Right to Privacy in Trans-Pacific Partnership (TPP ) Negotiations

The Office of the U.S. Trade Representative (USTR) has declared an intention to have all its proposals on intellectual property protections by the commencement of the next round of TPP talks in Vietnam June 20-24, 2011. On a fast timetable, TPP negotiators have already announced that they want to finalize TPP by the summit meetings of the members of the Asia-Pacific Economic Cooperation on November 8-13, 2011 in Hawaii. The TPP will impact health, access to knowledge, and without the necessary safeguards, the right to privacy.

The right to privacy not only protects individual interest but social interest. Freedom of speech, religious freedom, sexual choice, and other rights and liberties are protected through the right to privacy. However, historically it has been under attack, first by government, then by the media, today also by intellectual property enforcement. In fact, the TPP negotiations show to which extent, under the guise of protecting intellectual property negotiators are willing to sacrifice the right to privacy and, therefore, an essential element for democratic societies.

TPP is an initiative promoted by the USTR to deepening free trade agreements in the Pacific area. Currently, its negotiation includes Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam. Because of the secrecy in its negotiation, nothing of the TPP is known, but the leaked chapter on intellectual property proposed by the US. This chapter is particularly important for privacy, and it usually is the chapter that raises more concerns among privacy advocates, because it includes several measures that affect the right of people to control the information about themselves.

There is not a similar level of protection for privacy among countries involved in TPP negotiations. New Zealand and Peru are probably those with stronger protection mechanisms; the former is being recognized as a country that provide an adequate level of protection for privacy by the highly protective European Union, while the latter just modified its domestic law following EU standards. Australia, Chile, and Malaysia may qualify as high-intermediate level of protection, while the United States offers an intermediate one. Singapore does not have any law on the matter, but instead voluntary codes of conduct that would barely qualify as a low level of protection. Even more critical may be the protection of privacy in those countries with a questionable democratic commitment.

But, how does TPP jeopardize the right to privacy? TPP affects the protection of the right to privacy by enforcing intellectual property in two ways. Indirectly, by increasing the scope of protection for copyright holders (e.g., by granting an exclusive right to exportation or extending the term of protection) and, therefore, increasing the chances of enforcing the law with measures that undermine the right to privacy (e.g., those that require identifying supposed online infringing users). Directly, by requiring countries the implementation into domestic law of measures that jeopardize the right to privacy. This happens in at least three set of provisions of the TPP: those related with technological protective measures (TPMs), those that require ex officio enforcement, and those that regulate internet service providers’ liability.

TPP goes beyond international instruments on copyright when proposing norms on TPMs, which follow the path of the DMCA. The WIPO Internet Treaties requires countries to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measure. Instead, TPP requires countries to adopt provisions against eluding those measures (anti-circumventing) and against commercializing devices that allow that circumvention (anti-trafficking), even for legitimate purposes. Moreover, TPP requires criminal sanctions against eluding and commercializing, even if no copyright infringement takes place.

Unlike in the ACTA negotiations, the TPP proposal includes some narrow exceptions that allow circumventing a TPM; for instance, for the purpose of identifying and deactivating a TPM’s capability that affects the privacy of a user by carrying out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person. However, this exception is limited to anti-circumventing provisions, but does not apply to anti-trafficking provisions, which means that each user has to figure out by himself how to identify and deactivate the mentioned capability. In plain language, if a user is interested in protecting his right to privacy, he needs to become a hacker in order to enjoy the exception. As a result, the exception for protecting the right to privacy is useless.

TPP requires countries to confer to both custom and criminal prosecution authorities power to act ex-officio in order to enforce intellectual property. According to the TPP proposal, custom authorities should enforce intellectual property not only respect to imported and exported goods suspected of infringing trademark or copyright, but also respect to “in-transit” goods. Meanwhile, criminal prosecution authorities should enforce criminal law without need for a formal complaint by right holders.

Provisions on ex-officio enforcement raise concern related to the public cost of enforcing private interest, and also because of its potential use by governments for political persecution, particularly in countries with precarious sense of democracy and human right compliance. In recent months, authorities of Russia and Swaziland have used the ex-officio actions to silence critical speech of environmentalists and political dissidence. Unfortunately, TPP does not adopt any measure to prevent that unintended use of ex-officio enforcement.

The TPP proposal requires regulating Internet service providers’ liability for any potential online infringement of intellectual property. It does not require ISPs monitoring of users, but it does not prohibit it; instead, TPP requires cooperation between ISPs and right holders. Cooperation between ISPs and right holders without regards of users’ rights has been the way to implement the graduated response (also known as three strikes policy) in countries like United Kingdom and Ireland. Unfortunately, TPP does not prevent that, under cooperation between ISPs and right holders, the former ones monitor users.

Additionally, the TPP proposal requires implementing the disconnection from the Internet of supposed infringers of intellectual property, the adoption of expeditious mechanisms for notice and takedown of supposedly infringing contents, and the identification of users by any ISP providing access to the Internet. Those measures are not available in all the TPP-negotiating countries (e.g., Peru does not have any copyright provision on ISP into its domestic law). Other countries have made an effort to harmonize those measures with an adequate protection for the right to privacy (e.g., Australia and Chile require judicial control in order to take down content and identify users). Instead, in the U.S. law, which is the base for the TPP proposal, those measures have been criticized because they jeopardize the right to privacy, among other human rights.

It may be recalled the fact that, during ACTA negotiations, presumably because of the pressure of data privacy authorities of the European Union, ACTA gave up some of those controversial measures (e.g., the graduated response) and included some safeguards for privacy. Unfortunately, none of the privacy safeguards adopted in ACTA seem reflected in the TPP proposal.

Obviously, data privacy authorities of negotiating countries should analyze the consistency of the TPP IP chapter proposal with existing domestic law on privacy, particularly in countries with stronger protection, such as Australia, New Zealand, Malaysia, Chile, and Peru. Intellectual property enforcement may require processing personal information, but it does not mean that the right to privacy must be if not abolished nullify. At this point, unfortunately, the TPP proposal jeopardizes the social interest involved in protecting privacy and other fundamental rights, by omitting any consideration to them in its provisions.