New radio regulations; Digital trade

New radio regulations; Digital trade
Photo by note thanun / Unsplash

At the WRC-23, the ITU-Radio sector meeting, 151 states signed 43 new resolutions, revised 56 existing ones, and suppressed 33 resolutions. You could read the 629 pages for fun, but the main resolution that I wanted to highlight is Resolution COM6/6 (pages 561-562) that spells out a new area of study that could eventually underpin technical specifications that limit unauthorized operation of non-geostationary satellites on the grounds of States' sovereign rights, which might have adverse impacts on the ability to use satellite connectivity to circumvent internet shutdowns or mitigate outages due to other causes.

Also at the WRC-23 was a heated debate about the use of the 6GHz band for unlicensed spectrum, which given the particular physical characteristics of this frequency, would be ideal for expansion of new kinds of wireless networks that small internet service providers and community networks might provide to extend internet and telecommunications access. Sadly the WRC-23 outcome seems to have built toward consensus to give 6GHz to mobile operators.

In other news:

Digital trade briefing: The US has an opportunity to re-calibrate its positions in international trade negotiations to preserve and promote regulatory spaces in the interest of consumers and people. One step to achieve public interest outcomes in digital trade is through more open and multistakeholder engagement in negotiations. 

From 25 October 2023 U.S. Trade Representative Katherine Tai has withdrawn previous U.S. digital trade demands in World Trade Organization e-commerce negotiations summarized in a draft Joint Statement Initiative. This move is aimed at giving Congress more flexibility to regulate big tech firms. The U.S. has stepped back from proposals that it first made in 2013 during the Trans Pacific Partnership negotiations, and which called for free cross-border data flows, with very limited public policy (privacy, data protection, etc) exceptions. These now-abandoned positions also included hostility towards open source and rejecting software source code reviews. The USTR’s decision has sparked controversy, with some civil society groups assuming this is an abandonment of open internet principles. Lawmakers and business groups fear it could disadvantage US firms. However others, including Democratic Senator Elizabeth Warren, Public Citizen and Coalition for App Fairness, applaud these reversals as a departure from Big-Tech-led efforts to use trade deals to escape regulation in the US and in many, many other jurisdictions where trade agreements bind the hands of legislatures. 

The Internet Society argues that the USTR's decision undermines fundamental aspects of a free and open internet. These principles include support for cross-border data flows, opposition to mandated data localization, discriminatory data policies, and demands to access source code of foreign companies. The article highlights that abandoning these principles threatens the growth of a unified, decentralized global internet, restricts global communication, and could lead to fragmented national or regional internets, undermining human rights, education, and economic opportunities. However there is conceptual confusion about data free flows and the free flow of information, the former being concerned with companies’ business models and the latter of which is more concerned with the health of the internet. A deeper reading of these topics would include the important context of global digital trade and its role in internet governance.

For a more colorful understanding of the multi-decade saga of Big Tech and digital trade negotiations, Cory Doctorow provides a critical perspective on how, not just about what, the tech industry influences the USTR. He writes, “Today, with Big Tech in the driver's seat, US trade deals embody something called the "digital trade agenda," a mix of policies ranging from limiting liability, privacy protection, competition law, and data localization.” Doctorow makes an important connection– or paradox– between industry-led trade strategies and regulatory capture, whereby industry interests are destined to prevail over the public interest. This narrative is important to understand the processes and partnerships through which the tech industry leads the USTR by the nose: producing influential reports and data and leveraging trade agreements to impose desired policies domestically. In order to correct course on digital trade, the USTR must urgently include more engaged experts from civil society. 

To bring it all together, Burcu Kilic gives a terrific overview of the USTR’s move and motivation, seeing this moment as very opportune. In the previous six weeks we have seen a strong, organized and concerted effort by industry to push back against the USTR’s decision, Kilic wants us to take two strategic steps forward: 1) in support of the USTR to recalibrate digital trade strategies in future digital trade negotiations and 2) to create better domestic policy-making in favor of comprehensive federal privacy legislation, for starters. Ultimately this decision signals a shift from the previous laissez-faire approach by the United States that allowed tech companies minimal regulation, aiming now to align trade policies with modern digital realities and public interests, including competition, privacy, and AI regulation.

USTR has over indulged Big Tech and course correction is welcomed and needed. Backing out from these controversial WTO e-commerce positions was good for users, and potentially more should be abandoned– watch civil society organizations and non-industry digital trade experts for more nuanced and informed discussions like Public Citizen, Coalition for App Fairness, Transnational Institute and Rethink Trade.

Protecting user privacy should be done through national regulation not traded off for multinational profits– it’s time to put this decision to work for federal privacy legislation in the United States.

Any future trade negotiations should: Abandon any intellectual property provisions including trade secret protections for source code and algorithms. Fight for open source, especially as audits and accountability in AI systems become important. Introduce self-standing exceptions for privacy, data protection, competition, and other public policy measures we need now and will need in the future.

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