infoJustice

A workshop hosted by Electronic Frontier Foundation discussed the opportunity to use any WTO engagement with E-Commerce rules to expand transparency and participation processes for internet companies and users, academics and the greater public.

My intervention at that panel discussed at least three major goals that the WTO may have in constructing a more open discussion of E-Commerce rules:

• Legitimacy: E-Commerce discussions on issues like net neutrality, data localization and the scope of permissible privacy regulation affect consumers generally. But international negotiations are perceived to be distant from effective control by representative democracy. Increased transparency and proxy representation through NGOs becomes necessary to give the broader public a reason to trust the process to reach the right outcomes. (See Jeremy Malcolm http://digitalcommons.wcl.american.edu/research/6/ ).
• Avoidance of Capture. Moneyed interests are already highly involved in trade negotiations, including through special consultative processes in-country (such as through the Industry Trade Advisory Committees of the US Trade Representative). Transparency and participation mechanisms are needed to prevent the capture of negotiations by these interests. In particular, the interests of users not always align well with those of platforms or content producers on the internet. (See Margot Kaminski, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354324 ).
• Access to expertise. Trade negotiators are not experts on the internet. And experts in industry that trade negotiators commonly consult are not fully versed in (nor do they have the interest to represent) the impacts of policy on user communities. Transparency and participation mechanisms are necessary to ensure that experts serving users – commonly housed in internet policy NGOs – can contribute useful information and analysis into the process of E-Commerce discussions. (See David Levine http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038020 ).

Different transparency and participation mechanisms can be created to serve the different interests. As the table below compares some of the tools habitually used by four norm setting processes:

• US domestic administrative law as set by the Freedom of Information Act, Federal Advisory Committee Act, and Administrative Procedures Act
• Free Trade Agreements that have discussed E-Commerce issues, including in the Trans Pacific Partnership Agreement, Trade in Services Agreement and Trans-Atlantic Trade and Investment Partnership
• World Trade Organization Doha Round negotiations
• World Intellectual Property Organization Marrakesh Treaty Negotiation