USTR Hears Arguments For, Against Privacy, Copyright Interoperability in TTIP Hearing

The Office of the U.S. Trade Representative and members of the interagency Trade Policy Staff Committee heard arguments for and against the interoperability of EU and U.S. privacy and intellectual property standards, during a Wednesday hearing on the Transatlantic Trade and Investment Partnership (TTIP). Industry groups said TTIP should find the commonalities between U.S. and EU privacy and copyright policies to promote the free flow of data across borders, while consumer and privacy advocates said TTIP should not impose the restrictions of U.S. copyright policies on other countries or weaken EU privacy standards.

"Interoperability is the word we would offer” as the foundation for TTIP negotiations, Harriet Pearson, partner of Hogan Lovells Privacy Information Management Practice and representing the Coalition for Privacy and Free Trade, said during oral testimony. The privacy regimes in the U.S. and EU have “broad similarities,” as both “focus on empowering individuals to exercise control over their personal information; both emphasize the importance of appropriate measures to achieve adequate data security; and both expect accountability of the organizations to collect, use and otherwise manage personal data,” the group said in its written testimony. TTIP should focus on the free flow of data across borders, “enabling companies from different jurisdictions to share data across borders while providing necessary privacy productions,” the group said.

The privacy regimes of the two negotiating parties “are different, but compatible,” said David LeDuc, Software and Information Industry Association (SIIA) senior director-public policy. “A primary goal of the TTIP negotiations should be to ensure that privacy rules do not act as an unnecessary barrier to cross-border flows of information,” he said. The panel of agency representatives said it would be interested in seeing empirical evidence to support claims that data localization requirements motivated by privacy concerns harm businesses. LeDuc said SIIA has no empirical evidence on that issue. “It’s a hard area to determine and actually put a dollar figure on,” he said.

It’s premature to address privacy in TTIP, as “both the EU and the U.S. approaches to data protection are being re-examined,” said Jeff Chester, executive director of the Center for Digital Democracy, in his prepared testimony. He compared the EU’s “long-established framework to empower its citizens regarding data protection” -- which is subject to “pending regulatory proposals that would revise its highly regarded data protection directive” -- to the U.S. “potential promise of some form of national privacy law” and the multistakeholder approach that has not been found to be “workable.” Chester cited the World Wide Web Consortium’s Do Not Track process and the mobile privacy process facilitated by the NTIA as examples of these multistakeholder processes. Chester also advocated for transparency in the negotiation process and the “creation of a formal advisory board” to “facilitate the participation of consumer groups.” Consumer advocates would be able to help TTIP negotiators see “the huge consequences to the public health and the public welfare” of digital data collection, he told the panel. “We look at what actually happens, not the rhetoric that you might get from lobbyists.”

In a blog post published before the hearing, Chester said industry groups like the Digital Trade Coalition and the Coalition for Privacy and Free Trade -- both of which had representatives speak at the hearing -- engage in “fiction writing” to “paint a picture of a robust system protecting privacy” in the U.S. (http://bit.ly/19mRUpG) These groups want “a trade deal that would allow our ineffective privacy regime to be considered ‘interoperable’ with the EU’s human rights and civil liberties robust approach,” he wrote. Based on the statements and comments of these groups, it’s clear that “fiction writing is alive and well on K St.,” Chester told us.

TTIP can be a chance for the U.S and EU to learn from one another’s approaches to copyright infringement, Steven Metalitz, counsel to the International Intellectual Property Alliance (IIPA), told the agency representatives. IIPA includes the Entertainment Software Association, BSA/The Software Alliance, the MPAA and the RIAA. “Some European countries have different approaches in dealing with businesses that are based upon widespread copyright infringement,” while “the U.S., on the other hand, has gone further in terms of voluntary agreements” around copyright enforcement, which European countries could learn from, he said. Additionally, the U.S. and EU could increase their joint work to enforce intellectual property rights in third-country markets, he said. When asked by the agency representatives about specific recommendations and examples of specific ways the U.S. and EU can address these third-country markets, Metalitz said he had no specific recommendations in mind, but it’s important for the countries to come “to an agreement on which are our top priority markets to focus on."

The IP provisions in TTIP should be different from provisions in other trade agreements, such as the Trans-Pacific Partnership, because “such provisions are not necessary in the TTIP,” Metalitz said. “Both partners in the TTIP already have in place modern copyright law and enforcement regimes that are also harmonized to a considerable extent."

The U.S. should consistently promote a strong system of IP limitations and exceptions in TTIP, said Krista Cox, staff attorney for Knowledge Ecology International (KEI). Cox pointed to the World Intellectual Property Organization, where she said “the U.S. is a major player and in discussions with other countries.” The WIPO process is leading to a treaty that will strengthen limitations and exceptions for formatting copyrighted works for the visually impaired, and the U.S. should build off of that progress, she said. “We would hope ... that positive agenda is reflected in the United States trade policy.” TTIP should have copyright safe-harbor provisions that are missing from TPP, Cox said. KEI is concerned “that in the [Digital Millennium Copyright Act] there are specific carveouts for universities and institutes of higher education that’s not reflected in the TPP text,” she said. “That type of carveout should be included.”

The TTIP negotiation process should be transparent, Cox said. “Once the U.S. or EU have table text, it should be made public” with “narrow and limited” exceptions, she said. Cox said KEI objects “to the current secretive system” employed in other trade negotiations, including the TPP negotiation process.