A Delicate Balance: Are Trade agreements the best place to balance Internet Freedom and Internet Security?

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This paper discusses how policymakers are increasingly using trade agreements to discuss a balance between internet freedom and internet security.
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  Susan Ariel Aaronson is Associate Research Professor, George Washington University andResearch Fellow, World Trade Institute. Page 1 Trade and the Internet Susan Ariel Aaronson*In its relatively short history, the Internet has morphed from a source of information to a multidimensional market for goods, services and ideas. One quarter of the worlds people search for jobs and spouses, share information, and learn new skills onthe web. The Internet has increased economic growth, expanded access to informationand improved the rule of law within and between nations. In so doing, the informationsuperhighway has altered what and how we trade as well as who we trade with. Notsurprisingly, the internet has become an issue for trade negotiators. Policymakers havestruggled to ensure that trade policy keeps pace with web developments.Unfortunately, at the same time the Internet has provided these positive benefits,the information superhighway has also become a battlefield. Firms, governmentagencies, and individuals probe each others web sites, and they also seek protection fromprivacy violations, data theft, counterfeit and rogue web sites and computer intrusions. 1  Democratic and authoritarian governments alike use security software to restrict andeven disrupt the free flow of online information. In so doing, these states may make the web more secure but they may also undermine privacy rights and freedom of expressionfor net users (netizens). Although US and European firms are often the principaldefenders of an open internet, US, Canadian and European firms provide much of theinfrastructure as well as censor ware or blocking services to their home governments and  Susan Ariel Aaronson is Associate Research Professor, George Washington University andResearch Fellow, World Trade Institute. Page 2 repressive states such as Iran, Russia, and China. 2 In short, Western business has becomeboth a demandeur of an open internet as well as a supplier of tools to censor it. Notsurprisingly, trade policy reflects that contradiction.Policymakers are struggling to define a clear and universally accepted set of rulesto maintain an open and secure internet. The US provides an example of policy incoherence. In May 2011, the US announced an official International Strategy forCyberspace. In July 2001, the Defense Department released its cyber strategy noting thatthe US military would defend U.S. networks while taking offensive actions (such asprobing) when needed. 3 But the US has not clearly defined when it can/will attack and which entities--governments, firms, civilians--will be warriors in this fight. Such clarity isimportant because in most NATO countries, the military depends on the private sector toprovide energy, transportation, telecommunications services, and financialinfrastructure. 4 In recognition of this close relationship and in response to Chinese (andother government) cyberattacks on nongovernmental entities such as firms anduniversities, the US now requires all publicly traded companies to disclose material cyberrisks (risks that could present a severe financial threat to the firm.) 5 These risks couldinclude security breaches, deliberate attacks to steal assets, intellectual property, orhacker efforts to disrupt operations. 6 Thus for the US, Internet security is now a nationalsecurity issue.US trade policies also send a mixed message. On one hand, the US has takenmany steps to ensure an open internet. Policymakers proposed language in the  Susan Ariel Aaronson is Associate Research Professor, George Washington University andResearch Fellow, World Trade Institute. Page 3 Transpacific Partnership (a trade agreement being negotiated by 9 countries borderingthe Pacific) to prohibit signatories from blocking internet data flows and fromestablishing local infrastructure mandates for digital service providers. The US also leadsa global effort to help dissidents undermine government efforts to suppress citizens voiceor access to information. Secretary of State Clinton has given numerous speeches arguingthat internet freedom is a key element of US foreign policy. In addition, the USgovernment helped to establish the Global Network Initiative, a multisectoral partnershipamong business, human rights groups, academics, and other interested parties. TheInitiative has developed principles to guide the information technology industry on howto respect, protect and advance freedom of expression and privacy, when faced withgovernment demands for censorship and disclosure of users personal information.On the other hand, the US is negotiating agreements and devising policies thatcould reduce internet freedom. According to the US Trade Representative, the Anticounterfeiting Trade Agreement, signed by the United States, Australia, Canada,Korea, Japan, New Zealand, Morocco, and Singapore on October 1, 2011, is designed toaddress the problem of infringement of intellectual property rights in the digitalenvironmentin a manner that balances the rights and interests of the relevant rightholders, service providers, and users. But some observers note that in fact, it could holdservice providers liable for criminal cyber activity by their business and individualcustomers. Moreover, the US Trade Representative is studying whether it could challengeChinese internet restrictions as a violation of international trade rules. However, the US is  Susan Ariel Aaronson is Associate Research Professor, George Washington University andResearch Fellow, World Trade Institute. Page 4 unlikely to take this route, as policymakers would not want to create precedents thatcould limit the US or its allies ability to restrict access to the Internet for nationalsecurity reasons.) 7 Finally, Congress is considering bipartisan legislation that would allowtheU.S. Department of Justice, as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Some critics fear thatthe bill, as currently written, could undermine user generated content, freedom of expression, and existing policies of determining copyright and privacy. 8   How can policymakers achieve the right balance of internet security and freedomand make that framework enforceable globally? At first glance, the WTO might be themost appropriate regulatory platform. One hundred and fifty five member states havecommitted to respect WTO principles. The WTOs General Agreement on Trade inServices (GATS) covers some internet related trade issues, and includes provisions thatcould effective balance Internet openness and security. The agreement recognizes thatthere are times when nations would need to censor or block products or ideas at theirborders. But the GATS also states the public order exception may be invoked only wherea genuine and sufficiently serious threat is posed to one of the fundamental interests of society. 9  On the other hand, the WTO might not be the most effective venue to balanceInternet freedom and security. First, the GATS regulates the behavior of states, notindividuals or firms. Individuals and firms have no way to directly represent theirinterests. Moreover, although transparency is a principal norm of the WTO, its  Susan Ariel Aaronson is Associate Research Professor, George Washington University andResearch Fellow, World Trade Institute. Page 5 agreements say nothing about data privacy, human rights, or cyber security. Negotiationsamong member states often take years, and are kept secret unless member states chooseto reveal their positions. In general the public is uninvolved in and uninformed about WTO negotiations, agreements, and day to day activities. Hence it appears the Internetculture of universal access, open standards, freedom of expression and no one in control,is at odds with the culture of the WTO.If the WTO is not the best regulatory platform, policymakers might turn to theInternet to develop a new regulatory approach that allows open and secure access,encourages innovation, protects freedom of expression, and respects the privacy of webusers. They might consider crowd sourcing, asking interested parties to develop andassess alternative ideas. Crowd sourcing can be problematic, as crowds can turn intolynch mobs or rely on uneducated opinions. But crowd sourcing can also transcendindividual bias and foster creative compromise and responsible decisionmaking.Policymakers have already turned to crowd sourcing to review patents and to gain publiccomment on the proposed ATT/T-Mobile merger. This strategy may also build publicsupport for a new approach to Internet governance--having participated in thedevelopment of these policies; the public may feel greater ownership of these policies.Ironically, net values of open standards, freedom of expression, and universal accessmight help officials develop not only a new approach to trade policymaking but betteraccepted trade policies to govern the Internet. E ndnotes
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