In advance of global leaders meeting at the 13th ministerial conference of the World Trade Organization, the Center for Democracy & Technology (CDT) joined ITIF and a coalition of civil rights, civil liberties, open Internet advocates, and digital trade experts in urging top Biden administration officials to “support a free and open global Internet, while allowing for critical public policy objectives to support privacy and equity.”<\/p>\n\n\n\n
***<\/strong><\/p>\n\n\n\n Dear Secretaries Blinken and Raimondo and Ambassador Tai:<\/p>\n\n\n\n The below-signed civil rights, civil liberties, and open Internet advocates have championed a free and open Internet while fighting against the harms that emerging technologies may pose for liberty, privacy, and equity. These goals can\u2014and must\u2014be achieved together. While we appreciate President Biden\u2019s steps to address the actual and emerging harms of artificial intelligence,\u00a0we are concerned that the withdrawal of key commitments at the World Trade Organization and in international trade negotiations will signal that the United States no longer stands by a free and open Internet. We ask that you reiterate the United States\u2019 twin commitments to preserving the Internet as a truly global medium and to retaining its ability to make specific adjustments to allow for critical public policy objectives such as the regulation of algorithmic systems to support privacy and equity.<\/p>\n\n\n\n Late last year, the U.S. Trade Representative withdrew support for a number of commitments at the World Trade Organization that underpin a global, open Internet,\u00a0including opposing forced data localization, supporting the free flow of information, combatting mandatory transfers of intellectual property, and championing non-discrimination for information products.\u00a0Advocates and governmental bodies have long championed these commitments as key for fostering human rights and ensuring access to information globally.\u00a0As former Federal Communications Commissioner Michael Copps observed in early net neutrality debates over two decades ago, these commitments reflect the recognition that \u201cInternet openness and freedom are threatened whenever someone holds a choke-point that they have a legal right to squeeze. That choke-point can be too much power over the infrastructure needed to access the Internet. And it can also be the power to discriminate over what web sites people visit or what technologies they use.\u201d\u00a0Those concerns apply whether the discriminatory power is exercised by private power or public authorities.<\/p>\n\n\n\n The United States\u2019 withdrawal of its commitments may be read to signal an abandonment of those principles of openness, freedom, and non-discrimination:<\/p>\n\n\n\n Abandoning those commitments can result in concrete harms. For example, data localization mandates might impact a global service like Wikipedia (the free online encyclopedia created and maintained by volunteers around the world) and its users worldwide. Over the past decade, the Wikimedia Foundation (the nonprofit that hosts Wikipedia) has received an increasing number of requests to provide user data to governments and wealthy individuals, who wish to censor accurate public information or to identify and take retaliatory action against the volunteers editing Wikipedia.\u00a0These mandates would worsen this trend by subjecting the data of vulnerable individuals to direct seizure by authorities that do not respect human rights.<\/p>\n\n\n\n Besides threats to privacy, free expression, and even the safety of Wikipedia volunteer editors, the financial costs of establishing data collection and storage facilities in countries around the world would threaten the economic viability of nonprofit, small businesses, and larger commercial entities alike.<\/p>\n\n\n\n Growing requirements for data localization are happening alongside a global crackdown on free expression. And people\u2019s personal data\u2014which can reveal who they voted for, who they worship, and who they love\u2014can help facilitate this. Rwanda\u2019s data protection law, for instance, mandates that companies store data locally unless the country\u2019s non-independent cybersecurity regulator approves otherwise. This requirement leaves personal data easily accessible in an environment in which authorities have embedded agents in telecommunications companies and used data from private messages to prosecute dissidents.\u00a0Similarly, in Uzbekistan, authorities temporarily blocked Skype, TikTok, Twitter, VKontakte, WeChat, and other popular platforms due to their noncompliance with a data localization law, severely limiting people\u2019s ability to communicate and access information.\u00a0Rwanda and Uzbekistan are not outliers. 78 percent of the world\u2019s Internet users live in countries where simply expressing political, social, and religious viewpoints leads to legal repercussions.\u00a0The United States should maintain its longstanding opposition to these requirements.<\/p>\n\n\n\n While there are a range of reasons companies have resisted data localization requirements, some are at least in part doing so over concerns they will be complicit in government repression. When data is not stored locally, the respective government often must go through a legitimate\u2014albeit far from perfect\u2014legal process for accessing the information from U.S. companies. But when data is stored on local servers, the ability for companies to resist problematic state demands is hampered. This challenge is further compounded by the emergence of so-called hostage-taking laws, in which international companies are required to have a local presence in a particular country, curbing their willingness to push back against user data requests over concerns for employee safety.<\/p>\n\n\n\n Nonetheless, firm commitment to a free and open Internet does not mean surrender to an\u00a0unregulated<\/em>\u00a0Internet. For example, U.S. civil rights statutes apply to foreign entities that discriminate against individuals in the United States,\u00a0and neither housing data abroad nor engaging in international data flows will undermine domestic regulation of discriminatory algorithmic decision-making. Regulations of data and AI such as the European Union\u2019s General Data Protection Regulation and the California Consumer Privacy Act became law years ago, and there has been no credible challenge under international trade law to either, despite pro-business commentary insisting as much.<\/p>\n\n\n\n Moreover, well-scoped exceptions in treaty language can help protect regulatory goals in regulation of data and AI. International digital trade agreements have long sought to accommodate legitimate public policy objectives. For example, the USMCA recognized an exception to its prohibition on restricting cross-border data flows to \u201cachieve a legitimate public policy objective.\u201d\u00a0Well-scoped exceptions in negotiations at the WTO and elsewhere may similarly allow for flexibility for domestic regulation to address emerging harms; indeed, some of the signatories of this letter have recognized the need to ensure that international agreements do not \u201cthwart\u201d algorithmic impact assessments and audits.<\/p>\n\n\n\n Similarly, Congressional leaders have recognized that source code protections should \u201censure that countries [cannot] force businesses to surrender their source code or share it with domestic competitors as a condition of doing business, while preserving the ability of governments to access source code to achieve legitimate public policy objectives, such as conducting investigations and examinations and promoting consumer health and safety.\u201d\u00a0Long-standing U.S. policy supporting an open Internet is fully consistent with exceptions to achieve these legitimate public policy objectives.<\/p>\n\n\n\n But these exceptions should be concrete and appropriately scoped. The United States should lead both<\/em> in establishing thoughtful regulations to support equity and privacy and<\/em> in protecting an open and free Internet. The United States should clarify immediately that both sets of goals remain at the heart of U.S. policy.<\/p>\n\n\n\n We thank you for your consideration.<\/p>\n\n\n\n Read more from ITIF + a full list of signatories.<\/a><\/em><\/strong><\/p>\n\n\n\n\n