One of the United States government's priorities in Internet policy is encapsulated by a term that's recently been making the rounds; the "free flow of information." It appears almost every time U.S. officials describe how they intend to protect the free and open Internet, especially when it comes to international law. The general idea is that bits of online data should not be discriminated against, hindered, or regulated across national boundaries. As a general principle, this sounds positive. It could be a helpful antidote against arbitrary data localization rules that threaten to break up the global Internet, or attempts by governments' to block and censor foreign websites using nationwide filters. At least, that is the claim that officials such as the U.S. Trade Representative Michael Froman have made, saying, with reference to the TPP:
And we will continue to press our partners to allow digital information to cross borders unimpeded. We are working to preserve a single, global Internet, not a Balkanized Internet defined by barriers that would have the effect of limiting the free flow of information and create new opportunities for censorship.
But does this rhetoric always represent a real commitment to advancing freedom of expression online? We can find the answer by looking and how the free flow of information has been enshrined in the Trans-Pacific Partnership Agreement (TPP). In TPP, it's not quite such the high-minded ideal. Instead, it slants Internet regulations towards business interests, while doing very little in practice to counter human rights issues like government censorship.
Trade agreements like the TPP and the Trade in Services Agreement (TISA) already carry free flow of information rules (and we expect it to appear in the Transatlantic Trade and Investment Partnership [TTIP] as well). In a trade context, free flow is intended to be make a link between the ideal of free trade and eliminating obstacles to global commercial exchange, and the issue of whether nations can restrict the movement of data to within their borders: for instance, by passing data localization statutes.
Beyond the narrow issue of data localization, however, the free flow of information policies we've seen and analyzed in existing international treaties fails to meaningfully protect free expression and access to knowledge, the fundamental rights that such "free flow of information" might be expected to uphold in the first place. Many groups are concerned that these trade treaty provisions could even be used to undermine other fundamental rights: for instance, by claiming that privacy laws such as the European Union's data protection regulations are a violation of free trade, since they impose conditions on the transfer of personal data outside the EU.
The TPP illustrates these shortcomings well. Its free flow of information rules would only be enforced for foreign enterprises, and only those entities based out of countries that have signed the TPP. So if a country were to enact a law banning some type of online content, the TPP's free flow of information rules would do nothing to prevent the enforcement of that censorship against websites or platforms that are locally-owned in that country. Likewise, the trade agreement's rules would be unenforceable against the censorship if the government were demanding content be removed from platforms operated or owned by a company based outside of the twelve TPP countries.
Take for example, Malaysia, which is a signatory to the TPP. The country intensified its censorship of news and criticism since last summer, when a national scandal broke out over allegations that the Malaysian Prime Minister had misappropriated $700 million from a state development fund. Following Malaysia's more recent censorship of one of the country's major news outlets, the Malaysian Insider, the U.S. State Department denounced these policies in a public memo it sent last week, asking them to "fully respect freedom of expression, including the free flow of ideas on the internet." The phrasing of the State Department's request prompted some to speculate whether the TPP could be used to thwart this kind of censorship by signatories to the TPP in the future.
But the TPP's free flow of information rules would have little effect on such blockages or the removal of online content. The rule cannot apply to the government's journalistic suppression against the Malaysian Insider because the newspaper is a Malaysian publication, and therefore not a “covered person” under the TPP's definition. It would also not be applicable to the government's blocking of the Sarawak Report, which is operated out of the United Kingdom, a country that is not involved in the TPP.
If the Malaysian government began imposing blocking orders on U.S.-based companies, such as Twitter or Facebook, it's feasible that once the TPP were to go into force that those companies could convince the U.S. government to bring a trade complaint under the free flow of information provisions to shield them from such an order. However, the Malaysian government could defend itself against such a claim by arguing that its censorship was “to achieve a legitimate public policy objective,” such as national security or the defense of public morals. The TPP allows this as an exception to the free flow rules. Even if such a claim were brought, it would be heard by international trade arbitrators, who are not human rights experts. So of course this would hardly be an appropriate venue for hearing global Internet censorship disputes.
“Free flow of information” as a political term has been adapted to play two very different roles in international relations. Outside the world of trade, it is a human rights issue, meant to challenge the idea of national censorship and the fragmentation of the Internet. Inside the narrower and closed context of trade agreements, however, it is used exclusively to tackle the commercial consequences of restrictions on data flows, like data localization and national privacy laws.
Once again, the values of trade agreements and the wider values of the Internet are a clumsy and incomplete match. That is why the TPP and other trade agreements that try to tackle Internet issues under the guise of trade, remain bad for the Internet and bad for individual Internet users.
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Are you in the U.S.? If so, take action now and call on your Congress members to hold congressional hearings about the contents of the TPP immediately, and demand that they reject the deal when the agreement comes up for an eventual ratification vote:
