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60 What’s Ahead for Your Data in 2016? Who owns your data? Who decides what can you do with it? Where can you store it? What guarantee do you have over your data’s privacy? Where can you publish your work? Can you adapt software to accommodate your disability? Is your tiny agency subject to corporate regulation? Does another country have rights over your intellectual property? If you aren’t the kind of person who is interested in international politics, I hate to break it to you: in 2016 the legal foundations which underpin our work on the web are being revisited in not one but three major international political agreements, and every single one of those questions is up for grabs. These agreements – the draft EU Data Protection Regulation (EUDPR), the Trans-Pacific Partnership (TPP), and the draft Transatlantic Trade and Investment Partnership (TTIP) – stand poised to have a major impact on your data, your workflows, and your digital rights. While some proposed changes could protect the open web for the future, other provisions would set the internet back several decades. In this article we will review the issues you need to be aware of as a digital professional. While each of these agreements covers dozens of topics ranging from climate change to food safety, we will focus solely on the aspects which pertain to the work we do on the web. The Trans-Pacific Partnership The Trans-Pacific Partnership (TPP) is a free trade agreement between the US, Japan, Malaysia, Vietnam, Singapore, Brunei, Australia, New Zealand, Canada, Mexico, Chile and Peru – a bloc comprising 40% of the world’s economy. The agreement is expected to be signed by all parties, and thereby to come into effect, in 2016. This agreement is ostensibly about the bloc and its members working together for their common interests. However, the latest draft text of the TPP, which was formulated entirely in secret, has only been made publicly available on a Medium blog published by the U.S. Trade Representative which features a patriotic banner at the top proclaiming “TPP: Made in America.” The message sent about who holds the balance of power in this agreement, and whose interests it will benefit, is clear. By far the most controversial area of the TPP has centred around the provisions on intellectual property. These include copyright terms of up to 120 years, mandatory takedowns of allegedly infringing content in response to just one complaint regardless of that complaint’s validity, heavy and disproportionate penalties for alleged violations, and – most frightening of all – government seizures of equipment allegedly used for copyright violations. All of these provisions have been raised without regard for the fact that a trade agreement is not the appropriate venue to negotiate intellectual property law. Other draft TPP provisions would restrict the digital rights of people with disabilities by banning the workarounds they use every day. These include no exemptions for the adaptations of copywritten works for use in accessible technology (such as text-to-speech in ebook readers), a ban on circumventing DRM or digital locks in order to convert a file to an accessible format, and requiring the takedown of adapted works, such as a video with added subtitles, even if that adaptation would normally have fallen under the definition of fair use. The e-commerce provisions would prohibit data localisation, the practice of requiring data to be physically stored on servers within a country’s borders. Data localisation is growing in popularity following the Snowden revelations, and some of your own personal data may have been recently “localised” in response to the Safe Harbor verdict. Prohibiting data localisation through the TPP would address the symptom but not the cause. The Electronic Frontier Foundation has published an excellent summary of the digital rights issues raised by the agreement along with suggested actions American readers can take to speak out. Transatlantic Trade and Investment Partnership TTIP stands for the Transatlantic Trade and Investment Partnership, a draft free trade agreement between the United States and the EU. The plan has been hugely controversial and divisive, and the internet and digital provisions of the draft form just a small part of that contention. The most striking digital provision of TTIP is an attempt to circumvent and override European data protection law. As EDRI, a European digital rights organisation, noted: “the US proposal would authorise the transfer of EU citizens’ personal data to any country, trumping the EU data protection framework, which ensures that this data can only be transferred in clearly defined circumstances. For years, the US has been trying to bypass the default requirement for storage of personal data in the EU. It is therefore not surprising to see such a proposal being {introduced} in the context of the trade negotiations.” This draft provision was written before the Safe Harbor data protection agreement between the EU and US was invalidated by the Court of Justice of the European Union. In other words, there is no longer any protective agreement in place, and our data is as vulnerable as this political situation. However, data protection is a matter of its own law, the acting Data Protection Directive and the draft EU Data Protection Reform. A trade agreement, be it the TTIP or the TPP, is not the appropriate place to revamp a law on data protection. Other digital law issues raised by TTIP include the possibility of renegotiating standards on encryption (which in practice means lowering them) and renegotiating intellectual property rights such as copyright. The spectre of net neutrality has even put in an appearance, with an attempt to introduce rules on access to the internet itself being introduced as provisions. TTIP is still under discussion, and this month the EU trade representative said that “we agreed to further intensify our work during 2016 to help negotiations move forward rapidly.” This has been cleverly worded: this means the agreement has little chance of being passed or coming into effect in 2016, which buys civil society more precious time to speak out. The EU Data Protection Regulation On 15 December 2015 the European Commission announced their agreement on the text of the draft General Data Protection Regulation. This law will replace its predecessor, the EU Data Protection Regulation of 1995, which has done a remarkable job of protecting data privacy across the continent throughout two decades of constant internet evolution. The goal of the reform process has been to return power over data, and its uses, to citizens. Users will have more control over what data is captured about them, how it is used, how it is retained, and how it can be deleted. Businesses and digital professionals, in turn, will have to restructure their relationships with client and customer data. Compliance obligations will increase, and difficult choices will have to be made. However, this time should be seen as an opportunity to rethink our relationship with data. After Snowden, Schrems, and Safe Harbor, it is clear that we cannot go back to the way things were before. In an era of where every one of our heartbeats is recorded on a wearable device and uploaded to a surveilled data centre in another country, the need for reform has never been more acute. While texts of the draft GDPR are available, there is not enough mulled wine in the world that will help you get through them. Instead, the law firm Fieldfisher Waterhouse has produced this helpful infographic which will give you a good idea of the changes we can expect to see (view full size): The most surprising outcome announced on 15 December was the new regulation’s teeth. Under the new law, companies that fail to heed the updated data protection rules will face fines of up to 4% of their global turnover. Additionally, the law expands the liability for data protection to both the controller (the company hosting the data) and the data processor (the company using the data). The new law will also introduce a one-stop shop for resolving concerns over data misuse. Companies will no longer be able to headquarter their European operations in countries which are perceived to have relatively light-touch data protection enforcement (that means you, Ireland) as a means of automatically rejecting any complaints filed by citizens outside that country. For digital professionals, the most immediate concern is analytics. In fact, I am going to make a prediction: in 2016 we will begin to see the same misguided war on analytics that we saw on cookies. By increasing the legal liabilities for both data processors and controllers – in other words, the company providing the analytics as well as the site administrator studying them – the new regulation risks creating disproportionate burdens as well as the same “guilt by association” risks we saw in 2012. There have already been statements made by some within the privacy community that analytics are tracking, and tracking is surveillance, therefore analytics are evil. Yet “just don’t use analytics,” as was suggested by one advocate, is simply not an option. European regulators should consult with the web community to gain a clear understanding of why analytics are vital to everyday site administrators, and must find a happy medium that protects users’ data without criminalising every website by default. No one wants a repeat of the crisis of consent, as well as the scaremongering, caused by the cookie law. Assuming the text is adopted in 2016, the new EU Data Protection Regulation would not come into effect until 2018. We have a considerable challenge ahead, but we also have plenty of time to get it right. 2015 Heather Burns heatherburns 2015-12-21T00:00:00+00:00 business