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EU – Japan trade agreement undermines algorithmic transparency

The EU trade agreement with Japan undermines algorithmic transparency, Dutch EDRi member Vrijschrift wrote in a letter to the Dutch Parliament.

By Vrijschrift (guest author) · June 13, 2018

In order to have regulatory supervision, we need access to source code and algorithms. The Volkswagen emissions scandal has shown that devices can be programmed to be misleading. In addition, algorithms in decision making software can be biased. Facebook’s role in elections and referendums shows that the use of personal data is not only a civil rights issue, but may compromise the integrity of our institutions.

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Politicians call for algorithmic transparency and software audits. However, the EU-Japan trade agreement’s software code clause limits the possibilities to audit software and algorithms. Under the agreement’s article 8.73 the EU and Japan may not require the transfer of, or access to, source code of software owned by a person of the other Party. The article provides some exceptions, but they have a limited scope or are limited by strict conditions.The clause is in conflict with important policy objectives; Vrijschrift calls for a parliamentary scrutiny reservation.

You can read Vrijschrift’s letter to the chairman of the trade committee Raymond de Roon below:

We would like to express our concerns regarding the trade agreements with Japan and Singapore. These agreements fall under the EU’s competence; no ratification by the Netherlands is necessary. The EU can already decide to sign the treaties on June 26. We believe that the House should make a parliamentary scrutiny reservation.

It has recently become clear that the protection of personal data is not just a matter of civil rights. The scandal surrounding Facebook has shown that also the integrity of our institutions is at stake. The European Commission and European politicians (e.g. Merkel and Verhoeven) rightly want greater algorithmic transparency. However, the EU-Japan trade agreement’s source code clause will undermine the investigation of algorithms. A clear conflict between an important policy objective and a trade agreement.

The European Commission recently proposed a stronger safeguard for the protection of personal data in trade agreements. This safeguard has not been included in the treaties with Japan and Singapore, although these treaties require to allow cross-border data traffic. The Commission provided half-work, which we consider to be irresponsible in the light of the necessity to protect civil rights and the integrity of our institutions.

The treaties with Japan and Singapore limit the possibilities for reforming copyright and patent law. The treaty with Singapore contains higher damages than the ACTA treaty, which was rejected by the European Parliament.

The proposed treaties deserve serious scrutiny; we believe that the House should create room for this.

Read more:

Vrijschrift letter, English translation: EU trade agreement with Japan undermines algorithmic transparency

Vrijschrift letter (original in Dutch):

EU-Japan trade agreement enables Internet of Cheating Things

EU-Japan trade agreement not compatible with EU data protection

EU-Singapore trade agreement not compatible with EU data protection

EU-Japan trade agreement’s intellectual property chapter limits options for reform

ACTA-plus damages in EU-Singapore Free Trade Agreement

(Contribution by Ante Wessels, EDRi member Vrijschrift, the Netherlands)