Originally published on July 2, 2014
Tim Berners-Lee, the architect of the World Wide Web, taught us that the Internet we have is a function of the choices we (users, companies, policymakers etc…) make about information flows. As an example, in 1995, Berners Lee chose not to patent his work on the World Wide Web because he feared patenting could limit the universality and openness of the web. He continues to advocate. In March 2014, he called for an online bill of rights and created a new organization to ensure that the web would remain the “web we want”—open, free and neutral. With his actions, Tim Berners-Lee has shown us that it is not easy to set information free.[1]
Policymakers also must make tough choices about information flows. On one hand, they want to encourage the free flow of information in the interest of educational, technological and scientific progress. On the other hand, they need to control and at times limit the free flow of information, in order to achieve important policy objectives including maintaining Internet resiliency; preventing spam, piracy, and hacking; protecting national security and privacy; and protecting intellectual property. They struggle to balance, let alone achieve these goals.[2]
In my research I examine how the U.S. and the EU tried to use trade policies to advance the free flow of information while simultaneously taking other steps to control or block the free flow of information. Policymakers turned to trade rules because information often flows across borders; moreover trade agreements are binding and enforceable.
However, the free flow of information affects many other policies beyond trade, including human rights. In 1946, the UN General Assembly adopted Resolution 59 (I); members stated that “freedom of information is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated.” Under international human rights law, states are obligated to take practical steps to give effect to the right of freedom of information, but may also restrict freedom of information in order to respect the rights or reputations of others, protect national security and public order, and protect public health or morals.[3] Hence, the free flow of information is also a security,[4] trust, foreign policy, and governance issue.
Information is also a global public good that governments should provide and regulate effectively. Because the benefits of a public good are available to everyone (no one can be excluded), private companies and individuals often need incentives to provide new information. Moreover, everyone is hurt when individuals, companies or governments horde or hide information (Maskus and Reichman: 2004, 284-285; Kahn: 2009). The Internet has made it cheaper and easier to trade information (such as digital news, data, and entertainment); to collaborate and work across borders; and to fund and sell goods and services across borders (McKinsey: 2014). If governments and their citizens could devise shared rules to encourage the free flow of information, more people would have greater access to information, and more information would be created and exchanged (McKinsey: 2014, Tietje: 2011).
Since the first years of the 21st century, business leaders, policymakers and activists have tried to create shared principles to encourage information flows. They began by developing principles to guide their behavior at the OECD, APEC and other venues. But these principles are voluntary and not universal. Meanwhile, some academics and companies began pushing for very specific language in trade agreements; they wanted to promote the free flow of information and limit trade barriers to the free flow of information (Kommerskollegium: 2014).
Today, data flow issues are key components of 3 ongoing negotiations: The U.S. and the 27 nations of the EU have been negotiating T-TIP (the Transatlantic Trade and Investment Partnership; the U.S. and 10 other nations bordering the Pacific have been negotiating the Trans-Pacific Partnership (TPP); and some fifty members of the WTO (including the 27 EU) are negotiating the Trade in Services Agreement of the WTO (TISA). However, many governments have not responded positively to U.S. and EU efforts to set information free. Officials and citizens from these governments worry about their ability to control or limit information flows as well as their dependence on U.S. companies to provide web services (which often must comply with U.S. rules on privacy and national security.) Some scholars note that the U.S./EU approach appeared hypocritical and inconsistent. The U.S. controls the free flow of information to protect intellectual property and national security but labels it protectionist when others do so. The EU controls the free flow of information to protect intellectual property, to protect privacy, and to prevent holocaust denial and hate speech (Aaronson and Townes: 2012, Aaronson and Maxim: 2013). Moreover, neither the U.S. nor the EU link policies to promote the free flow of information with policies to advance Internet freedom; both seemed to develop policies in bureaucratic silos, without weighing how such policies might affect the Internet as a whole. In June 2013, after important media outlets publicized the revelations of former NSA analyst Edward Snowden (Davies: 2014), internet activists began to point out the contradictions in U.S. and EU policies.
As of this writing, June 2014, the EU, the U.S. and their negotiating partners have been unable to find common ground regarding how to promote the free flow of information; limit information flows in the name of national security; and protect privacy. The U.S. and the EU are also divided over when to restrict (or censor) information; whether localization of servers is protectionism; and whether U.S. and EU firms should export Internet related technologies (from servers to malware) that could be used to undermine the human rights of information online, while allowing exceptions to protect national security; public information, while allowing some exceptions to the free flow in the interest of protecting national security, public morals; or public health.[5] But in 2013, we learned that the U.S. National Security Administration (and those of several other countries) had taken steps that limited, hijacked or transformed information flows. Some states including several EU countries found in the Snowden revelations an opportunity to wrest greater market share from U.S. internet dominance. Hence, although these states generally support free flow, they also adopted policies that some labelled data protectionist or data nationalism. Consequently, I argue that trade agreements have yet to set information free and may in fact be making it less free.[6]
Nonetheless, U.S. and EU trade policies are a work in progress; you and I can still have significant influence over their direction. We can encourage trade officials to think more holistically about the balance between the free flow of information and the need to control information flows in the name of privacy and national security. Policymakers should begin by developing shared principles for maintaining the One Global Internet and to delineate steps to take when countries do not live up to these principles. Secondly, governments should include language in trade agreements that relate to the regulatory context in which the Internet functions including free expression, fair use, the rule of law, net neutrality, and due process. Finally, when they negotiate trade agreements, policymakers should use language to encourage interoperability.
For more information about trade and information flows, view the Prezi at http://www.gwu.edu/~iiep/governance/taig
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2011112
Susan Ariel Aaronson is Research Professor of International Affairs at GWU, where she directs the Trade and Internet Governance Project. She also directs a fellowship program-the eBay Policy Scholars. Her current research looks at government creation, purchase, and use of malware and its implications for economic growth, trust, and human rights.
[1] Joe Mullin, “Tim Berners-Lee Takes the Stand to Keep the Web Free,” Wired, 2/08/12,
http://www.wired.com/2012/02/tim-berners-lee-patent/, last searched 6/15/2014; on Lee in 2011, see Tim Berners-Lee: Spies’ cracking of encryption undermines the web,”
and Jemima Kiss, “An online Magna Carta: Berners-Lee calls for bill of rights for web,” The Guardian, http://www.theguardian.com/technology/2014/mar/12/online-magna-carta-berners-lee-web,
Last searched 6/18/2014.
[2] Tietje notes that this challenge is not new; nations had to collaborate to deal with Morse code, the telegraph and the first transatlantic cable from 1858-1866 (Tietje:2011).
[3] Toby Mendel, “freedom of Information as an Internationally Protected Human Right, ND, http://www.article19.org/data/files/pdfs/publications/foi-as-an-international-right.pdf.. The limitations on freedom of expression are spelled out in Article 19 (3) of the International Covenant on Civil and Political Rights of the Universal Declaration of Human Rights. See Article 19, “Limitations,” http://www.article19.org/pages/en/limitations.html, last searched 6/24/2014.
[4] Tim Berners Lee, an engineer widely credited with creating the concept and protocols of the Internet has outlined the security risks to the Internet. http://www.w3.org/Security/faq/wwwsf1.html#GEN-Q1
[5] NA, “US Tables New TISA Proposal to Ensure Free Flow of Data,” 5/15/2014, http://insidetrade.com/Inside-US-Trade/Inside-U.S.-Trade-05/16/2014/us-tables-new-tisa-proposal-to-ensure-free-flow-of-data-network-access/menu-id-710.html. On TTIP, see http://ec.europa.eu/trade/policy/in-focus/ttip/. On TISa negotiations, pl. see Department of Foreign Affairs and Trade, Australia, “Trade in Services Agreement (TiSA),” https://www.dfat.gov.au/trade/negotiations/services/trade-in-services-agreement.html#membership; and on TPP, see https://www.dfat.gov.au/fta/tpp/, all last searched 6/18/2014.
[6] Much of the initial research in this article was based on a study funded by the Ford and MacArthur Foundations, as well as the Minerva Initiative, “Can Trade Policy Set Information Free? Trade Agreements Internet Governance and Internet Freedom: 2012).
