WikiLeaks has released 17 secret documents from the negotiations of the global Trade in Services Agreement (TISA), which have been taking place behind closed doors, largely unnoticed, since 2013. The main participants are the United States, the European Union, and 23 other countries including Turkey, Mexico, Canada, Australia, Pakistan, Taiwan and Israel, which together comprise two-thirds of global GDP.
Significantly, all the BRICS countries—Brazil, Russia, India, China, and South Africa—are absent, and are therefore unable to provide their perspective and input for what is essentially a deal designed by Western nations, for the benefit of Western corporations. According to the European Commission’s dedicated page: “TiSA aims at opening up markets and improving rules in areas such as licensing, financial services, telecoms, e-commerce, maritime transport, and professionals moving abroad temporarily to provide services.”
TISA’s focus on services complements the two other global trade agreements currently being negotiated in secret: the Transatlantic Trade and Investment Partnership (TTIP), and the corresponding deal for the Pacific region, the Trans-Pacific Partnership (TPP), which deal with goods and investments. Like both TTIP and TPP, one of the central aims of TISA is to remove “barriers” to trade in services, and to impose a regulatory ratchet on participating nations. In the case of TISA, the ratchet ensures that services are deregulated and opened up to private companies around the world, and that once privatised, they cannot be re-nationalised.
The 17 documents released today include drafts and annexes on issues such as air traffic, maritime transport, professional services, e-commerce, delivery services, transparency, and domestic regulation, as well as several documents on the positions of negotiating parties. The annexe on e-commerce is likely to be of particular interest to Ars readers, since, if adopted, it would have a major impact on several extremely sensitive areas in the digital realm.
Thou shalt not…
For example, the question of data flows—specifically the flow of European citizens’ personal data to the US—is at the heart of disputes over the EU’s proposed Data Retention rules, the Safe Harbour agreement, and TTIP. Here’s what Article 2.1 of TISA’s e-commerce annexe would impose upon its signatories: “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.”
What that means in practice, is that the EU would be forbidden from requiring that US companies like Google or Facebook keep the personal data of European citizens within the EU—one of the ideas currently being floated in Germany. Article 9.1 imposes a more general ban on requiring companies to locate some of their computing facilities in a territory: “No Party may require a service supplier, as a condition for supplying a service or investing in its territory, to: (a) use computing facilities located in the Party’s territory.”
Article 6 of the leaked text seems to ban any country from using free software mandates: “No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.” The text goes on to specify that this only applies to “mass-market software,” and does not apply to software used for critical infrastructure. It would still prevent a European government from specifying that its civil servants should use only open-source code for word processing—a sensible requirement given what we know about the deployment of backdoors in commercial software by the NSA and GCHQ.
Without WikiLeaks, the presence of these far-reaching proposals would not have been revealed until after the agreement had been finalised—at which point, nothing could be done about them, since the text would be fixed. With the publication of these documents, civil society has an opportunity to find out what is being discussed behind those closed doors, and to analyse and discuss the implications. Whether the negotiators will take account of what ordinary people think is another matter.