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What We Know About the Secretive Trans-Pacific Partnership that Was Just Signed

by Jordan Pearson
Oct 5 2015, 7:21pm

Image: Flickr/SumofUs

The Trans-Pacific Partnership, a massive international trade deal between 12 countries including Canada, Japan, and the US, was signed on Monday after seven years of secret negotiations.

To anyone who hasn't been obsessively following the drama leading up to today's signing, that probably sounds boring as hell. You're not totally wrong. But buried in the reams of dry legal jargon of the Trans-Pacific Partnership (TPP) are stipulations that will affect everything from access to pirated movies and music, to government spying, to the price of life-saving drugs around the world.

Just as significant as the actual contents of the TPP is the process that led to its signing, which some critics have called anti-democratic. Talks have been carried out behind closed doors among a select group of government representatives and corporate advisors. Almost everything we know about the agreement's contents comes from drafts of the chapters leaked to the internet, and the full text of the agreement is still secret.

Both the Canadian and US governments have released statements this morning describing, in broad strokes, what the final text of the TPP covers, however. Keeping these confirmations in mind, as well as previous leaks and speculation, here's what you should know about the trade deal of the century.

GOVERNMENT SPYING WILL BE EASIER

The internet is a global network of networks, but data privacy laws are a highly localized patchwork; data protected from snooping in one country might be fair game for the government in another. The TPP will make the internet one big data trough for foreign security agencies to feed out of.

The key point here is something called "data localization." To keep citizens' data from passing through foreign servers—particularly in the US—which might be tapped by national security agencies, countries like Canada and Australia (both TPP signatories) have taken steps to implement laws that ensure their data stays in the country.

When the TPP is finally released, expect the policy shitshow of the decade

These laws will presumably have to be reversed under the TPP, which prevents governments from making local data storage a requirement for doing business in-country, the government of Canada confirmed in a rundown of technical provisions in the TPP. For example, Google wouldn't be required to store Canadians' Gmail data in Canada, which critics say limits locals' control over their data.

This confirms what internet law experts and civil rights organizations like the Electronic Frontier Foundation have long believed, despite not having a leak of the relevant TPP chapter to refer to.

COURTS COULD ORDER ISPs TO BLOCK WEBSITES

The TPP's leaked intellectual property chapter revealed that the US is pushing to impose its "shoot first and ask questions later" style of copyright enforcement on the rest of the world, with a carve-out for Canada, which is a little more chill about the whole thing at the moment.

Even though Canada will be spared the US-style approach to copyright, which requires internet service providers to take down infringing content as soon as they're notified, the caveat comes at a cost: ISPs may have to "remove or disable" access to infringing material if a court orders it, which some critics have interpreted as opening the doors to website blocking in Canada.

What this means is that Canadians may actually be blocked from visiting sites like The Pirate Bay. Downloading music or movies not in the public domain is illegal, but similar sites can just as easily be used to download materials that don't infringe copyright. Blocking access to websites wholesale is a practice more reminiscent of China's Great Firewall than anything else.

This also assumes that copyright will be used "properly," that is, courts and copyright holders will target only pages and sites that actually host infringing content. This is not always the case. In the US, for example, open source coding platform GitHub has been hit in the crossfire of porn company copyright disputes.

Watch more from Motherboard: High Country, Part 1

TINKERING WILL BE CRIMINALIZED

Drafts of the TPP's intellectual property chapter, leaked as recently as July of 2015, describe new, mandatory criminal penalties for tinkerers who remove digital rights management (DRM) protections on products.

According to the Canadian government, the signed agreement both criminalizes "commercial scale" copyright infringement and generally "ensures strong and robust rules for the civil, criminal and border enforcement of IP rights."

This could mean, by way of hypothetical example, that farmers tinkering with their John Deere tractors so that they can use their preferred diagnostic software will be held criminally liable for bypassing John Deere's baked-in protections, even though they're not doing so with the intent of committing a crime. Removing watermarks and other identifying information from digital goods will also be a crime, according to the leaked chapter.

Canadian copyright law doesn't list any such criminal sanctions for DRM circumvention, internet law expert Michael Geist told me last month, meaning that the law will have to change to include such harsh stipulations.

PUBLIC COMPANIES MUST ACT LIKE PRIVATE CORPORATIONS

The TPP will force public companies—public broadcasters like the CBC in Canada, for example—to act like private corporations, privileging commercial concerns over civic ones.

This stipulation was confirmed by the Government of Canada in its technical rundown this morning, vindicating speculation that first arose from a leaked 2013 letter relating to TPP talks, which requested guidance on the topic of state-owned enterprises (SOEs) acting more like private entities.

The entire point of government-owned companies will be moot

Without a draft chapter relating to this provision to refer to, there's admittedly not much to go on here. But in forcing public companies to abide to the same business playbook as private ones, the entire point of government-owned companies—to provide a public service without the usual pressure to turn a profit—will be moot under the TPP.

State-owned enterprises in Forbes' Global 2,000 list of companies racked up more than $3 trillion in sales in 2013, which just goes to show that the TPP's new restrictions will have wide-ranging effects, especially in poor regions where SOEs play an important role in economic development.

DRUG PRICES MAY GO UP IN DEVELOPING NATIONS

The TPP requires that member countries implement copyright laws that will delay the approval of generic drugs and potentially drive up the cost of old ones.

Signatories will be required, for example, to make clinical test data for drugs exclusive to the companies that undertake the tests, even after the drug's patent has expired.

The Canadian government's description of the TPP stipulations with regard to pharmaceuticals suggests that the text of the agreement is largely in line with current Canadian law, but a recent report from the South Center concluded that developing nations will be hit hardest by the new provisions.

The TPP's drug requirements would, based on previously leaked drafts, result in an HIV treatment in Vietnam skyrocketing from $127 per year to $501 per year, according to a study by Australian and US researchers.

And you thought Martin Shkreli was bad. Thankfully, the Canadian government notes that TPP parties will have some "flexibility" in how they implement the data exclusivity requirements, but it's not clear that anyone will be fully exempt.

Watch more from Motherboard: Oil and Water

COMPANIES WON'T HAVE TO SHARE SOURCE CODE WITH THE GOVERNMENT

Volkswagen's most recent scandal, which revealed that the company's proprietary software was cheating emissions tests, raised calls to make such software auditable by the public, or at least the government. Under the TPP, this would be impossible.

The TPP contains provisions that "[Prevent] governments in TPP countries from demanding access to an enterprise's software source code," according to the Canadian government.

This may be problematic, as in the Volkwagen example, but it could also be a boon for companies that develop encryption software. In the US, the FBI has been pushing for "back doors" for security agencies in consumer encryption technologies. This would be awfully hard to accomplish, or verify, if these companies aren't obligated to show their code to the feds.

THE AGREEMENT IS STILL SECRET, BUT NOT FOR LONG

Even though we have a better idea of what will be in the finished agreement now that it's been signed, we still don't know what, exactly, the final text says. Most of the nitty-gritty details are only included in outdated drafts. This is a byproduct of the notoriously secret negotiations process.

The Trans-Pacific Partnership saga is far from over

There is hope, however: now that the TPP has been signed, reports suggest that the full text of the agreement will be available for review in about a month. President Barack Obama stated this morning that US citizens will have "months" to read the agreement before it's approved by Congress. When the TPP is finally released, expect the policy shitshow of the decade.

COUNTRIES CAN STILL BACK OUT

Finally, what is important to note is that while the TPP has been signed by its delegates, it's not been ratified back at home. As previously mentioned, Congress still has to debate and approve (or reject) the deal.

In Canada, the TPP's standing is even more tenuous. The agreement was signed in the middle of an election, when the government is supposed to be in "caretaker mode," which prevents it from making decisions that bind future governments. Thus, any new government has the ability to reject the TPP, even though it's been signed, and both of the main parties running against the incumbent Conservatives have stated that they would reconsider the deal, or wouldn't consider themselves bound by the TPP.

In short, the Trans-Pacific Partnership saga is far from over.