USTR Should Tout U.S Privacy Standards, Promote Free Flow of Data in US-EU Talks, Says Industry Coalition

Promoting the free flow of data and better understanding of U.S. privacy standards should be priorities for the Office of the U.S. Trade Representative in trade negotiations with the EU, trade associations said in response to a call from the USTR for comments on an upcoming trade negotiation between the U.S. and the EU. Public Knowledge advocated that the negotiations -- named the Transatlantic Trade and Investment Partnership Agreement (TTIP) -- remain open and not interfere with U.S. copyright law reform.

Through this process, the USTR can correct the inaccurate view held by some EU countries that U.S. law does not protect digital privacy, Digital Trade Coalition (DTC) said (here): "This unjustified, unduly negative view of the US regulatory and enforcement regime results in American businesses facing explicit and implicit barriers to doing business in and with Europe." The TTIP process can lead to "greater understanding, consistency and interoperability" of U.S. and EU privacy standards, DTC wrote. Though the standards are similar, the agreement could establish a bilateral working group "to identify and reconcile key differences in order to promote interoperability," DTC said. The group would have no regulatory power, but "could help develop bilateral interpretations and understandings that avoid conflicts and promote mutual recognition," the filing said. It said privacy standards are being evaluated in both places, and "this acute focus on privacy and data protection provides a great opportunity for greater regulatory cooperation and coordination going forward."

DCT encouraged USTR to advocate for "a meaningful effective lead 'supervisory' privacy regulator, or 'one-stop-shop' model, for US multinationals doing business throughout the EU, based on the company's main establishment in the EU." Creating a system by which U.S. businesses answer to a single regulatory body will decrease the burdens of doing business abroad, the comments continued.

TTIP shouldn't include a copyright chapter, said Rashmi Rangnath, director of Public Knowledge's Global Knowledge Initiative, in comments (here). Though trade negotiations "may call for some harmonization of exclusive rights of copyright owners to ensure easier movement of copyrighted products across national borders," that harmony already exists between the EU and U.S., both of which have regimes that "provide for similarly strong exclusive rights," she said. Congress is reevaluating copyright law in the digital age, and a copyright chapter could "impede Congress' ability in crafting copyright law and policy," Rangnath wrote.

Any copyright chapter must "spell out specific limits to exclusive rights" for copyright holders, Rangnath said. She backed "a more balanced approach to copyright" than in previous trade negotiations, including the Trans-Pacific Partnership (TPP). Rangnath advocated against the three-step test, seen in leaked TPP drafts, which "provides a mechanism to determine whether national limitations and exceptions comply with provisions of particular agreements." The test is subject to "uncertainty and controversy" as stakeholders debate whether it gives participating countries the flexibility to craft their own limitations and exceptions, she said. Placing specific limits and exceptions on exclusive rights "is essential to ensure that U.S. companies are not encumbered in their ability to sell products in Europe," she said, citing technology such as MP3 players and search engines as examples of U.S. products that make use of copyrighted material. Limiting exclusive rights has non-economic benefits as well, including the "promotion of free expression and cultural enrichment," Rangnath said.

TTIP should be "an open and inclusive" process, Rangnath wrote. In the past, Public Knowledge has been critical of the closed TPP Agreement negotiation process. USTR should "seek broad public input at all stages of the negotiation" of TTIP, including "sharing U.S. proposed treaty language with all stakeholders," Rangnath said. Maintaining an open approach will prevent "an outcry against the agreement among members of the public" and will "ensure that the considered expertise and perspectives of a broad range of stakeholders ... inform the TTIP resulting in an agreement that protects and promotes the interests of all Americans," she said.

TTIP should have a balanced approach to copyright, said the Consumer Electronics Association (here). The USTR should advocate for "a balance between copyright holders' exclusive rights and the rights of consumers to use lawfully acquired content" under the fair use principle, CEA wrote. "Such a balance of interests is crucial not only to the rights of consumers and copyright holders, but also to the notion of fostering innovation." CEA also advocated for the flow of information across borders. "To the extent that privacy is a legitimate concern when considering cross-border information flow issues, CEA supports provisions in the TTIP that would ensure that privacy protection is done carefully so as to avoid unintended consequences on innovation and economic growth," the group said.

Through the TTIP negotiations, USTR should "not in any way narrow" the expansion of the Information Technology Agreement (ITA), CEA wrote. The association wants the expanded ITA to include connected devices, such as videogames and TVs, that "are hugely popular with consumers and often essential to their daily lives," the group wrote. "Updating the ITA to include these products, and thereby eliminating associated tariffs, will benefit consumers by making them more affordable, encourage competition, and promote manufacturing of these devices, which will create new jobs." -- Kate Tummarello