Trouble ahead

As the UK leaves the EU, trade deals are top of the political agenda, but one major trade negotiation is sliding by almost unnoticed by the UK public. The ‘e-commerce’ deal currently being negotiated at the World Trade Organization (WTO) could close down our space to regulate digital companies. This has potentially huge ramifications for areas as diverse as workers’ rights, citizens’ privacy and the viability of the NHS.

Digital platforms need to be better regulated. Uber has once again lost its London licence, following safety failures including allowing a known pedophile to give rides. Major elections and the Brexit referendum have been influenced by the ‘unethical’ mining of our data from Facebook profiles. Even NHS Trusts are signing deals with Google, despite serious concerns in the United States (US) following a handover of health records with the patients’ names still on them.

Despite these issues, leaked documents show that the UK has been pushing (via the European Union) for the WTO’s e-commerce deal to be ‘as ambitious as possible’ and our government hopes to go even further through a trade deal with the US.

The WTO e-commerce negotiations are seen by some as a simple attempt to bring trade rules into the 21st century. This implies that the rules could provide much-needed regulation of digital space.

In fact the opposite is true. In trade fora, talks are obliged to centre around a single goal – liberalisation. Any rules that emerge from this WTO process will therefore be about removing- rather than increasing regulation. This principle is reflected in countries’ submissions to the negotiations, which contain provisions that could best be described as ‘anti-rules’, as they will close off many policy options which could otherwise help to protect us from the side effects of digitalisation.

E-commerce rules pose a range of challenges to fair digital regulation.

Firstly, our ability to maintain a safe online environment could be challenged, as the US seeks to use the WTO deal to limit the liability of platforms like Facebook and Youtube for harmful content. This would prohibit laws such as Australia’s sharing of abhorrent violent material act which was enacted following the New Zealand mosque shootings, as such laws can lead to heavy fines for platforms if they fail to act immediately to take down posted content. Countries should be free to tackle online harms by whatever means they consider effective, but their space to do so could be greatly reduced through the WTO deal.

Another worrying proposed rule is a ban on obligations for companies to reveal their source code and algorithms (the coding that makes software function). This ban could hamper efforts to prevent discrimination, fraud and other serious problems.

There are many good reasons why computer code may need to be checked by government bodies and regulators. Algorithms are used by a third of UK local councils to guide decisions in areas such as benefit claims, but software weaknesses have led to unjustified housing benefit delays that create a risk of homelessness. Big employers like Amazon are experimenting with artificial intelligence to sort job applications, but have found that the software ‘learns’ to identify and reject female applicants. Google’s secretive algorithms have even shockingly mislabelled photographs of black people as ‘gorillas’. In the Volkswagen emissions scandal, the cars’ software was rigged to cheat on emissions tests while continuing to pollute at illegal levels.

The coding that underlies these software clearly needs to be available to regulators so it can be checked for quality and for bias, but rules on this kind of disclosure may be blocked by the WTO deal.

Another key issue in the negotiations is the flow of data across borders. Countries like the US want to ban governments from controlling if and how data flows out of their country. They are especially keen to ban any requirements that certain data be stored or processed within national borders. This raises issues regarding both privacy and economic justice.

Privacy is a major concern given that data such as health records and banking information would likely be covered by the rule. Recent studies show that even apparently anonymised data can often be traced back to specific individuals, so further protections are needed to keep our data safe from those who would publish it or use it unethically, for instance to discriminate against job candidates who have a history of serious illness. Once data-sets are outside of our borders, it is difficult or even impossible for our government to ensure they are being used in appropriate ways. We need to retain the right to control data flows when this is a serious concern.

The economic justice issue is more complex but no less pressing. The data that we generate when using apps and smart technology belongs not to us but to the companies whose tools we use. Most of us are unconcerned about this, but these companies are becoming wildly rich partly as a result of this public giveaway. Seven of the 10 most valuable companies in the world are tech firms.

This could become a huge issue for the NHS as healthcare becomes increasingly reliant on data. Many kinds of health data from patient consultations, scans and smart medical devices is initially gathered by private providers, who may export it out of NHS sight. A progressive government may prefer to retain this data within the NHS system, where it could be used at low cost for the development of medicines, personalised care, and health system planning. Alternatively this data could be sold at fair value (estimated to be £10bn) to analysis companies, thereby off-setting the cost of buying back the resulting insights. Such a policy would, however, be at serious risk of challenge under e-commerce rules, which are likely to ban these kinds of controls on data flow.

Justice for workers could also be challenged by data flow rules. Platform workers, who generate valuable data for companies, are being paid as little as $3 per hour. Many, such as cleaners on the Handy.com platform suffer bogus self-employment, where they lack employee benefits such as paid leave, yet cannot negotiate their own pay rates with customers.

Stamping out these kinds of abuses will be no simple task. To get a handle on the situation, we may need to draw a line around certain kinds of company data, such as pay records and worker feedback, and keep it accessible to national regulators so they can judge whether violations of workers’ rights are taking place. However, taking this kind of control over data flows could be in contravention of the emerging WTO rules.

The WTO e-commerce negotiations throw up huge red flags for anyone wanting to harness the digital world for good. How then should a progressive government approach the issue of digital trade?

At a recent WTO event, Georgios Altintzis of the International Trade Union Confederation asked, “Should we stop digital innovation? No – quite the contrary. We should be free and unafraid in thinking about how we spread the value it generates.”

Truly sharing the benefits of digitalisation with workers and citizens will require new kinds of digital regulation. This could include:

• A rule, as proposed by the co-founder of Facebook Chris Hughes, that the value derived from data be shared with the workers and citizens that generated it.
• New levels of software transparency and worker and consumer protection, to ensure that digital tools are fair, high-quality and free from bias.
• Technology or data-sharing requirements that maximise the pace and social benefits of innovation.

However measures like these could be severely hindered by the emerging e-commerce rules.

As we now leave the EU, the UK will have the option of joining the WTO e-commerce negotiations in our own right. We should follow the demands of civil society around the world and firmly turn down that invitation. We must also strike out or drastically rewrite digital chapters in any future trade deals.

To create a digital world than benefits all, we must be bold in regulating the digital economy. That means rejecting inappropriate digital trade rules that would tie our hands.

Photo credit: www.cerillion.com/Products/SaaS/Cerillion-Skyline [via Flickr]