To fully realize the benefits of digital globalization, two main challenges need to be effectively dealt with: barriers to the free flow of data and underdeveloped rules on digital services at both the World Trade Organization (WTO) level and in terms of U.S. free trade agreements. Much of the international trade in services is directly predicated upon enormous cross-border data flows. This, however, has become a major friction point between the United States, the EU, and China, with China especially insisting that its citizens’ privacy can only be properly protected if those citizens’ data are kept in-country and stored according to very specific requirements. These mandates hinder U.S. service exporters’ access to new markets. Likewise, several countries also have policies that place onerous requirements on cloud computing providers. Vietnam, Korea, France, Indonesia, Malaysia, and China all have protectionist restrictions on cloud computing services. Though this is an important policy challenge, there is some room for optimism. The Safe Harbour Principles, Privacy Shield program, and now the Trans-Atlantic Data Privacy Framework have helped to smooth over U.S.-EU differences with regards to privacy and data transfers. There may also be technological advances that help. Microsoft’s Azure cloud computing service is fully capable of localizing data while still providing the service, so it may end up being the case that data localization is not as large a hindrance to commerce as it may seem. What is more worrisome are barriers to data flow imposed to block the spread of ideas and expression to uphold authoritarian governments. China’s Great Firewall is the most high-profile example of this. The Great Firewall is not only a tool of censorship, but it is also a huge barrier to U.S. service exporters.
We also need more progress on digital services at the WTO level. Since 1998, WTO members have agreed to not impose tariffs on electronic transmissions, and they extend that moratorium every few years. Given the growth of digital trade, making that moratorium permanent would provide greater regulatory certainty. The international trade in services is, for the most part, much newer than the trade in goods. Therefore, the range and depth of international trade rules that deal with services is also less fully developed, especially as they apply to digital services. For the moment, a big comprehensive agreement on services seems politically infeasible, but WTO members could start taking smaller steps toward curtailing digital protectionism. One area they could take an immediate step on is discriminatory treatment of electronic signatures. That may sound like a tiny thing, but it helps to illustrate the necessity and usefulness of new digital trade rules.
Let’s imagine that a government wanted to discriminate against services being provided from abroad via digital means but that it had no legitimate basis on which it could claim that the service provider was causing some kind of social or policy problem. If a government wanted to discriminate against the foreign provider, it could require physical in-person signatures rather than electronic signatures, and that would re-impose all of those proximity burdens even though doing so would achieve no clear public policy objective. It would be protectionism, plain and simple, to the detriment of the provider and often to the detriment of the consumer.
Another area where well-balanced international trade rules could be helpful is in source code access. Businesses want assurances that they will not have to divulge their source code (which is often the very heart of their software and a major part of their trade secrets) as a condition of providing their services in that country. The service provider often has a very credible fear that, once divulged, that source code will be passed onto a domestic competitor. In effect, the national government of that country has conditioned access to that market on expropriating some of that business’s most valuable assets. Knowing this, the business cannot enter that market, so its ability to participate in that digital trade in services has been snuffed out from the beginning. On the other hand, there are several completely legitimate reasons why a government might want to review a business’s source code. If it has reason to believe that the way a service provider is doing business violates the country’s laws—and that could be anything from data protection to anti-discrimination law—to investigate whether that is actually happening, it needs access to the source code. If the states involved were not allowed to do that, they might not want to allow a foreign firm to provide that service in the first place. So, allowing this kind of access for governments both protects their right to engage in legitimate regulation and promotes digital trade in services. Here the language in the USMCA could be a model. The USMCA bars states from forcing firms to divulge their source code simply as a condition of entry to the market but allows governments to require access to the code as part “a specific investigation, inspection, examination, enforcement action, or judicial proceeding, subject to safeguards against unauthorized disclosure.”
International cooperation on clearly discriminatory digital service taxes, whether under the WTO or the Organisation for Economic Co-operation and Development, would be another useful step. However, some countries have instituted digital service taxes in ways that are clearly and obviously designed to target American businesses but not their own businesses. French politicians were open about the fact that their country’s digital service taxes were aimed at American companies and even branded the tax the “GAFA tax” for targeting Google, Amazon, Facebook, and Apple. Digital service taxes, when applied to all digital service providers, are one thing; digital service taxes that are blatantly discriminatory are quite another.
Free trade agreements that the United States is part of already have some of these provisions. For example, the USMCA already prohibits data localization and the discriminatory treatment of electronic signatures. The United States should go even further. One way the United States and its most important trading partners could promote the international trade in services while respecting states’ ability to engage in legitimate regulation is through mutual recognition agreements (MRAs). MRAs pioneered the trade in goods in the European Union. In an MRA, instead of states changing their domestic regulations, they agree to mutually recognize each other’s regulations as equivalent. Perhaps appropriately the Comprehensive Economic and Trade Agreement between the European Union and Canada includes a proposed dialogue on creating MRAs in digital services. With this kind of MRA, if it were to come to fruition, a service provider in the agreed upon field who was licensed to operate in the EU would also be allowed to provide that service in Canada and vice versa. A particularly ambitious option would be to use MRAs with a negative list. In other words, the parties would say that any professional license issued in one state is valid in the other except for in those areas specifically carved out by each party. This would echo the negative-list approach used by the General Agreement on Trade in Services, the main agreement that structures the trade in services under the WTO. Just as an MRA undergirds trade within the EU, an MRA in services could facilitate greater trade in services among the USMCA countries in at least some industries.