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

"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. (here) 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.

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," said Steven Metalitz, counsel to the International Intellectual Property Alliance. "Both partners in the TTIP already have in place modern copyright law and enforcement regimes that are also harmonized to a considerable extent." -- Kate Tummarello