One of President Barack Obama’s selling points for the TPP has been claims that it helps preserve “an open and free Internet.” The references to an open and free Internet, which is closely linked to net neutrality, may strike a chord with those concerned with digital issues. However, the Trouble with the TPP is that a close examination of the text and a comparison with existing net neutrality rules in many TPP countries reveals that it doesn’t advance the issue. In fact, the standards are so weak and unenforceable that at least half of the TPP countries already far exceed them.
Article 14.10 of the TPP provides:
Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.
As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.
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The Trouble with the TPP series this week has focused on issues such as the failure to obtain a full cultural exception and the weak e-commerce rules that do little to assist online businesses, particularly small and medium sized enterprises. Yet the Canadian digital failure goes even further. While other countries saw the opportunity to use the TPP to advance their domestic online sector through side agreements, Canada remained on the sidelines. Indeed, as some leading critics such as Jim Balsillie have noted, the Canadian government did little to even consult with Canada’s technology sector.
Consider a side letter on online education between Australia and Vietnam. The side letter opens the door to technical assistance and pilot programs for online education between the two countries, providing for assistance on distance education delivery models, assessing applications from Australian providers to deliver online education, and work to recognize the qualifications obtained from such courses. Moreover, the letter states that:
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In today’s communications driven world, no one collects as much information about its customers as telecom companies. As subscribers increasingly rely on the same company for Internet connectivity, wireless access, local phone service, and television packages, the breadth of personal data collection is truly staggering.
Whether it is geo-location data on where we go, information on what we read online, details on what we watch, or lists identifying with whom we communicate, telecom and cable companies have the capability of pulling together remarkably detailed profiles of millions of Canadians.
My weekly technology law column (Toronto Star version, homepage version) notes that how that information is used and who can gain access to it has emerged as one the most challenging and controversial privacy issues of our time. The companies themselves are tempted by the prospect of “monetizing” the information by using it for marketing purposes, law enforcement wants easy access during criminal investigations, and private litigants frequently demand that the companies hand over the data with minimal oversight.
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Appeared in the Toronto Star on January 25, 2016 as Why Your Telecom Must Defend Your Right to Privacy In today’s communications driven world, no one collects as much information about its customers as telecom companies. As subscribers increasingly rely on the same company for Internet connectivity, wireless access, local […]
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Culture and the TPP has yet to garner much attention, but that is a mistake. The TPP departs from longstanding Canadian policy by not containing a full cultural exception and creates unprecedented restrictions on policies to support the creation of Canadian content. The Canadian position on trade and culture has been consistent for decades with successive governments requiring a full exemption for the cultural industries. The exemption, which is found in agreements such as NAFTA and CETA, give the government full latitude to implement cultural policies to support the creation of Canadian content.
The TPP’s approach to culture is different from Canada’s other trade agreements. Rather than include an exception chapter or provision, the TPP contains several annexes that identify “non-conforming measures.” This allows countries, including Canada, to list exceptions to specific TPP rules. Without an exception for the cultural industries, the TPP rules banning local presence requirements and national treatment for service providers would place Canadian cultural rules at risk. Annex II includes a Canadian exception for the cultural industries. The exception is promoted in the government’s summary of the TPP, which claims that the agreement:
includes a broad reservation under Services and Investment for existing and future programs and policies with respect to cultural industries that aim to support, directly or indirectly, the creation, development or accessibility of Canadian artistic expression and content.
That led to media coverage reporting that Canada had obtained a full exception to protect cultural policies. A closer look at the actual text, however, reveals that Canada did not obtain a full cultural exception. Rather, there are two notable exceptions to the general cultural exception, which state:
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