Leaked Details for New Corporate Deal Would Undermine Regulations Around World

This article first appeared at the District Sentinel.

According to a leaked copy of a draft, the terms of trade deal on services involving the US, EU, Japan, and over two dozen other countries could make it practically impossible for governments to regulate certain foreign companies.

The Trade In Services Agreement (TISA), as drafted, would forbid parties from requiring service providers “to establish or maintain a commercial presence, or to be resident in the Party’s territory,” according to the documents published Wednesday.

A pair of experts privy to the agreement prior to its unauthorized release, University of Auckland law professor Jane Kelsey and Public Citizen digital rights advocate Burcu Kilic, said that enforcing current regulations is already difficult “where foreign firms can minimize their local legal presence and capital backing.”

“Governments can and do seek to make regulation more effective when there is a local presence,” Kelsey and Kilic said.

The pair also noted that the draft, if adopted, could hinder consumer protections online.

One draft provision that could potentially undermine privacy protections states that “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.”

Another provision on “reasonable network management”–described by Kelsey and Kilic as “opaque”–could undermine Net Neutrality regulations.

TISA, the duo said, would “consolidate data repositories” to benefit corporations and entities with “national security” interests. They claimed the deal “has broader based goals to protect US competitive advantage and monopoly rights over intellectual property and technology.”

The purported leak was published by the Associated Whistleblower Press, an international non-profit that describes itself as committed to “promoting transparency, freedom of information and speech, whistle-blowing and investigative journalism.”

The agreement was allegedly drafted on April 25. The US Trade Representative (USTR) did not respond to a request for comment

Preliminary negotiations over TISA launched in February 2012. In addition to the US, EU member states and Japan, parties to the talks now include Australia, Canada, Chile, Colombia, Costa Rica, Hong Kong, Iceland, Israel, Liechtenstein, Mexico, New Zealand, Norway, Pakistan, Panama, Paraguay, Peru, South Korea, Switzerland, Taiwan, and Turkey.

The talks are being negotiated under a cloak of secrecy. One clause noted that the terms of the entire deal would only be declassified “five years from entry into force of the TISA agreement.” Failing an accord, the provision mandates that details of negotiations would remain secret “five years from the close of the negotiations.”

A similarly-leaked document on the agreement’s financial services annex published in the summer by WikiLeaks had similar confidentiality provisions.

In 2012, then-USTR Ron Kirk told Reuters that multilateral trade deals “have to preserve some measure of discretion and confidentiality” to have any chance of passing.

Read a copy of the leaked agreement here.

Read Kilic and Kelsey’s paper on the TISA language here.

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