International talks on a secret deal over trade in services threaten to overturn to net neutrality policies currently on the table on both sides of the Atlantic.  Instead, back-room negotiators could put in place an international framework that leaves the door open for restrictive behaviour by the telecommunications companies that run the Internet.

The  agreement is known as TISA – Trade in Services Agreement. It is a  multi-lateral free trade agreement, intended to make it easier for companies to export services to other countries. The deal is being brokered between the United States, the European Union and 23 other countries. If adopted, it would put in place a new international regime for services that could override national laws.  On signing, each signatory country  would have to be adopted into national law. In that regard, the position of TISA is similar to that of the now-demised ACTA.

 TISA talks have been underway for around two years. The European Union Council of Ministers approved the negotiating mandate in March 2013, but other than this one document, declassified this year in March, nothing has been made public.

 However, a number of documents from the  TISA talks were released last week  by  Wikileaks.  Two of these are of particular interest from an Internet perspective, because they throw some sunlight onto  how TISA proposes to address telecommunications and e-commerce services.

 In the context of net neutrality, there is some language that is particularly striking. It calls on the signatory governments to endeavour not to restrict Internet traffic. It begs the question what does endeavour mean in this context? Should governments legislate or simply ask nicely that providers do not impose restrictions? Asking nicely, of course, is ineffective and the concern is that this language would  open wide a hole in the law that  would permit – or not forbid – broadband providers from imposing restrictions.

 The text being proposed is:

 Each Party shall endeavour not to [...] restrict the ability of service suppliers to supply services over the Internet [and]  shall endeavour to promote the interoperability of services and technologies, where appropriate.

 It is unclear what is meant, but my interpretation is that this is an attempt to preclude a net neutrality law – where net neutrality is perceived by the telecoms corporations as a restrictive law. It could be a weak attempt to prevent blocking or prioritisation. The exact meaning depends on what is meant by “supply services over the Internet”: this clumsily-written phrase could be referring to hosting platforms and over-the-top services, or it could be referring to broadband providers.

 The TISA also re-introduces language of ‘reasonable network management’. This is a formula that the large telecoms corporations favour, because they believe it would allow them to implement a range of traffic management options on their networks. Traffic management is in part about congestion management, but also encompasses blocking, filtering and deep packet inspection.

 Each  Party shall endeavour to ensure that internet access providers avoid unreasonable discrimination  in transmitting lawful network traffic.

In the EU, this language was debated at the time of the 2009 EU Telecoms Package, when it was found within amendments proposed by AT&T and other telecoms corporations.

 This clause also raises serious question marks around the notion of lawful network traffic. I am not sure whether this is a notion that would have any legal validity – but maybe my lawyer readers can help here!

 Ultimately, the TISA text seeks to embed a legal regime that enables restrictive behaviour by broadband providers and which runs contrary to the proposed  net neutrality policies from both the FCC and the European Parliament.

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This article was prepared using a leaked drafts of the  Telecoms and E-commerce Annexes to the Trade in Services Agreement (TISA)  made public by Wikileaks.

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 The political context for the EU telecoms policy  is discussed in my book The Copyright Enforcement Enigma which discusses  the 2009 Telecoms Package and the processing of it in the European Parliament. The book explains all about how the political processing works. 

  If you are  interested in how the lobbying operates in the European Parliament, then you may also like my other book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms 

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  This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015,   in Iptegrity.com,  17 June  2015. Commercial users - please contact me.

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