The recent leak of a U.S. negotiating text related to TISA has caused some concern, in part due to its potential impact on EU data protection and privacy laws. The text can be found here, and is titled "Trade in Services Agreement TISA Proposal, New Provisions Applicable to All Services."
As everyone reading this blog probably knows, Article XIV of the GATS has an exception for certain policies related to data protection and privacy:
Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures:...
(c) necessary to secure compliance with laws or regulations which are not inconsistent with
the provisions of this Agreement including those relating to:
...(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
By contrast, in the leaked TISA text, there is no such exception. There is an exception provision, but it does not include data protection and privacy:
Article X.7: Exceptions
l. For greater certainty, Articles X.2 and X.3 do not apply to any obligation, commitment, undertaking, or requirement other than those set out in those articles.
2. Articles X.2 and X.3 do not preclude enforcement of any commitment, undertaking, or requirement between private parties, where a Party did not impose or require the commitment, undertaking, or requirement.
3. Provided that such measures are not applied in an arbitrary or unjustifiable manner, and provided that such measures do not constitute a disguised restriction on trade in services, Articles X.2 and X.3 shall not be construed to prevent a Party from adopting or maintaining a measure related to the conservation of living or non-living exhaustible natural resources.
4. Nothing in [Articles X.1 - X.6] shall be construed to prevent any Party from taking any action which it considers necessary for the protection of its own essential security interests.
This has led to criticism. Here is some commentary from Professor Jane Kelsey and Burcu Kilic, in which they note:
The scope of Article X.7 is much narrower than the general exception in the GATS or US FTAs. ... The exception in Article X.7 applies only to conservation of living and non-living exhaustible natural resources.
I don't know Jane (although I think many readers do), but I do know Burcu, and she is not a wild-eyed, protectionist, anti-trade zealot. She has some specific concerns, mostly about excessive IP protection, but other than than does not have a problem with trade agreements. So is she right to worry here?
I'm not so sure. If you look at the KORUS FTA (Article 23.1.2), while there is no exception provision as part of the chapter on cross-border trade in services, there is a separate chapter on exceptions that lays out the various policies that can be invoked as exceptions. For services issues, it simply incorporates the GATS exceptions.
If TISA were to take the same approach, and somewhere in the final text it incorporates the GATS exceptions, that should take care of the privacy concerns. (And I disagree that the GATS exceptions are "weak and self-cancelling").
On the other hand, as noted, the U.S. TISA proposal, unlike the KORUS cross-border services chapter, does have some explicit exceptions in there. So, it is possible that for this part of the TISA they think they have all the exceptions they need, and do not have in mind a cross-reference to the GATS in a separate exceptions chapter.
Right now, I think the answer on privacy in the TISA is that we don't know and we'll have to wait and see. However, if in the end there is not substantial policy space for protecting privacy, it is clear there will be serious criticism directed at TISA.
What all of this tells me is that increased transparency could help a lot. I understand that some things need to be kept secret as part of a negotiation. But the existence of an exception for privacy issues in TISA seems like something that could and should be discussed publicly.
