TiSA resolution: what are you going to do about it?

By EDRi · February 3, 2016

The Trade in Services Agreement (TiSA) is bizarrely and sadly not subject to the same public debate as other “trade” agreements, such as the Transatlantic Trade and Investment Partnership (TTIP) or the recently concluded Trans-Pacific Partnership (TPP). While some do not find TiSA as “sexy”, it still contains provisions that should deserve all your attention.

Based on the leaked documents and limited public information available, EDRi has elaborated its position on TiSA to make sure digital rights are not forgotten in the discussions and that they can be duly respected. On 3 February 2016, the European Parliament updated its 2013 recommendations to the European Commission, which is ultimately in charge of conducting the negotiations on behalf of the European Union.

The Parliament’s resolution is timely because the 16th round of the TiSA negotiations is taking place this week. According to the European Commission, the negotiators of the 23 Parties to the TiSA are dealing with the subjects of transparency, e-commerce and telecommunications, among others.

According to the European Parliament, the Commission should endeavour to have the “highest level of transparency” and extend the European Ombudsman’s recommendations on transparency to TiSA documents. Interestingly enough, though, TiSA’s (leaked!) annex on Transparency addresses other types of “transparency”. For instance, some countries are proposing to undermine the right to regulate, both in this annex and the (also leaked) annex on Domestic Regulation. On this point, the Parliament is asking the Commission to legally secure the right to regulate, which EDRi welcomes (see p. 4 of our position).

Regarding e-commerce, we highlight the Parliament’s recognition of the value of protecting personal data when transferring data to third countries, which may include local data storage requirements for the specific purpose of data protection, but not forced data localisation. We also welcome the Parliament’s refusal to allow “any backdoors in technologies” or broaden the national security exceptions.

Concerning telecommunications, we highlight the Parliament’s recommendation to promote net competition and to safeguard of net neutrality.

In a nutshell, the Parliament followed the recommendations of the International Trade Committee (INTA), adding some points such as the need for a mechanism to suspend the agreement or reverse commitments. Now the question is whether the European Commission will succeed in integrating the (unfortunately non-binding) Parliament’s recommendations into the final text of TiSA. Amendments to INTA’s report were put forward in plenary to ensure that the EU would withdraw from the negotiations if Parliament’s demands were not met. However, these amendments did not obtain majority, undermining the strength of the message being sent by the Parliament.

The problem with bilateral or multilateral trade agreement negotiations is that you win on something in return for losing on something else. However, we believe the Commission should not use this excuse to disregard the Parliament’s (good!) recommendations on inter alia digital rights. As the UN independent expert Alfred-Maurice de Zayas pointed out, “[t]rade is not an end in itself” and in this sense countries must not “circumvent, undermine or make impossible the fulfilment of [their] human rights treaty obligations”. These include the right to privacy and the freedom of expression and opinion, which are also recognised as such under the EU Charter of Fundamental Rights, together with the fundamental right to data protection and many others.