TiSA

The Trade in Services Agreement (TISA) is a free trade agreement focused on services currently being negotiated since March 2013 by 53 countries (European Union, United States, Australia, Canada, Chile, Hong Kong, Iceland, Israel, Japan, south Korea, Liechtenstein, New Zealand, Norway, Switzerland, Taiwan, Uruguay, Colombia, Costa Rica, Mexico, Panama, Peru, Turkey, Pakistan, Paraguay ; notably, no BRICS countries) Those 53 countries add up to 70% of all trade in services worldwide. It is a way to get out of the deadlock of the Doha Round of negotiations of the WTO, which started in 2001.

The negotiations have been very criticised for their secrecy. The negotiating texts are supposed to remain secret for five years after TISA is finalized and brought into force.

The most recent leak is from February 2015, published in July 2015 with an analysis by Wikileaks. Most of the provisions on net neutrality and data localisation have remained very similar since the previous leak of 2014.

The European Union and TISA

The European Union is interested in such a trade agreement because it does not have a free trade agreement yet with Australia, Hong-Kong, Israel, Turkey, and some others.

The negotiating mandate of the European Commission was eventually made public in March 2015 in an effort to appear more transparent. It states that “the agreement should cover substantially all sectors and mode of supply”. The only safeguards mentioned explicitly in the TISA mandate concern cultural diversity, the audio-visual sector, labour and public services. The mandate explicitly mentions the inclusion of cross-border data transfers.

The LIBE committee of the European Parliament has issued an opinion rejecting the e-commerce chapter as it is. Several member of LIBE have demanded that LIBE join INTA in being consulted about it, but they are currently not.

Viviane Redding, rapporteur on TISA for the European Parliament, called in February for the exclusion of public services. Several MEPs have already taken position against it. Asked about the negotiations, the European Data Protection Supervisor stated he had not been consulted, and added that “fundamental rights are not negotiable”.

The leaked annex on electronic commerce

Most of the principles the text is supposed to defend are laudable, but the very vague language and the important exceptions make it so that if this leaked annex from TISA should become the international standard, net neutrality and privacy would be very negatively impacted.

Network Neutrality

The blocking of access to content is prohibited, except in case of illegal content or “reasonable traffic management”, which is not defined, but certainly more permissive than the standards adopted by other jurisdictions (such as Canada). It would allow for anti-competitive exception, like when a US ISP wanted Netflix to pay for its large broadband use. “Reasonable discrimination”is also allowed, but not defined. That could result in paid prioritisation or a re-inforcement of zero-rating services. ISPs would have be liable for activities of their end users and could be obligated to block access to illegal content. As no specific criteria is currently set up, this amounts to arbitrary censorship.

Open Source usage

TISA would prohibit governments from requiring “a company to provide access to or transfer of software source code as a condition of service provision”, except for critical infrastructure. This would affect transparency and the use of open source offerings in government contracting. On the other hand, this prohibition could be useful elsewhere where it is not applied. For instance, for privacy or security reasons, the access to the source code of a Deep Packet Inspection equipment should be given to a government only under certain conditions.

Privacy and Spam

A TISA provision requires Parties to “provide for the minimisation of unsolicited commercial electronic messages”. Electronic Frontier Foundation warns that in practice, anti-spam laws have generally been ineffective at best, and ripe for abuse at worst.

TISA member states would have to “adopt or maintain a domestic legal framework” for the protection of user privacy in electronic commerce; but it is very unspecific and not very restrictive to say the least.

Article 2 (“Cross-Border Information Flows”) states that no Party may prevent the transfer, access, processing or storing of information outside that Party’s territory if conducted in connection with a business; no Party may require a service supplier to use territorially localised computer facilities for processing and storage of data as a condition of supplying service to that country. It is very much opposed to the current EU data protection regime (or similar regimes in Mexico, Colombia and Paraguay). There is an exception for national security. A state may pass a legislation oppose to the TISA provisions for “its own essential security interests”. Once again, what those interests would be exactly is not defined.

Leaks of the other annexes

Telecom Annex

There is currently a debate on whether or not to include a provision forbidding the prohibition of foreign ownership of telecommunications network. Another article would make it mandatory for each state to have “an independent regulatory infrastructure to fairly and expeditiously address complaints” on telecom matters; but debate on whether this should be for service providers only or extended to end users.

Annex on the movement of natural persons

Establishes a confusion in the case of migrant workers between employers/employees and contractor/ “independent service suppliers”, thus undermining their social protection.

Annex on financial services

Restrictions on financial regulations that would cover pretty much the entire financial sector. It prevents the adoption of policy that would limit the risk of financial services, such as banning risky complex financial products or limiting the size of banks in order to prevent them becoming “too big to fail”. TISA would also prohibit government policies to prevent the offshoring of their citizens' financial data.

Annex on transparency

Not “transparency” in the sense of having public debates about international trade agreements, obviously! Here, it means ensuring that regulations and laws concerning services covered in TISA are made public in advance of their enforcement so that “interested persons” may comment (read: lobby) it.

Annex on International Maritime Transport Services

Further liberalisation of maritime cargo handling, storage and exploitation of natural resources.

Annex on domestic regulation

It asks for regulatory criteria to be “objective”, “transparent” and “impartial with respect to all applicants”. Behind the vagueness of the terms is probably hiding an undermining of public policy centred on quality of life, health, etc. Would promote further privatisation delivery of services such as higher education.

Finally, a proposal from Turkey aims at facilitating “health tourism” by promoting offshoring of health care services and privatisation.

Lobbying for and fighting against TISA

Organisations lobbying for it

In the US, TEAM TISA is lobbying for it. It is composed by, among others, 21st century Fox, Cisco, Ebay, Fedex, Google, Hp, IBM, Intel, Walt Disney Company, Walmart, Visa, Verizon, Microsoft, Mastercard, JP Morgan Chase. Most of them belong to the Coalition of Service Industries.

Express Association of America, which represents the major postal services (FedEx, TNT, UPS), has also taken position for it.

In Europe, the main lobby organisation for TISA is the European Services Forum. Among its members are HSBC, British Telecommunications, Orange, Telenor, as well as the German and French Postal service main company.

In a nutshell, it's mainly telecom companies, new technologies companies, postal companies and finance firms.

The organisations fighting against TISA as it is

• Digital rights organisation such as EFF, Access, EDRi, … fighting against a weakening of net neutrality rules and data protection regimes

• Unions, such as Public Services International or European Federation of Public Service Unions, opposed to further privatisation and decisions on social matters being taken un-accountably in secret

• “alter-globalisation” movements such as ATTAC, Our World Is Not For Sale or Friends of the Earth, fighting for transparency, against deregulation of finance, less rights for migrant workers, among other things.