Tuesday, 23 October 2018

Protecting Privacy Rights with Alternative/Progressive Trade Agreements

As part of the Alternative and Progression Trade Hui in 2018, I was asked to speak for a few minutes about privacy rights in the digital age, and how they can be influenced by international trade agreements.

Q: Privacy and controlling the use of our personal information for commercial purposes is increasingly at risk in the digital world. It is changing very rapidly, with the Facebooks and Googles of the world increasingly difficult to regulate and control. Their interests are also reflected in the trade and investment agreements, particularly in e-commerce chapters. How do you think this industry will develop over the next decade or so, and how would you see international agreements best structured in the face of this constant change in order to ensure people’s privacy and control of their lives is protected?

A: A lot of the threats to privacy in the coming years are enabled by advances in AI, which allow us to process a lot more data more quickly, while also doing so in a way that is opaque to humans. Our rights were not designed with these types of automated capabilities in mind.

Trade is not just about physical goods! Data and information have value and are now commoditised - privacy is what helps us keep that value to ourselves and maintain ownership. There has been an erosion of rights with commercial entities getting on board - we can't think of surveillance as being an exclusively state activity, and we need to understand how corporations are trading in and using our data.

Privacy seems to be one area where exposing the downsides of large-scale data collection and trade of that data can generate a lot of attention - e.g. NSA, Cambridge Analytica and Facebook, etc. But after each breach, we focus on individual responsibility and individual actions - delete Facebook, or don't use social media, etc. By and large, there are very few nation state actions or responses.

Governments simply do not know what is out there, lawmakers are unaware of both the risks and the opportunities to use technology to protect privacy. This is one area where states have been largely reactionary. The current Privacy Bill has been characterised as fit for 2013; it will be outdated upon arrival. There is a reliance on lobbyists in this space, funded by the types of companies that say "move fast and break things". Privacy rights are sometimes viewed as antithetical to capitalism, because they get in the way of doing business. More companies are wary of this now, but in a sense, without regulation there may not be sufficient incentive for companies to make privacy a priority and actually protect people's data. This influences our trade agreements, for example, by asking for source code to be kept secret in order to protect intellectual property. Strong privacy legislation can be seen as a trade barrier, and thus it becomes traded away in exchange for economic benefit.

At the same time, Europe is exporting their privacy standards with the GDPR - privacy is one area with contagious legislation where states often copy each other. In some ways this is good, if it means that everyone is adopting good protections. The GDPR led to a massive scramble of companies rushing to get themselves compliant - not because it was impossible before, but because they didn't need to before. So a progressive trade agreement could lift the standards in this area for everyone - it requires leadership from a state, such as we've seen in the EU. So while our privacy and our data can be at risk through trade agreements, there can also be opportunities for those trade agreements to strengthen privacy protections - it depends on how much we can convince governments to prioritise it. New Zealand can be a leader in this space and say that it’s important to us.

Trade agreements can demand performance standards over how trade is conducted, for example cross-border data transfers which are covered by TPP, RCEP, EUFTA, and others. It may be weird to think about data transfers as international trade, but there is an exchange of value there. There are some existing standards, but we could go much further to introduce stronger property rights around data, particularly around how multinationals obtain and then use and trade our data, and make sure that we can own our own data and protect it. GDPR is an example of how this can be achieved. New Zealand can make privacy a priority, and it should really be a priority for all trading nations.

[But in 30 years time none of this might matter anyway, as we head towards more complex AIs that cannot be understood or inspected by a human, which may process and trade our data in ways that we cannot foresee. How we deal with that as AI becomes more pervasive and harder to control is a different but also critical discussion.]

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