“Those who would gain all under heaven by tampering with it — I have seen that they do not succeed. Those that tamper with it, harm it. Those that grab at it, lose it.”

Prosaic modern economists occasionally echo him, with the unexciting but sometimes correct advice: “Don’t just do something, stand there.”

As the World Trade Organization (WTO) prepares for its 13th Ministerial Conference late in February, both the ancient sage and the modern wonks are offering very good (if also very modest) advice on the most modern of all technologies: the internet and the world’s digital economy. If the WTO members take heed, they will help growth and development in lower-income countries, and simultaneously help the Biden administration achieve its goal of a more “inclusive” trading system that does more to create opportunities for the small and the less powerful “empowering small businesses to enter the market, grow, and compete.”

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The WTO’s 164 members have some significant calls to make this month, on an array of agenda topics ranging from fishery subsidies to agricultural stockpiling, intellectual property, and — not least — whether to extend their quartercentury-old pledge for “duty-free cyberspace.” This policy, more technically if clunkily termed a “moratorium on application of tariffs to crossborder electronic transmissions,” represents a 25-year-old consensus — always temporary but regularly renewed at each WTO Ministerial meeting — which helped to create and continues to underpin the modern global digital economy. If they renew it, no WTO member would need to change policy. Rather, they would simply continue to refrain from grabbing and tampering, while focusing their energy on issues in need of activist policy, from privacy protection to cybersecurity and action against disinformation. This commitment, simply by avoiding unintentional harm, would allow the digital economy to continue the natural growth that has helped hundreds of thousands of small businesses, and an uncountable but very large number of individuals, enter the global economy and find new ways to realize dreams and earn incomes.

The “moratorium,” however, is under some stress and criticism, mainly from left-populist NGOs and a few large developing-country governments. Their argument, fundamentally, is that the moratorium prevents taxation of data flows and therefore deprives developing-country governments of some tax revenue. But abandoning the moratorium would be a sad mistake, for global growth, for innovation, and for the governments who, in focusing on potential tax revenues (which, see below, are quite modest), are losing sight of their much larger growth and development opportunities. And it would be a sad mistake for the Biden administration’s hope for a more ‘inclusive’ trading system that offers more opportunity for small businesses and marginalized communities. Duty-free cyberspace remains critical to all these things, and the WTO members should enthusiastically endorse it once again. By way of context, the WTO’s “moratorium” dates to the late 1990s — the era just after the launch of the World Wide Web — and originates in prescient American thinking about the Internet’s potential future growth. Developed in that world of 150 million mostly American, European, and Japanese internet users, their hypotheses and projections look very good a quarter-century later. Here for example is that era’s U.S. Trade Representative, Charlene Barshefsky, explaining the early U.S. agenda in 1999:

“Moving on from the foundational commitment we won from the WTO members in 1998 on the principle of “dutyfree cyber-space” — that is, ensuring that electronic transmissions over the Internet remain free from tariffs — we are moving on to a longer-term work program. Its goals include ensuring that our trading partners avoid measures that unduly restrict development of electronic commerce; ensuring that WTO rules do not discriminate against new technologies and methods of trade; according to proper application of WTO rules to trade in digital products; and ensuring full protection of intellectual property rights on the Net. At the same time, we are working with individual trading partners on a series of related questions — for example, on privacy issues where we have worked closely with the European Union to create a model that both protects consumer privacy and prevents unnecessary barriers to transatlantic economic commerce.”

Her list of topics remains strikingly current. Some of the issues she cites still raise complex questions within the United States and are still politically contested both within countries and between large trading economies and technological powers. Technical debates over copyright continue to animate thinkers and lawyers in Silicon Valley and Hollywood, for example; likewise, the U.S. and the European Union still argue over privacy while working to preserve cross-Atlantic data flows. But two things seem clear.

One, the “foundational” moratorium on tariffing electronic transmissions remains at the heart of digital policy. In pleasing contrast to many trade agreements, it is a short one-sentence commitment in plain English. (Or plain French, or plain Spanish — the other two official WTO languages.) The actual texts of its first 14-word iteration, and the slightly longer renewals in 2019 and 2022, read like this:

“Members will continue their current practice of not imposing customs duties on electronic transmissions.” (Original moratorium in 1998)

“Members agree to maintain the current practice of not imposing customs duties on electronic transmissions until the 12th Ministerial Conference.” (2019 renewal)

“We agree to maintain the current practice of not imposing customs duties on electronic transmissions until MC13, which should ordinarily be held by 31 December 2023. Should MC13 be delayed beyond 31 March 2024, the moratorium will expire on that date unless Ministers or the General Council take a decision to extend.” (2022 renewal)

And two, in practical terms it continues to work. Over this quarter-century of not grabbing and not tampering:

World Internet Population Up by More Than 5 Billion: As governments have “stood there,” the world’s Internet user population has grown from 150 million to 5.5 billion, or from about 4% to 60% of humanity.

Over 1000-Fold Rise in Data Transmission: Transmissions of data over the Internet, estimated at 100 quadrillion bytes in 2000 by Cisco Systems in its fondly remembered “Visual Networking Index,” rose to 93 quintillion in 2017 — nearly 1,000-fold — before the Cisco statisticians gave up trying.

U.S. Domestic E-Commerce Up by $35 Trillion: The level of e-commerce within the United States has grown from the $700 billion Ambassador. Barshefsky noted in her speech (as estimated by the Commerce Department) to $36 trillion, a figure now about 30% greater than the U.S.’ $26 trillion GDP. Internationally no such figures exist, but the WTO’s most recent annual statistical summary, World Trade Statistics 2023, points to a single form of electronic commerce — digitally enabled trade in services — as the most dynamic element of 21st-century trade:

“Looking back through the entire pandemic period, computer services were the most dynamic sector in services trade, with global exports in 2022 worth 44% more than their value in 2019. Digitally delivered services — that is, services provided via computer networks, from streaming games to remote consulting services — are an emerging source bodog casino of growth, accounting for 54% of global services exports in 2022, and 12% of total global trade in goods and services.”

New Industries Steadily Emerging: The moratorium has facilitated this by keeping the cost of data transfer low, enabling not only growth, but also the transformation of existing industries, and the creation of entirely new ones: “influencers,” social media, telemedicine, and distance education; or, alternatively, digital services integrated in manufactured goods from cars and medical technology to rice-planting machines and smartphones.

SMALL BUSINESS AND THE ‘DEMOCRATIZATION’ OF TRADE

The picture of trading firms has also changed noticeably and to the benefit of the smaller and less advantaged: digital technologies lower the costs of entry to the trading world for everyone, but disproportionately for small firms and individuals.

In-depth reviews of the challenges American SMEs (small and medium-sized enterprises) face in international trade done by the U.S. International Trade Commission in 2010 suggest obvious reasons why these businesses (and by extension individual entrepreneurs) would, relatively speaking, find special value in lowcost Internet access. They report particular challenges, for example, in finding overseas customers, navigating required customs documentation, securing payment, and managing returns. Large firms traditionally open overseas offices that settle these problems; small ones, except in special cases such as family firms with relatives in two or more countries, can’t. The smaller ones, with new access to low-cost email, data analytics, and social media, should be able to use digital technologies to (at least in part) compensate for this disadvantage.

Edward Gresser is Vice President and Director for Trade and Global Markets of the Progressive Policy Institute. Before joining PPI in October 2021, he served as Assistant U.S. Trade Representative for Trade Policy and Economics, and concurrently as Chair of the U.S. government’s interagency Trade Policy Staff Committee.

Malena Dailey is the Director of Technology Policy with the Progressive Policy Institute, where she works on issues relating to social media and the internet and technology sector.

To read the introduction as it is posted on Progressive Policy Institute’s website, click here.

To read the full report published by the Progressive Policy Institute, click here.

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Artificial Intelligence (AI) is emerging as a significant phenomenon in the global economy. As multinational corporations pour capital into acquiring AI start-ups, investment in cognitive AI systems is expected to reach USD 98 billion by 2023. The United States and China have established initiatives to pursue strategic dominance of AI, while several other developed countries are nurturing their own AI sectors. Such is the promise of creative destruction associated with AI that the concept of privacy, the nature of work, the accountability of governments, and the value of data must all be reviewed in response to AI-driven technological advancements. Indeed, concerns about the ensuing public interest implications have provoked a series of responses by national legislatures as States attempt to fill the regulatory vacuum.

While international economic law literature is becoming increasingly cognisant of AI, the interaction between AI and investment treaties remains uncharted territory. Scholars have addressed how AI will exacerbate the ‘digital divide’ within cross-border trade, contribute to data-driven research within international economic law, and even generate treaties to predict the outcome of negotiations. Broader issues of international arbitration have similarly been scrutinized within the context of AI, for predicting outcomes, selecting arbitrators, and calculating damages. In contrast, AI’s interaction with investment treaties has garnered little attention, and is the focus of this article.

The central thesis is that the international investment regime provides an unpredictable legal environment in which to adjudicate the emerging norms and ethics of AI. Reforms to drafting and to practice are necessary to prepare investment treaties for an AI-driven future.

This article proceeds in five Sections. Section 2 considers the components and regulation of AI. It is argued that AI regulation – including limitations on market access, utilization of automated decision-making systems, restrictions on cross-border data flows, and mandated algorithmic transparency – may constitute barriers to investment. Section 3 discusses the conditions for AI to be within the scope of protected investment in international investment agreements (IIAs). Section 4 analyses whether measures targeting AI are in compliance with substantive investment obligations. Having identified areas of potential breach, Section 5 finds that existing exceptions clauses within IIAs are too narrowly drafted to encompass the relevant policy concerns. As a result, Section 6 proposes three reformative measures to optimize investment treaties for the AI-powered investor and AI-powered host State.

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These charges are unfounded. On the contrary, digital trade is critical to the success and growth of the American economy, a recent U.S. Chamber study found, and American workers have benefitted tremendously as the digital economy has generated high-wage jobs, innovative products, and market opportunities at home and abroad. Considering the benefits of digital trade: 

Companies of all sectors and sizes are benefiting from digital trade. One of the chief claims in the AFL-CIO’s report is that large technology companies are the main beneficiaries of digital trade. Ask almost any company operating in today’s economy, and they are likely to disagree.  

Industries of all sectors and sizes have reaped benefits of digital innovation. The U.S. Chamber study, entitled The Digital Trade Revolution: How U.S. Workers and Companies Can Benefit from a Digital Trade Agreement, found that a diverse range of firms, from transportation, warehousing, and agriculture to arts and entertainment have been empowered to seize new market opportunities abroad as a result of advances and investments in new digital technologies.  

Services, which make up a majority of digital exports​ and the majority of U.S. jobs​, have experienced strong growth in the U.S., but the potential for further expansion internationally is vast. U.S. digital exports — often called ICT-enabled or potentially ICT-enabled services in government reports — have more than doubled in the past 10 years, making it one of the country’s fastest growing export sectors, unleashing new opportunities for huge numbers of workers.​​ ​More than 20 million Americans work in the business and professional services sector, a majority of which can be traded digitally.​ 

Digital trade is transformative for small business exporters. Digital tools are allowing more small business exporters to expand their reach to international markets. Consider: 

• First, digital advertising plays an overlooked but critical role in allowing U.S. small businesses to economically reach potential foreign customers in a targeted fashion. Small businesses simply had no such tools in the pre-internet era: Print advertising in newspapers or direct mail were never feasible options for U.S. small businesses trying to tap even nearby and familiar markets such as Canada or Europe. 
• Second, modern digital tools are revolutionizing payment collection, cited by small business exporters as a top challenge. Uncertainty around international payment collection was a principal brake on small business exports even a few years ago, but such risks and foreign exchange complexities can now be managed in a cost-effective manner by digital payment services. 
• Third, international shipment firms, including express delivery companies, today provide comprehensive services that handle customs clearance procedures and costs for small business owners who lack the expertise and time to tackle the minutiae of such matters. The evidence supports the view that online channels reduce transaction costs associated with international trade significantly. 

Another U.S. Chamber report, entitled Growing Small Business Exports: How Technology Strengthens American Trade, uncovered some surprising findings. Based on a national survey of more than 3,800 small businesses and a related economic analysis, the report produced a new estimate that 9% of U.S. small businesses currently export goods or services, a figure considerably higher than indicated by official statistics. The report estimated that small business exports supported more than 6 million U.S. jobs. Small businesses that export have been expanding the overseas markets they serve, the report found, from an average of seven countries in 2016 to 10 countries in 2018.  

Digital trade supports millions of good American jobs. The AFL-CIO asserts that digital trade does nothing but spawn low-wage jobs abroad — a dubious charge belied by the benefits foreign governments are securing via digital trade — but somehow fails to see the millions of excellent jobs it’s creating here at home. The digital economy has proven a huge and growing source of employment in the U.S. with 7.7 million jobs and counting in all 50 states. The number of digital economy jobs has grown at an average rate of 2.7% over the last decade, compared to 1.6% for all jobs, and the digital economy has experienced wage growth of 5.9%, compared to 4.2%. As the U.S. Chamber’s Digital Trade Revolution explains:   

“Jobs tied to the digital economy can be found in nearly every sector, and their number is growing at a faster rate than that of overall job growth over the last decade. These jobs pay well, and compensation growth for digital jobs exceeds that for all jobs generally.” 

Should digital trade continue to prosper, the U.S. economy is poised to create many good, highly-compensated jobs right here at home.  

Data flows sustain growth in almost every sector. The cross-border transfer of data underpins the U.S. and the global economy. No company, regardless of sector, can do business, let alone engage in international trade, without the ability to transfer data.  

The AFL-CIO expresses concern in its report that “unfettered cross-border data flows” put worker and consumer privacy at risk. The group also maintains that data localization policies can not only be justified but should be authorized. Specifically, the report says:  

“Governments should have the ability to require that individuals’ sensitive personal information… or data related to certain sectors… be kept onshore to ensure it is subject to strong and enforceable privacy standards and effective government oversight.” 

However, contrary to these assertions, the ability to transfer data across borders does not impede data protection, nor do data localization policies guarantee privacy. How data is protected is more consequential than where it is stored, and mandating local storage of data is often counterproductive to data protection. In fact, it serves as a barrier to trade and poses a threat to economic growth and new market opportunities for American businesses. 

Further, concerns that these principles are “rigid restrictions on the measures governments can adopt to promote legitimate public policy interests” are unfounded. Enshrining the commitments to protect cross-border data flows and prevent mandated data localization in trade agreements does not preclude policymakers in the U.S., or other governments, from passing robust federal privacy legislation, something the U.S. Chamber has pressed for.

The effort to “preserve robust public policy space” in digital trade agreements is code for making those agreements toothless and unenforceable. And given the U.S. role as a leading digital innovator, American workers and companies stand to gain tremendously from the continued ability to move data across national borders — and much to lose should digital protectionism spread. As the U.S. Chamber advocates in its Digital Trade Priorities, these policies can work hand in hand to uphold high standards in privacy, while at the same time promoting trade and innovation. 

Ensuring high standard commitments: The “sweeping nature of these commitments” in U.S. agreements with Canada and Mexico or Japan alarms the AFL-CIO. What is, in fact, truly alarming is the number of onerous digital regulations cropping up from governments around the globe. A study by the Information Technology & Innovation Foundation found that “the number of data-localization measures in force around the world has more than doubled in four years. In 2017, 35 countries had implemented 67 such barriers. Now, 62 countries have imposed 144 restrictions— and dozens more are under consideration.” The experience of U.S. Chamber member companies affirms this trend and its widespread nature. 

Many of those measures discriminate against U.S. companies. Others offer little to no flexibility to account for evolution in the digital economy. These provisions not only harm industry’s ability to do business but will result in lost jobs for American workers both at home and overseas.  

American leadership on digital trade has resulted in high-standard digital provisions found in global pacts. Rather than facilitating an “unregulated status quo,” digital trade binds countries to principles that support a growing, innovative, and competitive economy. In fact, as the U.S. Chamber has written, these very commitments protect American workers and companies from harmful and discriminatory rules that target the U.S. economy more than any other. 

U.S. workers, consumers, and industry have reaped the benefits of digital trade, proving that when offered the opportunity to compete on the global stage, American dynamism flourishes time and again. A worker-centered digital agenda should support that strength rather than stifle it.  

Mary Kate Carter is Associate Manager of International Policy at U.S. Chamber of Commerce

John Murphy is Senior Vice President of International Policy. He directs the U.S. Chamber’s advocacy relating to international trade and investment policy.

To read the full trade agreement, please click here. 

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Yet no one knows how to build or sustain trust in the face of rapid data-driven change. Online ‘trust must be negotiated with others whom users do not see, with faraway enterprises, under circumstances that are not wholly familiar, in a world exploding with information of uncertain provenance’. 

Since the onset of the global pandemic, individuals, companies, and governments have become increasingly dependent upon the internet and data-driven services to work, learn, and socialize. These new services helped sustain the global economy and allowed many to connect, work, study, and prosper online through lockdowns. Yet because many of these services are built on the collection, analysis, and monetization of personal data, they also threaten our autonomy, individual rights, and systems of governance. The US National Intelligence Council has issued a stark warning that: 

privacy and anonymity may effectively disappear by choice or government mandate, as all aspects of personal and professional lives are tracked by global networks. Moreover, real-time, manufactured, or synthetic media could further distort truth and reality, destabilizing societies at a scale and speed that dwarfs current disinformation challenges. 

These concerns about online security are reflected in surveys of users. In 2019, the Pew Foundation found that many people are afraid that their data are used without their consent, and concerned that firms use their clients’ personal data to discriminate and manipulate them. Likewise, CIGI and IPSOS suggested 75 per cent of 25,000 users polled cited Facebook, Twitter, and other social media platforms as contributing to their lack of trust. In the same survey, 78 per cent of respondents were concerned about their online privacy, with over half more concerned than they were a year ago. Similar concerns are seen in data collected by the Oxford Internet Institute in 2020 which showed that for those active online, around half are concerned about disinformation and 71 per cent of internet users are worried about a mixture of online threats, including disinformation, fraud, malware, spyware, and harassment. 

Given this situation, in 2019 Prime Minister Shinzo Abe of Japan decided that he could both reinvigorate negotiations over cross-border data flows at the World Trade Organization (WTO) and build trust in policy-makers’ efforts to govern data. Policy-makers have been trying to negotiate such rules since the first e-commerce agreement (Australia/Singapore) in 2003. Abe stated that he wanted the Osaka meeting of the Group of 20 nations (the G-20) ‘to be long remembered as the summit that started world-wide data governance… under the roof of the WTO’. He noted that data-driven services are built on data collected from individuals in one country and often stored or analysed in another. Such cross-border flows underpin both the internet and the global economy. Hence, data free flow with trust meant that countries would allow medical, industrial, and other nonpersonal data to freely flow across borders, but ‘put our personal data and data embodying intellectual property, national security intelligence, and so on, under careful protection’. 

However, although Abe argued that certain types of data needed special rules to facilitate trust, he never explained what these rules should look like and how nations might find an internationally accepted approach to such rules. Despite the lack of clarity, other international organizations have underscored the concept that data will not flow freely without trust, including the G-20, the OECD,3,5 the World Economic Forum, and most recently the G-7. Despite this consensus on the need to link free flow and trust, the trade regime is not the only or best venue to discuss this issue. Policy-makers discuss trust and data flows at other venues including the UN and the OECD. But trade agreements are binding and generally disputable. Moreover, digital trade agreements generally include language making the free flow of data a default, with certain exceptions. These agreements also address measures that can distort the free flow of data, such as spam. 

This author is deeply ambivalent about this focus on trade agreements as a tool to govern data. First, although data are constantly exchanged between entities in different countries, such exchange is not always accompanied by a transaction and may not be ‘traded’. Moreover, data are multidimensional—they are not just a commercial asset but a public good and a national security problem. Policy-makers have not figured out how to encourage data sharing and the broad use of data to address wicked problems that transcend nations and borders, such as climate change. Finally, much of the data flowing across borders are aggregated and allegedly anonymized personal data. While users may benefit from services built on data, the people who are the sources of Bodog Poker those data do not control them. The data are their assets, yet they cannot manage, control, exchange or account for them. Individuals’ data can essentially be weaponized to create malicious cross-border data flows, whether through disinformation, malware, spam, or other means. Nonetheless, trade agreements are vehicles to build trust because they are commitment devices. They build trust by clarifying how and when nations can trade and how and when they can violate trade rules. 

Policy-makers are eager to build trust in how they govern data. But the process of negotiating trade agreements (which is secretive) could be problematic to engendering trust. Some believe that trade negotiations allow policymakers to deliver on behalf of special interests such as large digital platforms, rather than the broad public Others argue that because the process is secretive, policy-makers can avoid catering to national special interests. Hence, how policy-makers respond to what their citizens say they need or are concerned about is as important as what (the specific rules) when designing rules and institutions of governance. 

This paper focuses on both what policy-makers include in trade agreements and how they include these provisions. I focus on three concerns impeding trust online: internet shutdowns and censorship, disinformation, and ransomware (a form of malware). I will show that these problems are increasingly visible, and trade distorting. Moreover, all three may undermine trust, which could lead consumers and firms to be more cautious in their online operations. Over time, that could reduce market growth for users and providers of data-driven services.

To read the full article, click here

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