with the gaps, the general agreement on trade and services, but this would be a fundamental reorganization of the rules that govern this area.  

These are some of the members, these are the financial, technological and logistical corporations in the US that have come up with many of the documents upon which TISA is being negotiated.  There are 50 different countries, so all the developed countries and a number of developing countries, that includes Columbia, Chile, Mexico, Panama, Peru, Turkey, Pakistan, so you can see there is a concentration in the financial and logistical firm. 

This is from the Wal‑Mart testimony, this is why we talk about it as trying to create a new, a charter of lights for corporations.  Because for example, what Wal‑Mart is looking for is to have no merchandise restrictions, so ‑‑ and to have no limits on size geographic location on where they put their shops, this is one of many examples we could give.

Soup irrelevant quickly, the TISA structure, we don't have time to go over all of them but some of the basic rules, and countries develop a schedule of commitments which is where they actually list which services sectors they will agree to, adhere to the above rules from the cortex and for certain rules, you actually have all services included except for the ones that you want to have a reservation at. 

And then there are annexes, and they cover more extreme rules either on functions of government or on the systemic services that they use in trade.  So the TISA covers all measures, which means not just legislative laws, but also regulations, rules, procedures, decisions, administrative actions, so any activity that a government would undertake, it also applies to measures that affect trade and service even if it's not actually, you know, supplying the service itself but a measure that fight affect the trade and service. 

It also covers all measures of government so it's not just national governments that would be subject to the TISA results, but also the central, regional and local governments and will the non‑governmental bodies and what this would be, would be something like a medical body that is required to set the certification standards to be certified as a Doctor, for example, that is a delegated authority. 

So, actually trading the service, when a consumer moves to consumer service abroad, when a company comes into your country and start operating a service in a second country and then also when the worker moves.  So that is the four modes of services.  GATS was focused on three, and this, the newer version, if the TISA ever comes to existence, it has ‑‑ mode one, across border supply.  The market access tech, this is one of the core rules I was mentioning, it actually says, it doesn't just offer corporations the right to operate in a market like that would just be opening a sector to liberalization. 

The core ‑‑ actually sets six different ways that the government is not allowed to regulate in that sector.  The number of service supplier, the transactions that would mean that they could not say that banks are not too big to fail.  These are six specific ways that governments are ‑‑ from regulating in the sectors.  There's also a fundamental aspect of TISA copied from the WTO, it's called national treatment. 

Most people understand this to mean you have to treat foreign companies the same as domestic companies, but it goes beyond that, it means that you have to create conditions of competition for the foreign companies that are at least as good as the domestic ones.  You could always discriminate in favor of the foreign ones, but you can't allow conditions of competition, even if you are applying the same exact word for word rules to the domestic and international, you have to make sure that the foreign companies have at least as good conditions for competition. 

Also two new innovations that go far beyond the gap, one of them as standstill.  This means that countries cannot pass regulations and remember, measures, it's anything that affects the supply and service that negatively affect the conditions of competition for foreign companies.  Beyond what they have at this moment.

So, from now on, from when the TISA comes into existence, countries cannot pass regulations that negatively affect the conditions of competition for the foreign companies unless they have already had ‑‑ and the ‑‑ once a sector has been open up to foreign competition, it can't be closed.  We know there are a lot of examples where countries have opened up sectors to private competition, like in water provision or healthcare or suddenly they realize it's been a disaster, the prices go up, the service goes down and suddenly they want to ‑‑they would never be allowed to do that. 

Quickly going through, I'm not going to have time to list all of the sectors, there's 160 plus different sectors.  So keep in mind this is part of what is happening with the TISA, everything is now being considered to be a service. 

So we might before, for example, have thought of a company opening up a manufacturing plant as manufacturing, and it's not anymore, because you have real estate services and construction services and architecture services and engineering services and payroll contracting services, maintenance services, you would also have payroll services, you have banking services, you would have accounting services, you would then have shipping services, logistic services, transport, you would have your data services, you would have distribution services, you see how the entire chain, including actually the manufacturing services, could be, you take what used to be manufacturing and you can come up with 160 different services practically that would be affect by that, and these would all be scheduled in the TISA.

The last part of the TISA is the annexes, these are in addition to schedule the commitments and submit them to the rules that I already mentioned, the national treatment, the ‑‑ and the market access rules, countries would also have to ‑‑ their services to specific annexes, an annex on domestic regulation, there is one on transparency that requires countries to publish proposed measures in advance to give foreign corporations rights to have input into those proposed regulations. 

There's one on government procurement which would open up services procurement of ‑‑ this would force companies, or states, at the state level, this one is only at the national level, to operate state owned Enterprises, like if you have a public utility, like telephone, to operate ‑‑ sort of take out all the reasons why it would be beneficial to have it as a public service and that would lead to further privatization.  A movement on ‑‑ that we already talked about. 

There is a separate one on professional services and localization.  And then another one is systemic or enabling ‑‑ these are the most strategy that would enable cross border trade.  If you think about the economy, traditionally, you have your capital, that's the bubble at the top, you have your labor and ‑‑ you have inputs ‑‑

>> BURCU KILIC: Take a small break here, because we talk about the ‑‑ next, so I want to focus on the E‑Commerce.  Can I put you on hold for a second, and I give the word to David because he is sitting next to me and I know that he is also involved in this negotiations, and for his coalition, E‑Commerce of TISA is very important, I want to give the word to David so he can briefly summarize why this is important, why they are practically interested in trade and services so that we can get his perspective and then we can go from there.  David?

>> DAVID SNEAD: Sure.  So, first of all, that was a really great explains of TISA, about half my, 3/4 of my notes.  I don't need anymore.

Another point of clarification, I'm not negotiating TISA, I'm not a negotiator.  So, look, why is TISA important to internet infrastructure companies?  Why is it important to internet companies in particular?  For the simple reason that almost all trade now has some impact on services.  And it involves the processing of data, so that can be from the processing of an order to confirmation of delivery.  So it's important that trade get ‑‑ or that services get addressed somewhere. 

I agree with kind of the laundry list of things that are being included in TISA.  I mean, it is just a behemoth ‑‑ why is TISA important to the group that I represent?  The infrastructure ‑‑ three reasons:  First it allows data to move across borders.  It's very important to internet infrastructure companies.  Second, it is designed to prohibit to a large extent, not to an extreme extent, requiring that data be stored in a particular location, so that's data localization. 

Data localization ‑‑ in some cases, it does permit data localization.  And it ensures that the agreement apply to all services, including new services, not just services that are ‑‑ that are currently existing.

For our organization, it's important to clarify, we really appreciate and understanding and take into account the views of ‑‑ and civil society, and we want to ensure that TISA and the, what's finally negotiated in TISA, meets already agreed upon international standards that relate to issues like privacy and other non‑trade issues that have already been discussed.  Those are the reasons that we are interested in it.

>> BURCU KILIC: Okay.  Thank you very much, David.  So as I mentioned, the ‑‑ we don't know what would be the future of TISA, but for now, the negotiations are not going anywhere.  And one of the off standing issues in the negotiations is the cross border, the ‑‑ data loss.  It's a priority, it's very, very important for the businesses. 

But I want to take the perspective of the other side, the consumers and the users.  I'm going to give the word to ‑‑ Maryant, and ‑‑ is unable to come up with a position on the issue because of the rural on the cross border transfers and the exceptional language which has been proposed by the US and is not satisfactory enough or, your opinion?

>> MARYANT FERNANDEZ: Thank you very much, I work for European ‑‑ and so we represent 31 organizations in Brussels, in Europe.  Now when I speak, I want you to imagine that there are 30 other people in the room saying the same thing.  When it comes to TISA, we have been involved in the discussions from the European perspective, of course.  Because we have seen that certain ‑‑ have potential to actually undermined ‑‑ and this clues rights like freedom of expression, the right to privacy, the right to personal data and so on. There are many issues I can discuss, and if you go to ‑‑ you will find analogies of all of the issues that we have supported.

But then today, I want to focus on three.  The first one is net neutrality, the second one I will talk about has been the key topic here, data department of privacy in data transfers, and the third one ‑‑ liability and freedom of expression.  So, when it comes to net neutrality, I guess you all know that this principle allows for internet traffic to be slowing down or certain data, and it prevents from dividing the internet into fast and slow lanes. 

And ‑‑ is crucial for innovation, competition, and freedom of expressions, the freedom to receive and ‑‑and for ‑‑ as well.  Our position is that this issue should not be part of trade discussions, however there are proposals that include net neutrality.  However, it's not the principle I described, it's a half cooked version of net neutrality. 

The European in this case ‑‑ improve the proposals on the table, mainly including non‑discriminate tri access, the United States ‑‑ Columbia has a ‑‑ it's quite striking, as you all know, US has net neutrality rules as well as the ‑‑ you wonder why, on the one hand, we say that we don't want net neutrality to be discussed in trade discussions because it's not a trade issue, and at the same time, if the negotiator and the parties want to include net neutrality, we want to make sure that this principle is respected and not a half cooked version of net neutrality. 

And when the wording ‑‑ it's not going to be part of the final text.  The second concern regards to data flows and data protection and privacy.  As you know, data protection is fundamental rights and privacy as well, even more privacy is ‑‑ right, equation of human rights and the ICCPR.  As you know ‑‑ is part of the international human rights framework that the right to privacy should be preserved and defended and all restrictions ‑‑ what happens in TISA, there are several proposals on the table. 

There are some that are encouraging to promote and the so‑called principle of free flow data, which, as I tell you ‑‑ IT da is part of TISA, it's free and ‑‑ data, otherwise we wouldn't oppose it, right?  So today I really want to discuss on what is being proposed. 

So, there's some pressure being put by certain business organizations and also US ‑‑ but also supported by many other countries of, that are part of TISA and that's to include provisions on data transfers and then privacy and data ‑‑ and members to the TISA actually are, allows to ‑‑ measures to protect privacy and data protection but in TISA there are a lot of conditions ‑‑ for example, these, not be ‑‑ the measures ‑‑ must not be inconsistent with the TISA agreement, then they cannot be ‑‑ non‑discriminatory basis, and principles, that sounds lovely, however, the devil is in the details, of course, we see that the problem is if you bring data transfers into the discussion as we discuss here, you bring data protection of privacy on to the table. 

When it comes to the European position, they have been very vocal saying that they are human fundamental rights and they should not be discussed in trade agreements.  But if you want to include data transfers, there are certain conditions that should be respected. 

From our perspective ‑‑ parties should include ‑‑ ensure the ‑‑ protection and privacy and personal data ‑‑suspend the flow of data ‑‑ did it should ensure enforcement of measures related to the rights to privacy and data protects, not subject to ‑‑ on the basis of any trade agreement, not only in TISA, ant guaranty that the parties must not be required to ‑‑ least ‑‑ otherwise you would not be treating them as a human right but as a ‑‑trade. 

As we know, this is not how it's supposed to be, the protection of human rights.  When it comes to data localization, it's another buzz word that I hear a lot.  I'm very concerned actually because I have seen some research in the European union conducted by ‑‑ data localization, of course, if we talk about ‑‑ for example like in country like Russia, this is bad, for many reasons, like surveillance and security. 

However, the ‑‑ there are some ‑‑ that I view that data ‑‑ the Euros and data collection ‑‑ they should not be ‑‑ they should not be there.  And we should do something against this.  So ‑‑ the public forum, I have seen a lot of workshops as well, on E‑Commerce, all of them, in all of them, they were saying that they don't want to undermined Euros in data protection, however, in all of the sessions, there is a speaker that is saying how bad ‑‑ it was for businesses. 

This is very interesting because I understand, actually, why this is the case in the sense that ‑‑ opinion, we now have Euros that are ‑‑ they were adopted last year and being enforced in 2018.  And they unsuccessfully lobbied against this instrument.  And there's also some calls by certain stakeholders to actually repeat I that's not how you ‑‑ I understand why there is a push to have provisions on trade agreements, but as was mentioned before, this is not a trade issue and therefore if you want to include data transfer provisions, we would advise against it, if you do so, I already made some recommendations. 

And the third issue and final issue is on intermediary liability and ‑‑ some provisions on liability protections.  This was proposed by the United States, opposed by Australia and the European union and others, but it's supported by other countries like Columbia.  Same principle ‑‑ align on liability issues.  However ‑‑the data is not reliable if they decided to restrict access to or the ability of certain content. 

If this is harmful or objectionable, not illegal, but, objectionable ‑‑ they would not be liable if they use filtering ‑‑ objectionable.  If one wants to use trade agreements ‑‑ freedom of expression, it should be reflected in the actual text. 

That's what we say, we don't want a detail ‑‑ rights to be discussed, well, not discussed, but be a part of ‑‑ because we think that it's about trade ‑‑ it's not about the ‑‑ promotion of human rights, if you want to promote human rights, why isn't there a binding human rights clause, why isn't the wording put in there recognizing the benefit of having ‑‑ neutrality ‑‑ and when it comes to data flows and transfers, we don't have these ‑‑ we want something to happen.  So, I really would like you to look in the Texas well and come to your own conclusions and I hope it's helpful for the debate.

>> BURCU KILIC: Thank you, Maryant.  As I mentioned, it's highly technical, it's based on the ‑‑ Deborah explained, and E‑Commerce and ‑‑ has very technical rules, which are mostly inspired by the TPP.  So the death of TPP doesn't mean anything because it lives in TISA.  I want to give the word to Kelly.  Kelly is, used to work for the Korean government and used to negotiate trade agreements and Korea has ‑‑ a trade agreement with the US but no monetary rule on ‑‑ transfers and USFDA.  What is Korea's position on TISA and how do you see TISA?

>> KELLY KIM:  Okay.  So, are do I talk about what kind of privacy implications does TISA's data transfer provisions have in Korean situation.

Well, if we are going into details, let me give you a brief background pre‑and data protect landscape.  So, Korea has a very strong data protection regime, as strong as you, before DPR was put into force, but it ‑‑Korean stronger Korean data protection regime, it's ‑‑ diminished by public policies that require verification in every day lives.  So, Korea has ‑‑ system, registration number system, RNS, and these RNS are extensively utilized ‑‑ Korea's business, and we also have ‑‑ and we used to have a general internet ‑‑ system that was struck down by the constitution accord in like four years ago. 

However ‑‑ such as public official election and ‑‑ telecommunications act separately requires internet users to verify their real identities and they normally use this ‑‑ unique number to identify the ‑‑ so, in this context, companies have been collecting very sensitive, personal information like ‑‑ and all kinds of other personal information to verify their ‑‑ Korea citizens.

So, behind that background ‑‑ civil societies better to negotiate, express concerns and constructive suggestions, regarding provisions that Maryant just mentioned, that effect ‑‑ personal data and privacy, the ‑‑concern that the ‑‑ on data transfers would ‑‑ powers to business and that some Providence would prohibit parties from placing restrictions on the location of computing files, data localizations. 

Well, we open that, of course, share the same concerns.  And that's why we signed the letter.  But however ‑‑ in light of Korean's current situation, I can't help agree with David's perspective that, you know, unhindered across border data transfer and restriction on data localization are, I mean, are there ways evil, in my opinion, that's a perspective of ‑‑ private sectors, like companies are bad guys and the governments are ‑‑actors are always good guys. 

But to us, like in Korea's situation, it is opposite.  We sometimes need to ‑‑ the private sector and ‑‑companies and like ‑‑ some other companies like Google to protect our internet users and our citizens censorship, and ‑‑ are personal data, that the service providers ‑‑ in 2014, 13 million subscriber accounts, data, were accessed by the investigative authorities and in a country with just 50 million people, well, it was only telecommunications companies that gave those information to the government when major internet companies refuse to comply with the government ‑‑

And another example is, like, syncing of ‑‑ which happened in 2014, which killed more than like 300 people, mostly high school students, the public was ‑‑ with investigation team in September, 2014, took crack down on lenders and rumors against ‑‑ who is going to be impeached soon, and for her ‑‑ absence during the disaster, and her inability to deal with the disaster.

Could you stop sending me the messages?  Sorry.  So, the team, the investigation team had a closed meeting with major telecommunication companies, and internet companies such as ‑‑ which is like 99 percent ‑‑ rating in Korea, and they, the team, as for like corporation, that meant that the government wanted to look into our private conversations of Korea citizens.  So erased by the news, of this surveillance, millions of Koreans took cyber asylum by using foreign based ‑‑ specially the telegram, people believe that the server is outside Korea and government cannot seize those conversations and communication. 

This change in data is better protected by foreign companies, based overseas, and again, like Mary ‑‑ if our government bans data transfer and demand localization of service in Korea, and ‑‑ Korean government proposed a bill on ‑‑ the data transfer and we ‑‑ opposing the bill because it gives the Korea communications commission and the administrative agency the power to block data transfer if the transfer is in violation of the protects law. 

However, it sounds okay, but we fear that it's not the judiciary, but the government has such power, it might be used to disable citizens to use foreign ‑‑ services freely.  So, to wrap up, I agree we should be concerned with those TISA data cross border transfer provisions and other provisions that might have some privacy end infringing impact.  We should not assume that we could rely on the state actor for best judgment from protecting human rights and privacy of the citizens.

>> BURCU KILIC:  Thank you, following up on her comments ‑‑ it's also an issue for us, during the protesters, they didn't share the personal information with the government, so it's an issue when you have an ‑‑and when you have like a limited freedom of expression, it's an issue for countries and Turkey is one of those countries negotiating TISA.  This does not mean that we have to ‑‑ privacy. 

We accept the exact that there is a place for the transfers in 21st century, yes, there should be a rule or a provision for the data transfer if this is what the technology requires, if this is the reality of technology.  P.  But this doesn't compromise our privacy, and exceptions that have been proposed, they are not good enough, they are not such ‑‑ enough and we are not having that discussion. 

For instance, my organization in the US is like one of the biggest consumer rights organization in Washington, D.C., and while ‑‑ has been negotiating this, never approached us and asked us, what's the consumer perspective?  Because I ‑‑ it's called consumer privacy in the US and they never ask what is the consumer's interest in close border data transfers.  That's why having this conversation is with useful and I'm so glad that this room is full and everyone is here and we are talking about these issues.  So I will now ‑‑ pass the word to Mattias and hear a little bit about the ‑‑ perspective on this issue.

>> MATTIAS BJARNEMALM: Hi.  So, my name is Mattias ‑‑ I work as an advisor in internet policy for the green ‑‑ group.  And the European parliament have not participated in ‑‑ we have consent procedures.  Once the trade agreements are finalized, the parliament actually gets to vote yes or no to the final text.

This is, of course, not in the best ‑‑ well, the parliament, not super happy with this way of handling things where we are basically blocked out if the entire discussion until the very end, and then we have a finished paper in front of us.  The parliament has developed their own methods of trying to influence the work of the commission in the negotiations by adopting resolutions on the text ongoing and also making statements generally based on leaks.

I have to say if you compare ‑‑ the commission has taken steps to involve the parliament a little bit more than the actual negotiations and briefing us regularly through ‑‑ so we can go and read and not take anything with you.

But on this, especially in the area of data protection, we are quite lucky in the sense that the parliament has been working in data protection for a while and adopted regulation that will be ‑‑ 2018, which means that the parliament has a strong interest in making sure that a legislation ‑‑ it should also be said that the member of the parliament responsible for this file was notice commission when the data protection ‑‑ was initially worked with.  So she has been quite up to speed on both trade agreements and also on the data protection aspect.

And it is very ‑‑ as a green, it's very nice to see that the statements of the parliament where it says that data protection is not a ‑‑ barrier but a non‑negotiable fundamental right that in no way shush compromised.  We have our ‑‑ organizations in the ‑‑ thank you for some of the phrasings, but it's also further down in this same resolution from the parliament.  It says that, let's see if we can find that.

It says that commission should ensure that the provisions of the final agreement are ‑‑ with the ‑‑including the regulation of the ‑‑ data protection regulation, the E‑Commerce ‑‑ and the measures ‑‑ market.  Net neutrality, open internet to ensure the data can be transferred only if the provisions on the ‑‑ transfers into the data protection laws are complied with.  And so on.

From my perspective, it's quite obvious that the proposal on the table at the moment does not comply with this.  So given that, you would say that if the parliament would have to give their consent tomorrow, they would vote no.  Unfortunately, the parliament is way better at passing resolutions than at actually stopping the commission when it comes to final deals. 

The actor was a bit of a turning point in that regard but I would not count on the parliament if they were voting tomorrow.  They get a good conscious the last year before elections and sort of fade away afterwards.  If, I think, if we want to push the commission, we need to push the parliament to, and the parliamentarians to repeat these phrasings from February in statements throughout the entire forces.

>> BURCU KILIC: Thank you.  So, while we were proposing this panel, we want to have an interactive discussion.  So that's why it's important to help you as the part of the discussion, and I want to open the floor for the questions, comments, and ‑‑ yes, please go ahead.

>> CHRISTIAN: I'm with the computer communications industry association, represent many of the ‑‑ national tech companies, I think this is a great discussion.  Of course TISA negotiations are on hold, but it's a good description of how a good agreement could look like and promotes human rights.  I think this is a timely discussion.  I agree with all the points, the importance of privacy, the protection, internet liability protection and net neutrality, we totally agree on those three points here. 

I want to make two quick points:  Of course, addressing data flows and trade agreements is not something new, it has been done for more than two decades, so it's not like we are starting totally over, everything that is being discussed builds on ‑‑ and for more than two decades, the EU and all the ‑‑ countries ever been able to put in place data protection rules and they will be able to consider to do so to my knowledge.

Internet liabilities, TISA would have been a great time to put that in place, of course, when you ‑‑countries like Turkey and Pakistan, which has a pretty bad track record when it comes to freedom of expression and closing down on‑line social media platforms, I think that would be a great time to put in place these kind of internet liability protections. 

The US has put forth one proposal, I think they are the only one that did that in TISA, but the EU put forth proposals in ‑‑ we should also ask not only what countries put forth, but how come in other countries like EU ‑‑ internet liability protections to promote freedom of expression.  I think this is a great discussion, I think it's a good constructive discussion on how a good trade agreement could look like.

>> BURCU KILIC: Before I pass the microphones to the speakers, I'm sure they want to comment on that.  The first trade agreement, it has the mandatory rule on cross border transfers, and now the TDP ‑‑ it's the TISA, you will see.

Maryant, David, Kelly, anyone wants to comment?  Or should we collect ‑‑ okay.  Go.  Let's ‑‑ yeah.

>> JULIA: I'm Julia, and my question is, how can this be treated in a mutual lateral arena such as the WTO, and are there status already standards against TISA currently, because if you analyze TISA in the context of the industries for ‑‑ you will see that the integration of internet process enhance the localization of those national companies, that is the globalization and localization, and ‑‑ and this matters because it will affect negatively middle and low income countries and their capacity to shift towards industry ‑‑ 0, and ‑‑sustainable, and economic development.  Thank you.

>> BURCU KILIC: Thank you very much.  I am was planning to talk about it a little bit later because now we are internet transition, and we don't know what's going to happen ‑‑ all discussions coming up with a new ‑‑ on E‑Commerce, and I'm sure ‑‑ wants to comment on the WTO, maybe we can ‑‑ otherwise I can pass the microphone to other speakers.  2011.

>> DEBORAH JAMES: I can say something about it.  Am I on?

>> BURCU KILIC: Yes, you are.

>> DEBORAH JAMES: Sorry, it doesn't seem that the video is working right, just the audio.  Is that right?  We just have audio, we don't have video.


>> DEBORAH JAMES: So, yes, I just ‑‑ thank you for bringing that up.  The US is actually shopping their proposals on E‑Commerce and multiple for us, we see it also in the G7, in the G20 and will in the ‑‑ LOCD, they are bringing it up, it's not just something to say cross border data transfer, but also, you know, they have a number of aspects to a proposal on E‑Commerce prohibiting ‑‑ customs duties, protecting source code, prohibiting mandates for supporting local technology, so there's a number of them. 

The background on it in the WTO, is important to understand.  In the WTO, we know it came into existence in 1995 and ‑‑ 20 so, which has then concluded, and a lot of the aspect ‑‑ were proposals by developing countries ‑‑ is harming their economies and particularly with regards to development issues and agriculture.  It unfortunately, what happened now, some of the countries have blocked any further discussions about reforming those aspects, development in agriculture and are instead seeking to propose a new agenda that is more friendly to their companies. 

And so these are the kind of proposals we are seeing.  It's come under the ‑‑ the sort of idea of E‑Commerce, but it really is about a whole bunch of other things as well as seeing a Trojan horse for, when talking about small or intermediate enterprises, but seeking to introduce these new rules that would be beneficial for the logistic corporations when developing countries talk about WTO and E‑Commerce, there's interest in developing countries, being able to tap into that market, export on the internet, but the issues they talk about are very different. 

And I have spent a lot of time talking with developing countries about their concerns and their concerns have to do with issues like access to the internet, roads and infrastructure, being able to have address addresses, shipping information, the system.  Payment, they actually want technology transfer which is the right of countries in WTO to have access to technology transfer which the big companies seeking to eradicate now.  And ‑‑ fighting against cyber crime. 

You all are familiar that only one in five people then use the internet, one in 10 have it in their homes, and people in least developed countries, they only have a less than 10 percent penetration rate of access to internet. 

So it's a little bit because of the fact that there's been this inequality in the negotiations agenda right now, that we have this problem where developing and poor countries are saying we need to reform the existing system, give some con legislation that we have unfair rules, and instead you see the developed countries saying hey, let's talk about E‑Commerce and selling things over the internet, we will all be rich but using that to bring in a bunch of other changes to existing rules that they would like to see.

Right now this is very much in discussion phase.  There is a mandate from a long time ago to have discussions on E‑Commerce, that's been the case for many, many years.  There's no mandate to have government negotiations.  Those are two different things, to have a discussion and to have negotiations, and so some of the developed countries are pushing to have negotiations start and actually, they would like to see a new agreement on E‑Commerce to be the main outcome of the next ministerial meeting, that will happen in Argentina in December, to 17, there has been major opposition to it. 

The last negotiations on this issue, which was October 18th, the Africa group had a joint statement rejecting the idea.  There are a lot of different issues, if you are talking about farmers in Uganda trying to access the internet for marketing purposes and ‑‑ cross data transfers in ways that would help consolidate the market position of the 11 global tech companies of the top 15 company in the world, 11 of them are in the United States.  That's why we see some.  Push that would help them with their position in the world and why there's so much resistance from developing countries.  I think those are the main points.

>> MATTIAS BJARNEMALM: I can make a quick comment to Christian's questions about internet liability.  That would be speculation, but the European union and the commission in particular hasn't really been super keen on keeping the ‑‑ liability, if you look at the proposal, there have been discussions over and over about something called ‑‑ care, and that might weaken internet liability even though they would ‑‑ as the ‑‑ internally discussing what to do with the concept, I think they would be very likely to include it in a legally binding treaty.

>> DAVID SNEAD: Okay.  So, I have two points that I want to make, and then he wants me to speculate on something that I will speculate on.

So, the first ‑‑ oh ‑‑ awesome, then I will make two points.  The first is, I really, very strongly disagree with the concept that privacy is somehow binary, that either we have privacy or we don't have privacy, and discussing privacy in the context of a trade agreement somehow under minds people's rights to privacy in a global sense.

The US and the European union and the European union and Australia and Australia and the US all have different views of privacy.  These are all cultural views, culturally biased views, and this is a place to work these out.  I'm going to use this as an example, I don't think it's a perfect example, but the US and EU have been able to somewhat intermediate their privacy issues by discussing the privacy shield. 

That provides a useful example of how we can address issues like privacy in the context of trade agreements.  So I really ‑‑ I will under score this again, I really disagree of privacy as a binary concept.  The second point I want to make 1245 trade agreements benefit all businesses, they don't just benefit big businesses.  Our members, we have over 90 members.  The vast majority of whom are small businesses.  The company that I work for, that I'm general counsel for, we sell our services exclusively on the internet, and we are a small business. 

This is ‑‑ again, I disagree with the concept that somehow a trade agreement institutionalizes one large business's business practices over another at the exclusion of small businesses.  I don't necessarily disagree with the concept that trade agreements do not even begin to fully encompass less developing countries' interests, and I think Deborah's concern about internet access, that's a real issue that should be addressed in the context of these discussions.

>> MARYANT FERNANDEZ: So, thank you very much.  I mean, I wanted to say other things.  Maybe I just ‑‑ on the binary issue of privacy.  Yeah, the ‑‑ the point I want to make, as I said before, privacy is a human right and it should be treated as such.  So there's actually a survey and a study conducted by the US administration that shows US consumers do not use on‑line services because they are concerned about their privacy.  That shows actually that's not protecting well enough privacy ‑‑ so, not ‑‑ privacy is not a ‑‑ trait.  I hope I made myself clear, but I hope so. 

The discussions in trade agreements, I totally ‑‑ that we should bring privacy and ‑‑ to trade discussions because as you said, free trade agreements are designed to create growth and ‑‑ now how much this will contribute to the GDP, they are also designed to foster trade ‑‑ they are not there to ‑‑ they are not designed to look at how they can promote human rights.  If they can do that, that's great.  But for example, internet access, there's no clear provision in TISA that would achieve this very important issue. 

And that's the problem I'm trying to say, it's good and trade agreements can do something good.  But we need to see it in a text.  Of course all the comments I have been saying before is not because of the proposals being public, this is subject to the information that I have seen through leaks, for example, the most recent one ‑‑ November, and there are provisions that are Bring proposed ‑‑ for example ‑‑ proposed that ‑‑ enforcement capacity that make sure that the protection of privacy and data are complied with. 

To date, as far as leaks show, there is no other country that has ‑‑ about this issue.  If the idea is to really use trade agreements to not undermined privacy, but even to foster it, why are no single party ‑‑supported this?  When it comes to privacy, I would disagree that the European and the US actually have managed to do a ‑‑ agreements, not because ‑‑ say so, because also because the article 29 working party, the group that actually encompasses all data protection in Europe said it has a lot of flaws. 

One of our members has brought a case before the ‑‑ justice and ‑‑ together with other organizations, have also brought a case before the European court of justice to show that this is not the right way forward.  So, when it comes to, okay, we want to foster privacy and we want to ensure that all countries around the world have good protections, why don't, why doesn't the US endorse ‑‑ the council of Europe.  It's open to ‑‑ and countries that do not belong to Europe, that actually have endorsed it, for example, Senegal, recently.

When it comes to benefit of, talk about businesses, I totally agree, we need to make sure that small businesses are actually also represented.  And then ‑‑ we need to ensure that the trade agreements work for the benefit of all, and not just big businesses. 

When it comes to intermediate liability, it would be great if we had good provisions on ‑‑ however, in ‑‑yeah, because I know, for example, that the CCIA organization actually supports the ‑‑ on the one hand, we want to have good intermediary provisions and do not actually agree with the US proposal, but at the same time you guys support ‑‑ the good Samaritan approach, so I'm confused.  But I would definitely support of having liability protections in freedom of expression, but those ‑‑ rule of law and they are ‑‑

>> BURCU KILIC: We have questions and comments.

>> AUDIENCE PARTICIPANT: I agree that there is nothing ‑‑ about keeping trade negotiation without other public international law separate.  Naturally I had some experience in negotiating on cultural diversity convention which was mainly European attempt to push back against the invasion of the Hollywood products into the European market. 

It involved a lot of resources and we were successful in negotiating and getting ‑‑ the convention.  There was so much discussion about the relationship between the ‑‑ convention and WTO, but we never got around to actually saying anything about it, even in the ‑‑ text.  Which made the cultural diversity convention pretty meaningless in terms of having some effect on the trade‑in balance in cultural products between US and other parts of the world.

So I mean, we don't have to call it a trade agreement, we can call it a hybrid agreement.  It is possible, it is conceptually possible to create a forum where you can discuss privacy and trade together.  And some of the FDA's already have like environment provision and labor provisions which force the State parties to make the regulations, domestic regulations that affect the ‑‑ of their domestic countries ‑‑ through these regulations, so, it is ‑‑ we should, we should talk about how to bring all the values to ‑‑ international law, if not in trade agreement, but to some mutual forum where trade can be affected by these values. 

For that to happen, the reason we are having this workshop is because at the trade negotiations, there are people who are not invited that should have been invited.  There are some society, there are ‑‑ academia who are concerned about privacy who are not invited to the trade negotiations, that's why I think there is a civil society concern about, this is a civil society ‑‑ against bringing privacy into trade negotiation which is being exclusively shared with the government and companies. 

So, another example of the need to somehow, if not synchronize but Harmonize the positions on ‑‑international law and the trade negotiation is the ‑‑ the provision of the US on TISA and ‑‑ reform, through TISA, the US is pushing for more cross border data transfer, but the ‑‑ through the reform, the US is pushing for a global warning that domestic law enforcement can use with vengeance to track down other people's data located in other countries.

So I think that we need to bring trade, privacy and other public interest values together into a forum where all the involved stakeholders can have an open discussion about it.

>> BURCU KILIC: Thank you.  And you are right, I totally agree with you.  But we are making progress.  We have three trade related workshops and a main session on trades.  And it is a huge ‑‑ if you look at the past, because last year, there was only one trade workshop, so there's another trade workshop on Thursday on the TPP, and there's a main session on Thursday afternoon from 4:30 to 6 on trade and internet. 

It's good that we started to discuss, we started to have these discussions here because now we are in a transition period and in the US, unexpected happens, now we have to face, like a new administration and the post Trump trade policy will be different from the pre‑Trump trade policy.  And that was a a question I wanted to propose to David, and of course if the audience has questions or comments about it, they are all welcome, because I think they are missing, what's going to happen now?  This is like the pre‑Trump era and now we have to face the post-Trump era.

>> NORBERT: In my view, the current protection rules, not actually protective to protecting human rights now ‑‑ how does this kind of problem relate to TISA?

>> BURCU KILIC: I didn't get the question.

>> NORBERT: You want me to reread it?  Okay.  In my view, current data protection rules are not actually effective in regard to protecting the human right to privacy, now or in ‑‑ artificial intelligence stuff.  How does this kind of protection relate, this kind of problem relate to TISA.

>> BURCU KILIC: This is a good question, I always say we are not making rules for the technology, which is developing and we do not know what will be the technology in 10 years, that's why we need to have very informed discussion and decide and then make rules for the technology which has been developing.  I don't have an answer for that question.  But it's a good question.  And we should have a discussion.  I think this is a forum to have discussion.  I'm going to pass the mic to David, can you talk a little bit about Trump?

>> DAVID SNEAD:  Yeah, so, most people probably would claim that I don't even know how to use Twitter.  I don't know why I get to talk about Trump, but I will.  I am preface this by saying I'm basing anything that I say on what he has said publicly, right?  So, here is what we are thinking about trade and the incoming administration.  It is highly likely that we are going to move from a kind of multi lateral, big global trade agreement rubric, at least in the US, to more bilateral agreements, that's what Trump seems to favor.  That's what his secretary of commerce seems to ‑‑ or proposed secretary of commerce seems to favor.

So, really, I don't know how that's going to impact big agreements like TISA, clearly it's already affected how the US the looking at TPP and that ‑‑ from a trade perspective, if you look at TISA, this is not something that we are talking about in this session, but TISA has a provision in it on the free movement of people.  It's kind of an immigration type position. 

That is likely something that would draw the Trump administration, as a candidate, Donald Trump ‑‑ talked against ‑‑ that is something that relatively similar to what's in TISA, and we would expect things like that to draw his attention and be taken out. 

He has also ‑‑ I have also heard that he has discussed taking USTR and putting it into the Department of commerce, which would be a very interesting development, particularly as we are talking about trade and trade transparency and who gets to negotiate trade agreements from the US standpoint, taking USTR and taking it out of an executive place that it's in now and putting it into the Department of commerce would really change how trade negotiations take place in the US.  That all said, my Trump crystal balance is probably still stuck in customs somewhere, so that's about all I have.

>> BURCU KILIC: Thank you, David.  We have 10 more minutes.  Any more questions?  Otherwise I will give like maybe one to two minutes for each panelist to share their remarks with us.

Hold on, we have a question.

>> YAKOV: Hi.  My name is Yakov. I work for Wal‑Mart Mexico.  You were talking, and I think ‑‑ I do agree with you from a legal standpoint that you cannot put in trade agreement the stuff regarding the human rights, like privacy.  But at the end of the day, you also have an opinion of which one is more important than the other one?  Because that is the question that, if TISA gets through in the way that it's being negotiated so far, that is a question that is going to be asked a judge to decide whether it is more important, the right of a corporation under the TISA or the human right of a person to privacy.

>> MARYANT FERNANDEZ: Thank you.  That's a very interesting point, because, so, in TISA, this ‑‑ would not be composed of judges, it would be in principle ‑‑ it would be a trade focus, a ‑‑ body that would rule.  If the purpose of trade agreements is trade ‑‑ to further protect privacy or data protection, then what would be the balance, right?  And a lot of tests to be complied with. 

A big article about ‑‑ it's very difficult to actually defend.  There's some research that the provisions of ‑‑ have only been successful out of 45 days, only two cases.  So it's very difficult for a party to actually ‑‑ that measures are actually necessary and the ‑‑ in accordance with trade rules.  That's why, it's not that you cannot include human rights provisions on agreements like TISA, but if you do it, you need to do it right.  It's not about saying, yeah, we should perhaps recognize the benefit of privacy.  That's not how it works.

And that's why we agree with ‑‑ with the question that was deferred, even ‑‑ rules are not addressing all of the issues that we are experiencing.  Why don't we just discuss it by what should be done in other forums because trade agreements, as I said before, the purpose is really trade ‑‑ it's not about ‑‑ the focus is not about human rights, I wish it was, but it's not.  That's why I urge for caution.

>> BURCU KILIC: If there are no questions, okay, so ‑‑ 

>> MATTIAS BJARNEMALM: I think I would have to start to say that I agree very much with what she said ‑‑legislation is beneficial for trade, it makes it easier to trade if you have the same legal framework.  Everyone agrees with that.  From that, you jump to the conclusion that we should do legislation as part of the trade agreements rather than finding other forums to actually see how we can harmonize legislation, which would be compatible with the way we legislate in general. 

We operate, because of this negotiation we should do this through trade, we have two ways to legislate.  The regular method, whatever that is, and through trade agreements.  And of course the problems with trade agreements is that they are not generally built to change, which means that once we put something in the trade agreement, we are more or less stuck with it, when there will be heavy conversations if you want to change anything. 

If you harmonize legislation in any other way, you could, if for any reason you found out that was not beneficial for society, you can get in and change the legislation again.  But we lose that option when we legislate it through trade agreements, therefore I think we should always be extra cautious whenever we do trade agreements that might infringe on non‑trade.

>> BURCU KILIC: Who wants to be the next?  You haven't been speaking for a while.

>> KELLY KIM: So, I come from civil society, but I kind of have a very different perspective from you or Maryant, and I was disappointed, big disappointed to hear that you gave, you as a didn't intermediary liability and won't be pushing forward to put the ‑‑ are not trade agreement, especially TISA:  Like in Korea context, and, you know, our ‑‑ mission is making the internet open and free, and, on internet, internet is open and free because it has no borders. 

And, I mean, I do not read other chapters of TISA, I oppose other chapters, but regarding E‑Commerce or, like, telecommunications or internet, I think we should ‑‑ we should, how can I say?  We should protect other intermediary's or our internet companies from the government or the State, who are really, who are willing to control and regulate the internet so they can have control overall the information, on the internet. 

And to protect our cities and our people from government censorship and surveillance, I think those ‑‑ and E‑Commerce chapters, telecommunication chapters are actually promoting human rights in a sense.  And I agree, I mean, I think that you should, we should propose or, US ‑‑ I mean, I'm glad that US proposed the intermediary liabilities ‑‑ and I think TISA should have, yes, that's protection for intermediaries.

>> BURCU KILIC: Thank you.  Who wants to be the next?

>> DAVID SNEAD: I will be next.  So, there are two points that I would like to make:  The first (lost audio).

Okay.  Sorry, apparently I ‑‑ okay.  So, what I said for those who didn't hear me is, what we have been saying, what ‑‑ we have been saying, and this panel illustrates, that the trade discussion benefits immensely from multiple viewpoints and a that's not occurring.  Right now, the viewpoints of most of the people who are sitting, who are talking, aren't considered in a substantive way. 

And I think that this discussion really illustrates why that needs to take place, even though that's not why we are at this particular session.  So moving to TISA specifically, on TISA, TISA is too important of a trade agreement to be rushed through. 

And that's another thing that all these viewpoints indicate, is that there needs to be substantive discussion about the impacts that TISA is going to have on issues that are non‑traditional trade agreement issues like privacy, like how the agreement is going to include and anticipate the needs of countries whose internet has not developed to the extent that industrialize have.  These are two important issues to rush the agreement through.  That's my final remarks.

>> MARYANT FERNANDEZ: First, I would like to say that if ‑‑ too important, I am encouraged to have political leadership to really take into account all of the perspectives that we have heard today.  And not just be one sided.  I agree that the trade agreement can be beneficial but in order to be more beneficial even for citizens ‑‑ rights need to be respected and those ‑‑ in particular, that's what we are talking about today. 

Finally, in the ‑‑ agreement, it has good provisions on internet liability, but I would of course agree that the ‑‑ proposal would not achieve ‑‑ the standards that were set in ‑‑ for example.  But I would agree that including intermediary protections would be beneficial.

And finally, on surveillance, that would be great, trade agreements would solve the problem of surveillance, we haven't discussed this much, but in the E‑Commerce, even if you had the most perfect provision against surveillance, then no party ‑‑ is obliged ‑‑ national security interest.  That's the issue.

>> BURCU KILIC: Thank you very much.  This was a very, I think informative and very interesting discussion.  I'm glad all of you joined us for such a boring topic.  And if you have questions, please don't hesitate to approach us.  Thank you very much.

Oh, I forgot you.  Sorry.  Deborah!

>> DEBORAH JAMES: I know we are short on time.  So I really appreciate the other panelists comments and I just have a couple quick points.  To address the issue of the fact that the TISA and the trade rules might be good for small companies, completely agree with that.  The problem is that a lot of the proposals are written primarily by the large companies, and they are not necessarily designed to promote growth and jobs. 

They are primarily, you know, designed to increase trade and to give new rights to corporations on how they operate in the public sector and the private sector.  So, yes, almost every trade agreement has increased trade, but they have nearly all universally fallen short on increasing jobs and they are a major culprit on increasing inequality and putting pressure on wage growth and that's why there have been negative impacts for the majority. 

Citizens, that doesn't mean that the trade agreements have to be like that, obviously because trade certainly can increase growth and jobs if it's done right. 

I just wanted to make one comment about the new services issues, because this is a big fight between the EU and the U the S, the idea of the of the companies promoting ‑‑ many of the countries that are representing them is to have a provision of technological neutrality, meaning that the current rules, whatever is developed in the TISA would apply to services no matter how they are being developed, we have on‑line moves, E books, carbon capture and storage services, all of these are services that weren't included in the original classifications, and the idea would be to use public regulatory power, which say the corporations decide and it has to be the same rules, sending a pizza delivery boy out or having a drone deliver it, they would be the subject to the same rules. 

Any normal person would say these are two different things and maybe need some different rules.  So, I just wanted to say, you know, I really appreciate this discussion.  There's a lot to talk about in terms of balancing things like access to internet for poor countries, access to internet for people understand repressive regimes, but if we look at the entire proposal on balance, because of the fact that it is generally, companies that have a lot of access to the negotiators, 85 percent of advisors in the United States are from the corporate sector and there are international agencies that regulate every one of the topics in the TISA from finance to area transport, every single one of them has an international regulatory agency. 

Another one of the panelists brought that up.  That's where the rules should be set, not to have the power usurped in secret trade agreements dominated by companies, you are going to have an outcome that ‑‑ not only privacy but regulation in each one of these areas and have rules that only are beneficial for the companies.  And I don't think that's where we want to go as citizens from democratic countries.

Thank you very much for organizing.

>> BURCU KILIC: Thank you, Deborah, thank you for joining us.  Okay.  Thank you.