The Role of the Trans-Pacific Partnership Agreement In the Internet Ecosystem: Uneasy Liaison or Synergistic Alliance?

摘要

The Trans-Pacific Partnership Agreement (TPP) is the first trade agreement that comprehensively deals with contemporary policy issues in digital trade. It introduces new disciplines on issues such as cross-border data flows, online privacy, network neutrality, cybersecurity, regulation of spam, and safe harbour protection for internet intermediaries. These provisions are atypical of trade agreements, and are particularly significant as they have a direct impact on internet policy. In this article, I evaluate these new disciplines in the TPP to assess the extent to which the TPP is suitably placed in the internet eco-system. After a comprehensive legal assessment of these disciplines, I argue that the TPP does not effectively fit into the broader internet ecosystem, as it fails to synergize the goal of trade liberalization with important internet policy concerns such as facilitating trust of internet users and digital innovation. However, despite its deficiencies, the TPP sets a new benchmark for rules on digital trade, as its provisions address several contemporary issues in the digital economy. Therefore, the provisions on digital trade within the TPP will be instrumental in future negotiations at the World Trade Organization (WTO) and other regional bodies. More importantly, the TPP is a reminder of the increasing significance of trade agreements in influencing critical aspects of internet policy. Particularly, in developing rules on digital trade that affect issues such as cross-border data flows, online privacy and consumer protection, net neutrality and cybersecurity, trade negotiators/lawyers need to comprehensively assess the relevance of these rules in the liberalization of digital trade, and its broader impact on the internet ecosystem.