[IRPCoalition] NOTE - Analysis of the TPP e-commerce chapter

Carolina Rossini carolina.rossini at gmail.com
Sun Nov 8 16:56:19 EET 2015

---------- Forwarded message ----------
From: Burcu Kilic <bkilic at citizen.org>
Date: Sun, Nov 8, 2015 at 9:22 AM
Subject: [bestbits] The analysis of the TPP e-commerce chapter
To: "bestbits at lists.bestbits.net" <bestbits at lists.bestbits.net>

For those catching up on the Trans-Pacific Partnership (TPP) text, here are
is the analysis of the e-commerce chapter we sent around. It is a joint
publication of Public Citizen and Canadian Internet Policy & Public
Interest Clinic (CIPPIC) at the University of Ottawa Faculty of Law.


The chapter sets rules that, if ratified, will shape the development of the
digital economy for years to come. The clauses highlight the importance of
e-commerce and of eliminating trade restrictions by expanding the legal use
of e-commerce platforms, paperless trade administration, protecting users
from abuse and damages, and removing ‘non-tariff barriers’.

The chapter includes rules and procedures for trade in goods and services
conveyed by the Internet and other electronic means, and addresses a range
of issues including:

1-      No-discrimination policy for digital goods

2-      The first-ever trade obligation on cross-border transfer of data.
The provision includes a difficult to use and insufficient exception for
public policy measures (such as data protection). The exception language
has many layers of qualifications, which are similar to the general
exceptions adopted in Article XIV of the General Agreement on Trade in
Services (GATS) and Article XX of the General Agreement on Trade and
Tariffs (GATT). In only one of  44 cases ( 43 GATT & 1 GATS case), were all
conditions for application of a GATT or GATS general exception deemed
satisfied. Adopting a similar exception for WTO-plus rules in the TPP does
not safeguard privacy and individual liberties.

3-      The-first ever trade obligation prohibiting requirements that
servers be located (or data stored) locally. The provision also includes a
difficult to use and insufficient exception for public policy measures.
(See above).

4-      An inert mechanism for privacy which does no more than require the
presence of a ‘legal framework’ for protecting personal information. The
provision also encourages interoperability of privacy regimes, an approach
that has been used in the past to initiate a ‘race to the bottom’ whereby
the lowest standards from each jurisdiction are adopted

5-      An open access framework leaving open an entire universe of
discriminatory and innovation-harming activity that traffic carriers can
leverage and which regulators have found objectionable. The provision fails
to effectively address existing net neutrality problems. It only
meaningfully addresses the most egregious neutrality violations (those
relating to blocking of access to content) and even here broadly exempts
“reasonable network management”.

6-      A provision minimizing restrictions on the use of electronic

7-      A provision on spam resenting as alternative options but leaving
Parties with significant latitude in how they choose to regulate electronic

8-      A prohibition on requirements for disclosure of source code as a
condition of import, distribution, sale or use of software or of products
containing software (*does not operate so as to prevent a government from
obligating specific modifications of source code*)

9-      Cooperation in order to improve e- commerce and solve any related

The chapter should be read alongside each Party’s schedule of
non-conforming measures, which applies to some of the provisions.

The chapter does not apply to government procurement or information held or
processed by or on behalf of a Party or measures related to such
information and its collection, e.g. health data collected by the

Enjoy it,


*Burcu Kilic, Ph.D.   *

Public Citizen | Protecting Health, Safety and Democracy

*TEL: +1 202-588-7792 <%2B1%20202-588-7792>*

1600 20th St NW, Washington, DC 20009

*URL:* http://www.citizen.org/access

Twitter: @burcuno

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*Carolina Rossini *
*Vice President, International Policy*
*Public Knowledge*
*http://www.publicknowledge.org/ <http://www.publicknowledge.org/>*
+ 1 6176979389 | skype: carolrossini | @carolinarossini
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