Why Trade Agreements are not Setting Information Free : The Lost History and Reinvigorated Debate over Cross-Border Data Flows, Human Rights and National Security

This article examines how the United States and the European Union (the EU) use trade agreements to both advance and restrict the free flow of information, and to promote Internet freedom. This issue is not new: in the 1980s, with the advent of faster computers, software and satellites, officials from some states including the US and Japans wanted to include language governing the free flow of information in trade agreements. As of July 2014, government officials are negotiating cross-border data flows in three very different trade agreements. Officials and citizens from many nations worry about their ability to control or limit information flows as well as their dependence on US companies to provide web services (which must comply with US rules on privacy and national security). In June 2013, after media outlets publicized the revelations of former US National Security Agency (NSA) analyst Edward Snowden, policymakers and citizens around the world became concerned about provisions to promote the free flow of information (Davies: 2014). They recognized that the NSA (and other surveillance agencies) did not fully respect digital rights, including national privacy rules and had restricted the free flow of information with their surveillance activities. Meanwhile, several EU countries and other states tried to use the Snowden revelations to wrest greater market share from US internet giants (Chander and Le: 2014; US ITC: 2013; Kommerskollegium 2014). Many governments including Brazil, India, Turkey China, and Germany, adopted strategies that restricted rather than enhanced the free flow of information, and further fragmented the Internet (Maxwell and Wolf: 2012; Chander and Le: 2014). Without deliberate intent, the US and EU efforts to set information free through trade liberalization may be making it less free