Trade treaty negotiations can remain secret, EU court rules

Leaks are becoming increasingly important to find how trade negotiations will affect online commerce, copyright and privacy

A cartoon released by Wikileaks, depicting the secrecy of the Trade In Services Agreement (TISA) negotiations

A cartoon released by Wikileaks, depicting the secrecy of the Trade In Services Agreement (TISA) negotiations

The European Union's top court has ruled that documents containing details of trade negotiations can remain secret, a decision that comes as a blow to those seeking more transparency in the negotiation of the treaties that are increasingly affecting e-commerce, online privacy, Internet copyright and other uses of IT.

The Court of Justice of the European Union on Thursday ruled against campaign group Corporate Europe Observatory (CEO) in a dispute document transparency. The group wanted the European Commission to share documents about a trade negotiation with India. However, the court upheld a ruling that allowed the European Commission to keep hidden from the public documents that it had shared with big corporate lobby groups.

Trade negotiations are shrouded in secrecy and documents about the progress made are almost never shared with the public. Many negotiations cover a wide range of topics that often touch on the digital world, ranging from net neutrality to data protection issues and powers governments want to have over the Internet.

Due to the secrecy, it often takes years for the public to find out what exactly the governments are planning to agree. This was shown again on Wednesday, when Wikileaks released a trove of secret documents from the ongoing TiSA (Trade In Services Agreement) negotiations between the U.S., the EU and 23 other countries.

In an annex about e-commerce that dates back to February 2013, plans were revealed to oblige countries to allow personal data gathered by companies to flow freely across borders without any restrictions. These plans were still alive in April 2014, a document leaked last December containing U.S. proposals showed.

The U.S. proposal would also require countries to give consumers some net neutrality protections, but would allow "reasonable network management."

The document published by Wikileaks also revealed an apparent effort to prevent the use of open-source software. A proposed article reads: "No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory." This proposed rule should be limited to mass-market software and should not include software used for critical infrastructure, the document said.

Without the leaks however, the general public would never have known that these plans even existed. And though they are public now, there is no way to know what the current plans being discussed by ministers in Paris this week are.

The disclosure of trade negotiation documents can have a major impact on government plans. In 2012, the EU killed ACTA, the Anti-Counterfeiting Trade Agreement, after major concerns were raised over the treaty's digital chapter. Opponents warned ACTA could lead to widespread monitoring of the Internet and would leave the door open for countries to force ISPs to police their users.

Thursday's CJEU ruling risks deepening the secrecy shrouding EU trade policy, as the court confirmed that the Commission did not violate EU access to documents rules, campaign group CEO said, adding that it is particularly baffling that this ruling comes during growing public pressure against the current direction of trade policy.

The group though said it would continue to put pressure on the Commission with other groups. Main focus at the moment are the Transatlantic Trade & Investment Partnership (TTIP) trade talks between the EU and the U.S. Those negotiations are heavily criticized because of plans to introduce a so-called investor-to-state dispute settlement (ISDS), that would allow companies to sue a country for compensation if that country seizes an investment made by the company in that country.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, online payment issues as well as EU technology policy and regulation for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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