By Heini Järvinen

In the EU-US trade negotiations (TTIP/TAFTA) the US tabled a proposal that would prohibit to require local data storage. If the EU accepts this proposal, the EU would give away an instrument essential to protect privacy.

On 5 March 2014 the Greens/EFA group in the European Parliament organised a meeting on the complex relationship between data protection, the Transatlantic Trade and Investment Partnership (TTIP), and the general context of EU-US relations after the Snowden revelations.

During the meeting EU commission trade negotiator Jan-Willem Verheijden said that privacy is not in the EU negotiating mandate. The EU did not table text. The US did table a proposal in the eCommerce chapter, with a general proposal on data flows, and a prohibition on parties to require local data storage.

So the problem is that privacy is not on the table in the TTIP negotiations, but data flows are, which indirectly brings privacy onto the table. Trade negotiations are not a good forum for policy development and privacy is not in the mandate. The only way to solve this problem is to keep  data flows out of TTIP.

Suspension of flows of personal data has to be possible. Particularly, but not only because privacy and data protection are fundamental rights in European law, ghe EU must be able to say: as long as our conditions are not met, personal data can not travel across the border. When this measure is executed, data will have to temporarily stay on a local server. This amounts to a temporary local data storage obligation, which would be in conflict with a prohibition on parties to require local data storage, unless this falls under a general exception or the right to regulate.

The general rule will become free flow of personal data and the EU may have an exception to protect privacy. Or may not. Who is going to decide on that? Arbitrators who are trade specialists, not human rights specialists and may find free flows of data more important than privacy. Or worse, investor-to-state dispute settlement tribunals. The EU would give away an instrument essential to protect privacy.

Trade negotiations are not a good forum to protect privacy. First, negotiators and companies work together to remove obstacles to trade. Companies want free flows of data across borders. For companies, anything that hinders free flows of data, is a trade irritant that should be removed. Second, trade negotiations take place behind closed doors. Citizens do not have access to draft texts. Companies have more access. Third, the commission created an expert group of 14 people, half business, half civil society, with greater access to information. This is a step in the right direction. But 7 people can not represent civil society and even they do not have access to the relevant texts. The devil is in the details. When texts are secret, it is impossible to give precise feedback. There is serious risk on badly drafted rules and definitions. After the negotiations are over, the Commission will publish a final text. This brings us to the ratification phase.

The European Parliament only has a yes or no vote. If a human rights impact assessment concludes there are human rights issues, there is no possibility to change the text, there is only a yes or no vote.

Trade agreements are a package, no amendments are possible. The political capital invested in TTIP is enormous. Even if the end result of TTIP is disappointing, the Commission will have to sell it as a success. In the ratification phase there will only be a yes or no vote and the pressure to say yes to TTIP will be enormous. There is a serious risk that badly drafted rules and definitions will slip through.

In conclusion, there are systemic issues with trade negotiations, with the ratification of agreements, and with the interpretation of agreements.

Inclusion of free flows of data in TTIP will make privacy an issue to be decided by TTIP dispute settlement tribunals. The EU will lose leverage needed to protect privacy. In addition, investor-to-state dispute settlement may further undermine privacy.

Full article ‘US wants to outlaw EU cloud in TTIP negotiations’ (06.03.14)
http://acta.ffii.org/?p=2050

Transatlantic Data Flows and the Trade and Investment Partnership (TTIP) (05.03.14)
http://www.greens-efa.eu/transatlantic-data-flows-and-the-trade-and-investment-partnership-ttip-11815.html http://greenmediabox.eu/archive/2014/03/05/transatlantic-data-flows/

The LIBE report on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs (21.02.14)
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A7-2014-0139&language=EN

(Contribution by Ante Wessels – FFII)