Leak shows: Trade treaty TiSA could undermine national data protection regulations Klick für deutschsprachige Version Nations involved in TiSA negotiations – via know-ttip.eu The secretly negotiated trade treaty TiSA — short for “Agreement on Trade in Services” — jeopardizes privacy protection in international data transfers. That demonstrates a leaked 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? Document OCR text This Document Contains TISA — U.S. CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED* Trade in Services Agreement (TiSA) Proposal New Provisions Applicable to All Services April 25, 2014 Reason: 1 ‚4(b) Declassify on: Five years from entry into force of the TISA agreement or, if no agreement enters into force, five years from the close of the negotiations. * This document must be protected from unauthorized disclosure, but may be mailed or transmitted over unclassified e—mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room or container. [pagebreak] Article X.1: Local Presence Subject to any conditions, limitations and qualifications set out in its Schedule‚ no Party may require a service supplier of another Party, as a condition for the cross—border supply of a service in its territory, to establish or maintain a commercial presence, or to be resident in the Party’s territory. Article X.2: Local Content Subject to any conditions, limitations and qualifications set out in its Schedule, no Party may, in connection with the supply of a service by a service supplier, impose or enforce any requirement; enforce any commitment or undertaking; or, in connection with the supply of a service through commercial presence, condition the receipt or continued receipt of an advantage on compliance with any requirement: (a) to purchase, use or accord a preference to: (i) goods produced in its territory, or to purchase goods from persons in its territory; (ii) electronically transmitted content [footnote: Electronically transmitted content means any content that is digitally encoded and produced for commercial ‘sale or distribution, including a computer program. For greater certainty, electronically transmitted content does not include digitized representations of financial instruments, including money. This definition is without prejudice to whether electronically transmitted content is a good.] based on the territory where it was created, produced, published, contracted for or commissioned, or the nationality of the author, performer, producer, developer, or owner [footnote: For greater certainty‚ “territory” and “nationality” includes the territory and nationality of non-Parties.]; or (iii) computing facilities [footnote: “Computing Facilities” means computer servers and storage devices for the processing or storage of information. This does not include facilities used for the supply of public telecommunications services.] located in its territory or computer processing or storage services supplied from within its territory; or (b) that a service supplier engaged in the marketing or distribution of goods or electronically transmitted content purchase, use, or make available a specified percentage: (i) of goods of domestic origin; or (ii) of electronically transmitted content that meet the criteria set out in subparagraph (a)(ii). Paragraph 1 does not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs, or to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas. Nothing in paragraph 1 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with the supply of a service, on compliance with a requirernent to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory. [pagebreak] Article X.3: Local Technology Subject to any conditions, limitations and qualifications set out in its Sehedule, no Party may, in connection with the supply of a service, impose or enforce any requirement or enforce any commitment or undertaking: (a) to transfer a particular technology or other proprietary knowledge to a person in its territory; or (b) (i) to purchase, use, or accord a preference to, in its territory, technology of the Party or of persons of the Party [footnote: For purposes of this Article, the term “technology of the Party or of persons of the Party” includes technology that is owned by the Party or persons of the Party, and technology for which the Party holds, or persons of the Party hold, an exclusive license.]; or (ii) that prevents the purchase or use of particular technology in its territory so as to afford protection on the basis of nationality to its own services or services suppliers or to technology of the Party or persons of the Party. Paragraph 1 does not apply: (a) when a Party authorizes use of an intellectual property right in accordance with Article 31 of the Agreement on Trade Related Aspects of lntellectual Property Rights (TRIPS Agreement), or to measures requiring the disclosure of proprietary information that fall within the scope of, and are consistent with, Article 39 of the TRIPS Agreement; or (b) when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be anticompetitive under the Party’s competition laws. Article X.4: Movement of Information 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. Article X.5: Open Networks, Network Access and Use Each Party recognizes that consumers in its territory, subject to applicable laws, and regulations, should be able to: (a) access and use services and applications of their choice available on the Internet, subject to reasonable network management; (b) connect their choice of devices to the Internet, provided that such devices do not harm the network; and [pagebreak] (c) have access to information on network management practices of their Internet access service suppliers. Article X.6: Electronic Authentication and Electronic Signatures Except where otherwise provided for in its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form. No Party may adopt or maintain measures for electronic authentication that would: (a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or (b) prevent parties from having the opportunity to establish before judicial or administrative authorities that their electronic transaction complies with any legal requirements with respect to authentication. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the method of authentication meet certain performance standards or be certified by an authority accredited in accordance with the Party’s law. Article X.7: Exceptions For greater certainty, Articles X.2 and X3 do not apply to any obligation, commitment, undertaking, or requirement other than these set out in these articles. Articles X.2 and X3 do not preclude enforcement of any commitment‚ undertaking, or requirement between private parties, where a Party did not impose or require the commitment, undertaking, or requirement. Provided that such measures are not applied in an arbitrary or unjustifiable manner, and provided that such measures do not constitute a disguised restriction on trade in services, Articles X.2 and X3 shall not be construed to prevent a Party from adopting or maintaining a measure related to the conservation of living or non—living exhaustible natural resources. Nothing in [Articles X.1 — X.6] shall be construed to prevent any Party from taking any action which it considers necessary for the protection of its own essential security interests. [The applicability of Articles X.1—X.4 to certain financial services is under consideration] [This proposal presumes that government procurement is not within the scope of TiSA] [pagebreak] Annex [footnote: AU: For purposes of this text, we refer to “Annex”. As the architecture of the TISA text takes shape, it is possible that it could be a “Chapter” or “Section”.] on Professional Services [as at 5 September 2014] Part I — Commitments on Professional Services Scope [and Definition] (a) This Annex applies to measures by parties affecting trade in professional services. For the purposes of this Annex, “professional services” means the following services [AU propose: as defined] in each Party’s Schedule: (i) [MX oppose: legal services][AU/JP propose, including for [CH oppose: domestic law (host country law)‚] foreign law and international law] [CPC861]; (ii) accounting, auditing and bookkeeping services [CPC 862]; (iii) taxation services [CPC 863]; (iv) architectural services [CPC8671]; (v) engineering services [CPC8672]; (vi) integrated engineering services [CPC8673]; (vii) urban planning and landscape architecture services [CPC8674]; (viii) [CH/CO/NO propose: engineering related scientific and consulting services [CPC 8675]; (iX) technical testing and analysis services [CPC 8673]; (x) [AU/CO/NO propose; US/MX/JP oppose: veterinary Services [CPC932]]; and (xi) [AU/CO/NZ/NO propose; KR/MX/TW/CH/JP oppose: private education services [CPC 921-4**, CPC 929**]] (b) This Annex [AU/CO/JP propose: shall not apply][AU/CO oppose: is subject] to [any measure that a Party adopts or maintains with respect to] sectors, sub—sectors, or activities [AU propose; CH oppose: as set out in Section A of Part I of each Party’s Schedule] [AU oppose: that a Party has][AU oppose: scheduled in accordance with Article II—2 paragraph 4]. [AU/CO propose; EU oppose:2. Standstill In scheduling commitments pursuant to Article I—3 (Market Access), any terms, limitations and conditions on market access affecting trade in professional services shall be limited to measures that a Party maintains on the date this Agreement takes effect, or the continuation or [prompt] renewal of any such measures.] [pagebreak] [AU/CH propose: 7. Economic Needs Tests No Party may adopt or maintain discriminatory economic needs tests, including labour market tests, as a requirernent for the supply of a professional service [footnote: [AU propose: Nothing in this paragraph shall be construed to prevent a Party applying economic needs tests in a manner which accords national treatment to professional services and service suppliers of any other Party within the meaning of Article 1:4.]] [CH propose; AU oppose: for categories described in a party’s schedule of specifiec commitrnents].] [AU propose: 8. Business names Subject to its laws and regulations, each Party shall permit professional service suppliers of any other Party to use the business names under which they ordinarily trade in the territory of the other Party and otherwise ensure that the use of business names is not unduly restricted.] Part II — Trade in Professional Services 9. Encouraging Recognition (a) Each Party shall consult [NO propose: as appropriate] with relevant bodies in its territory (“its relevant bodies”) to seek to identify professional services sectors or sub—sectors where two or more Parties are mutually interested in establishing dialogue on issues related to recognition of professional qualifications, licensing and/or registration. (b) Each Party shall encourage its relevant bodies to establish dialogues with the relevant bodies of other Parties, with aview to recognising professional qualifications, and facilitating licensing and/or registration procedures. (e) Each Party shall encourage its relevant bodies to take into account existing agreements relating to professional services in the development of agreements on recognition of professional qualifications, licensing and registration. (d) Each Party may consider, where feasible, taking steps to implement a temporary or limited licensing regime, such as project specific licensing or registration, based on the foreign supplier’s home license or recognised professional body membership (without the need for further [CO/EU/CL oppose: written] examination). Such a temporary or limited licensing regime should not operate to prevent a foreign supplier from gaining a local license subsequent to satisfying the necessary local licensing requirements. 10. Working Party on Professional Services (a) The Parties shall endeavour to facilitate trade in professional services, including through the establishment of a Working Party on Professional Services, comprising representatives of each Party. 10 Gründe, um genau jetzt einen Dauerauftrag für netzpolitik.org einzurichten.
Posted on: Wed, 17 Dec 2014 11:19:50 +0000