Don’t forget big data in TTIP and TISA

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Svend Aage Christensen [DIIS]

The issues of data sovereignty and data protection have been sadly lacking in the debate on trade agreements, writes historian Svend Aage Christensen.

Svend Aage Christensen is former research director at DIIS, the Danish Institute for International Studies.

It is crystal clear what corporations want in the Transatlantic trade greement (TTIP) and the other treaties being negotiated: a commitment to allow cross border data flows and data-processing across all services sectors, including financial services, without any limitations. They consider requirements to use local network infrastructure or local servers as discriminatory, with potentially adverse effects on trade. According to Michael Froman, the American chief negotiator, this is high on the agenda in the trade negotiations.

It is common to talk about big data as the raw material of the new digital economy of the 21st century, and as an important factor in every industry and business function.

In agriculture, for example, the farmers transfer large amounts of business and production information regarding their planting, production and harvesting practices to their service providers. All this data can be connected in business models, where the sale of seeds, plant protection, fertilizer, sensor capacity, analytical capacity and high-tech equipment may be combined with marketing of the crop and with banking, insurance and pension services. This can be used to make the farmer totally dependent and thereby further strengthen monopolistic features among the service providers.

Big data floods all aspects of life. As the first big insurance company in Europe, the Italian based Generali Group is now aiming at digital control of its customers. Via an app, they are expected to send data regarding their health, fitness, lifestyle etc. to Generali, and may be awarded a cheaper premium, if they are in good shape. Predictably, some algorithm will determine that we need to pay higher health insurance premiums, if we refuse to have our bodies hooked up to cables, or if we don’t exercise daily.

With its Safe Harbour decision (2000) the Commission sought to reconcile considerations concerning free trade and data protection, but it has not had the desired effect on American law. An adequate level of protection has not been ensured regarding the handling of sensitive personal information of Europeans by the big US companies.

By the way, using the Electronic Communications Privacy Act, US authorities can order US companies to allow them access to the sensitive personal information of their European clients. According to a recent ruling by a New York District Court, this is the case even if the information is kept in European data centres. Microsoft in July 2014 lost the latest battle in a legal war against government demands that it turn over copies of e-mails it stores in Ireland. The District Judge upheld an April 2014 decision, endorsing the view that it was a question of control, not location, of the information and Microsoft must turn it over. Microsoft promptly appealed and the case goes before the U.S. Second Circuit Court of Appeals in summer 2015.

If the decision is upheld, European citizens will to an even higher degree find themselves in semi-subjection to America in this respect, and TTIP could make it worse. Apart from that, on a sharp, general note, a German expert has said that the inadequate level of data protection in the United States might be considered a trade barrier.

It is one thing to have free data flows in the EU, where our own institutions make the rules for data protection and we can develop our technological sovereignty, but quite another to have free data flows across the Atlantic without adequate US rules for the treatment of European data.

With fingers crossed behind their backs, the proponents of the free play of data flows of course vow that our data will be protected according to all guidelines provided and according to all the rules of the craft. They are trying, in the meantime, to veil the problems with publicity campaigns and semantic tricks.

There is no rush to enter into new agreements with the US about further liberalisation of data flows and data processing, before the problems of adequate protection have been dealt with.

Europe can have its own infrastructure without hindering cross border or, as it were, Transatlantic communications. For instance, in Germany, France and Finland companies are establishing e-mail and cloud services that respect European rules for data protection. That should not be negotiated away in TTIP. It may not be too late to succeed in reducing the potential dangers threatening Europe’s economic and technological sovereignty.

Data about our condition and behaviour are assets. Because the latter are produced through surveillance, they constitute a new asset class, which Harvard professor Shoshana Zuboff calls “surveillance assets.” Surveillance assets attract significant capital and investment which she suggests we call “surveillance capital.” Hence, she labels this variant of information capitalism “surveillance capitalism.” Surveillance capital generates profits the length of its value chain. Most aspects of our private and professional lives can be connected, commercialised and controlled.

In his classic work from 1956, C. Wright Mills described how American democracy had been undermined by the military-industrial complex, MIC. The trade agreements can become an extra tool in surveillance capitalism’s development of BIC, the business-intelligence complex, with democracy as a helpless bystander.

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