Did NAFTA 2.0 sign away digital future?
Deal demonstrates lack of foresight, Tamir Israel and Laura Tribe write.
As Canada claims victory for salvaging North American free trade, the true cost of capitulating to the United States’ blustering may be too high to warrant celebration. The long-term harms to digital rights and innovation policy that will flow from NAFTA 2.0 — officially the United States-Mexico-Canada Agreement (USMCA) — are difficult to fully predict but unquestionably serious.
Setting digital policy in trade agreements is a bad idea. Agreements develop in a highly secretive environment that excludes critical participation of public interest stakeholders. They are also inflexible, requiring difficult trade-offs and protracted, multilateral negotiations for even minor amendments — a persistent barrier to implementing the periodic and necessary changes that ensure laws and policies keep up with the rapid pace of innovation.
Against this backdrop, NAFTA 2.0 commits Canada to damaging digital policies, undermining ongoing national policy debates that will have long-standing negative implications for innovation and digital rights.
The deal imposes a one-sided upending of Canada’s carefully calibrated balance between content providers and individuals, even as Canada undertakes a comprehensive national review. Copyright holders are granted an arbitrary extension in copyright terms, imposing massive costs on the Canadian public — with no clear benefits in exchange. Currently, Canada protects copyright for 50 years past the death of a creator, the international standard. The new term will be life plus 70 years, despite evidence that continued extensions do little to further copyright’s primary objective of incentivizing creativity.
The agreement also grants one Canadian broadcaster a windfall by bizarrely compelling Canada to reverse a regulatory decision. Bell Canada will be permitted to replace popular U.S. Super Bowl advertisements with its own highly profitable substitutes. It remains unclear why this gift to Bell is enshrined in a trilateral trade agreement.
The new digital trade chapter demonstrates a lack of foresight and undermines Canada’s ability to address forthcoming policy challenges. It embeds flawed self-regulatory approaches to cybersecurity and the protection of privacy in cross-border contexts at a time when our personal data and digital activities require bold legal protections. It further precludes another essential and ongoing national debate regarding data sovereignty, as elements of our cities, homes and cars are infused with data-gathering sensors.
We are only beginning to understand the full consequences of a world driven by artificial intelligence, yet the agreement will impede our ability to make algorithmic processes transparent and accountable to the public. As companies rush to obscure the choices shaping our lives behind opaque automated algorithms, we can’t afford to cede our ability to ensure these decisions are made in an open and non-discriminating manner.
The only aspect of NAFTA 2.0 that is mildly responsive to how the internet works is its treatment of digital platforms — the internet Service Providers, social media sites and search engines that are the connective fibre of the internet. Platforms will be guaranteed necessary immunity from legal consequences for content generated by users, avoiding overly aggressive content removal schemes that result when platforms are forced to police user content under threat of legal penalties. However, even these critical protections are poorly calibrated.
First, these platform immunities could prevent legal obligations for much-needed transparency, proportionality and appeal mechanisms in the autocratic content removal processes voluntarily adopted by many platforms.
Second, they embed exemptions for controversial laws currently being challenged as unconstitutional in the United States. Responsibility for copyright infringement is also categorically excluded from protection against liability. While NAFTA 2.0 permits Canada to retain its current copyright platform liability regime, it also locks us into that model. Instead of retaining the ability to improve the system, any update attempts will trigger an obligation to adopt a failed U.S. content removal approach which continuously leads to censorship of legitimate, non-infringing content.
Against this litany of concessions, it remains to be seen what counterbalance the federal government will offer to maintain Canada’s open internet, digital privacy, and commitment to building a strong innovation and tech environment. With the bar for victory set so low that any agreement appears a success, the celebratory mood is perhaps no surprise. Yet having traded away so many of our digital rights and policy interests, Canada will now be hard-pressed to address the damage to its digital ecosystem. Tamir Israel is a staff lawyer at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), a digital rights legal clinic based at the University of Ottawa. Laura Tribe is the executive director of OpenMedia, a community-based organization working to keep the internet open, affordable and surveillance-free.