Counter Punch | December 30, 2014
The Trade In Services Agreement
Goodbye Privacy, Hello Censorship
by PETE DOLACK
Internet privacy and net neutrality would become things of the past if the secret Trade In Services Agreement comes to fruition. And on this one, the secrecy exceeds even that shrouding the two better-known corporate giveaways, the Trans-Pacific and Transatlantic partnerships.
Yet another tentacle in the octopus of multi-national corporations’ attempt to achieve dictatorial control, the Trade In Services Agreement (TISA) is intended to eliminate government regulations in the “professional services” such as accounting and engineering but goes well beyond that, proposing sweeping de-regulation of the Internet and the financial industry.
Another snippet of TISA’s text has been leaked, this time by the freedom-of-information organization Associated Whistleblowing Press. Without this leak, and an earlier leak published by WikiLeaks in June 2014, we would know absolutely nothing about TISA and its various annexes. No matter what a negotiating government might claim about it, should one actually deign to discuss it, TISA is not about your right to hire your accountant of choice. Here is Article X.4 on “movement of information”:
“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.”
What that proposal means is that any regulation safeguarding online privacy would be deemed illegal. (“Party” in the quoted text refers to national governments.) European rules on privacy, much stronger than those found in the United States, for example, would be eliminated. Further, any rule that in any way mandates local content (Article X.2) or provides any advantage to a local technology (Article X.3) would also be illegal. Thus the domination of U.S.-based Internet companies, such as Google or Facebook, would be locked in, along with their vacuuming of your personal data. A French anti-dumping law intended to help bookstores withstand predatory practices by Amazon.com is the type of law likely to come under attack.
What this has to do with the provision of “professional services” is not clear. TISA seems intended to be a catch-all to eliminate regulation and allow multi-national corporations to muscle their way into as many areas as possible unimpeded, and the benign-sounding surface purpose of liberalizing access to foreign engineers may be intended as a wedge to force open all barriers to corporate profiteering.
Taking aim at net neutrality
The text is written in sufficiently ambiguous language that net neutrality seems strongly at risk. A reference to “open networks” contains the caveat that Internet usage is “subject to reasonable network management.” An analysis prepared by Professor Jane Kelsey of the University of Auckland and Burcu Kilic of Public Citizen in Washington says:
“ ‘Reasonable network management’ is code for an exception to ‘net neutrality,’ whereby everything on the Internet is treated the same. There is no guidance on the meaning of ‘reasonable network management.’ The concept has been highly controversial when the US Federal Communications Commission (FCC) proposed it in the US. The FCC says it ‘consists of practices which are reasonable,’ which is a vague and circular meaning that could be a rubber stamp for anything the network operator wants to do.” [page 22]
U.S. telecommunications corporations bitterly oppose net neutrality because, under this principle, they can’t speed up or slow down online content according to who pays them, or doesn’t, for special treatment. And any dilution of net neutrality opens the floodgates to censorship of the Internet, whether government or corporate.
The analysis by Professor Kelsey and Dr. Kilic discerns three broad goals of TISA on the part of the U.S. government, which is pushing hardest for it, as it does with other “free trade” agreements:
*To advance the commercial interests of its services industry that supplies services across the border. There would be particular gains to the information telecommunications and technology sector, but would protect U.S. competitive advantage and monopoly rights over intellectual property and technology.
*To serve “a range of ‘national security’ and commercial purposes” by consolidating data repositories to the benefit of the U.S. government, transnational companies and third-party commercial interests.
*To prevent or restrict government regulation that impedes the activities and profits of the major global services industries, and guarantees unrestricted cross-border movement of data.
A letter sent to TISA negotiators by 342 civil society groups based in Europe and elsewhere in 2013 asking that the negotiations be immediately halted, states:
“The proposed TISA is an assault on the public interest as it fails to ensure that foreign investments in service sectors actually promote public goals and sustainable economies. We are particularly wary of further undermining of essential services such as health care and insurance, water and energy provision, postal distribution, education, public transportation, sanitation, and others if they are handed over to private and foreign corporations motivated only by profits and available only to those who can pay market rates.”
Restrictions on the financial industry would be illegal
TISA, as revealed by WikiLeaks in June, also would require signatory governments to allow any corporation that offers a “financial service” — that includes insurance as well as all forms of trading and speculation — to expand operations at will and would prohibit new financial regulations. These offensives are incorporated in TISA’s Financial Services Annex, which would:
Require countries to change their laws to conform to the annex’s text (Annex Article 3).
Require countries to “eliminate … or reduce [the] scope” of state enterprises (Article 5).
Prohibit any “buy local” rules for government agencies (Article 6).
Prohibit any limitations on foreign financial firms’ activity (articles 7 and 10).
Prohibit restrictions on the transfer of any data collected, including across borders (articles 8 and 11).
Prohibit any restrictions on the size or expansion of financial companies and a ban on new regulations (Article 15).
Require any government that offers financial products through its postal service to lessen the quality of its products so that those are no better than what private corporations offer (Article 22).
The ninth, and most recent, round of TISA negotiations took place on December 1 to 5 in Australia. In a typically bland statement providing no actual information, the Australian government said:
“Good progress was made in advancing the enhanced disciplines (trade rules) for e-commerce and telecommunications, domestic regulation and transparency, financial services, temporary entry of business persons, professional services, maritime and air transport services and delivery services. There was also further discussion of proposals on government procurement, environmental and energy services, and the facilitation of patient mobility. Parties reported on progress in bilateral market access discussions held since the September Round and committed to advance these further in 2015.”
Canberra’s likely overstating of “progress” is nonetheless more than is offered by other governments. The office of the United States Trade Representative, for example, last issued a public update about TISA negotiations in November 2013, and then merely said that the then-latest round of talks “was positive and productive.”
Tightening secrecy of “free trade” agreements
The next round of TISA negotiations are scheduled for Geneva February 9 to 13, 2015. Fifty countries are negotiating TISA, including the 28 countries of the European Union, which are collectively represented by the unelected and unaccountable European Commission. Among other countries are Canada, the United States, Australia, New Zealand, Japan, Norway and Switzerland. The negotiating countries, with perhaps more transparency than intended, refer to themselves as the “Really Good Friends of Services.” Good friends of working people they are not.
Although any sections detailing enforcement have yet to be leaked, TISA would likely depend on the “investor-state dispute mechanism” generally mandated in “free trade” agreements. Deceptively bland sounding, the mechanism is a secret tribunal to which a “dispute” is sent when a corporation wants a safety or environmental regulation or law changed so as to increase its profits. One of the most frequently used of these tribunals is an arm of the World Bank.
Many of the judges who sit on these tribunals are corporate lawyers who otherwise represent corporations in similar disputes with governments, and there is no appeal to their decisions. These rulings become a benchmark for subsequent disputes, thereby pushing the interpretations further in favor of multi-national capital.
That the Trade In Services Agreement, or the Trans-Pacific Partnership, or the Transatlantic Trade and Investment Partnership, or the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), have to be negotiated in total secrecy, with only corporate lobbyists having access to texts or meaningful input, speaks for itself. The empty shell of formal democracy under capitalism gets ever emptier.
Pete Dolack writes the Systemic Disorder blog. He has been an activist with several groups.