July 16, 2014

A license to spy – cross-border data flows in TTIP

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Here is a quote from Harry van Dorenmalen of IBM Europe:

Data flows and the Transatlantic Trade and Investment Partnership (TTIP) will be high on the agenda at the Summit. TTIP offers a unique opportunity to set the example as a 21st Century trade agreement that supports cross border data flow provisions…

The position is not new and mirrors earlier attempts of IBM Europe leadership to mock the idea of a European cloud. The “demands for a safe environment for big data” are channelled via various lobby hats, including EU branded ones. Here for instance the European Services Forum (22 May):

The ESF and CSI call upon negotiators to ensure that TTIP will allow cross border data flows and dataprocessing to occur free from discriminatory terms and trade distorting conditions such as requirements to use local network infrastructure or local servers. These commitments should be applied across all services sectors, including financial services.

Part of the common “data flow” narrative is also fearmongering about fragmentation of the internet.

Why is it critical to have a close watch and what is so outrageous about this agenda?

  1. “data flows… including financial services”. Please learn more about the SWIFT scandal to get an idea why this is unacceptable.
  2. Why would European governments consider “requirements to use local network infrastructure or local servers”? Why wouldn’t Estonia like its egovernment services to be hosted in Russia?

The data flow debate relates to the recent surveillance scandals, and the post-snowden world. Having your data on European servers won’t help against criminal actions of partner countries. What it does achieve is data governance by your jurisdiction and preventing undesirable lawful access of a foreign government – as in the SWIFT scandal. There the US government dared to spy on the most toxic European data you could imagine, financial and stock market transaction data collected by the SWIFT processing agency, data mirrored on US servers. The US President B. Obama openly discussed the data flow topic with the Export Council and we hear from IBM that thankfully “Froman got it tied down in the trade agreement.”, that is TTIP.

It is hard to imagine how provisions on unrestricted cross-border data flow would benefit Europeans but it is essential to understand the harm to our data sovereignty. We got assurance from the European Commission that privacy protection would not be discussed within TTIP and some feel relieved by that. It seems ironic that the opponents of European privacy standards and collaborators of government surveillance table provisions on “free data flow” for TTIP that undermine reasonable European data sovereignty defenses. You may wonder if the European Commission negotiators are out of their mind to accept these demands in a “digital chapter” and limit (insufficient) options to defend European digital security interests.

In fact, data flow provisions are suicidal in the current situation where European leaders get no post-Snowden concessions from the US whatsoever, not even a fig leaf no-spy agreement, and the European Parliament calls to terminate the safe harbour data agreement with the US. Even for the US Export Council members it seems astonishing that Europeans negotiators are easily willing to accept these demands and to buy into the overbearing distortion to denounce these data location requirements as a trade barrier. If you understand the scope, impact and substance of the US demands you are likely to call the persons responsible names and would volunteer to eat chlorinated chicken for the rest of your life if only these provisions get taken out of that TTIP agreement.

The free data flow provisions in TTIP received broad lobby support by the US ICT industry and associations. The positions are pretty well developed, dispersed over multiple fora and hats.  What you may find outrageous upon closer look is worded low tune and reasonable, opposing views are not taken and decision makers in the Brussels bubble get vaccinated by riddiculing these views. Among the eloquent supporters of this agenda is a disgraced former German defense minister whom Commissioner Neelie Kroes once appointed to an net freedom advisory role. With fearmongering about “data separatism”, “fragmentation” of the internet, building on the old “free flow” ideals of the internet technologist community and European mainstream narratives of free cross-border exchange of goods and services the transatlantic free data flow agenda pursues a devilish assault on the privacy and freedoms of European citizens and nation states in the digital world.