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The tipping point

So it's treaty time again. Tomorrow, October 11, 2014, will see protests in myriad European cities over the Transatlantic Trade Investment Partnership (TTIP, formerly known as TAFTA, for Transatlantic Free Trade Area), a treaty between the EU and US intended, so they say, to ease the free flow of trade by "harmonizing" impedimentary regulations.

Negotiations have been proceeding for more than a year. October 3 saw the conclusion of the seventh round of talks.

At this point, it's traditional for net.wars to highlight the main points of the proposal under discussion. And herein lies the first problem: we don't exactly know. We can speculate, based on leaks of portions of early drafts of this and similar treaties. But the actual text is secret. So secret, in fact, that even members of Congress were excluded. Even if the provisions were wholly benign this would be clearly wrong, given the agendas of organizations that have been consulted: the Business Software Alliance, for example.

It seems unlikely that the treaty's provisions *are* wholly benign; its opponents cover a wide range from labor unions to charities such as War on Want to those concerned about protecting the NHS, thought to be a target for US heathcare companies yearning for European markets.

The EFF's analysis of leaked documents from the separate Trans-Pacific Partnership (TPP) negotiations gives us some idea of negotiating parties' wishlists. More recently, EFF has said that, copyright is now out of TTIP - but, as it also says, other forms of IP law whose expansion could be damaging to the public interest, may still be in, such as trade secrets and patents.

Advocates of the public domain and intellectual property reform twitch nervously when they hear the word "harmonize" because that word has provided the justification for so many recent expansion efforts. This is how 21st century policy laundering works: policies are shopped to countries one is found to adopt it; then its promoters push the others to harmonize with that one. Some years back, the Canadian legal scholar Michael Geist tracked down the source of the most frequently-cited copyright policies - and found that just two organizations were responsible for most of the reports behind them.

The general expectation is that the treaty has in its sights a number of areas where EU and US standards conflict with each other, such as data protection and privacy, and chemical and food safety, including genetically modified organisms. As speakers including Hilda Palmer, Sam Lowe, and Linda Kaucher explained at an event on Monday (the video is here), the difference between EU and US approaches to food and chemical safety is the equivalent of guilty until proved innocent versus innocent until proved guilty. The EU requires the producers of new chemicals and organisms to prove that they are safe; the US takes a science-based approach that so far has permitted the distribution and use of vastly more new chemicals than the EU. In data protection and privacy the difference is better-known: the EU's efforts at negotiating data protection reform have been in the sights of the large US data-driven companies throughout the last couple of years. Monday's meeting also raised financial services as one other area of significant disparity. There, the US's regulatory regime is seen as the stronger one. One might hope that the best regime will win, but the most likely scenario is a corporate grab for the most profitable one.

There is a further sting in the treaty's tail, known as "ISDS", for Investor-State Dispute Resolution, which is designed to strengthen corporations' ability to sue governments over regulations their investors don't like. There are already such cases active: a tobacco company is suing the Australian government over its plain packaging law; the Swedish company Vattenfall is suing Germany for more than $3.7 billion over the decision to phase out nuclear power. Yes: we live in a world where a democratically elected government can be required to spend billions of taxpayers' money to defend itself for making decisions they support.

Treaties are, as ORG's Jim Killock keeps saying, stiff and unresponsive legal instruments. Once a treaty is in place, pre-empting it to change national-level policy in the areas it covers becomes increasingly difficult.

Some people find comforting analyses like this one, which suggests that we shouldn't worry too much about TTIP because the UK won't lose much from it. Treaties have too long a life to make such a statement. What's that old saying? That if you can't tell who the mark is in a poker game it's you?

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


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