Trans-Pacific Trade and Cyber Security

By | November 24, 2015

There’s been concern expressed in some quarters about whether the TPP Agreement will limit the ability of governments to take public safety measures, in particular, to require disclosure of encryption information for national security reasons.

The discussion has been focused on provisions on Chapter 8 of the TPPA covering Technical Barriers to Trade. Some are interpreting Annex 8-B, Section A.3 of Chapter 8 as preventing law enforcement or intelligence authorities from compelling companies like Apple or Google from turning over encryption keys to decipher communications used on their devices.

Section A.3 of the Annex says, in a nutshell, that no TPP Party may impose a technical regulation or conformity assessment that requires a manufacturer or supplier of a product to

“. . . transfer or provide access to a particular technology, production process, or other information (such as a private key or other secret parameter, algorithm specification or other design detail), that is proprietary to the manufacturer or supplier and related to the cryptography in the product, to the Party or a person in the Party’s territory.”

According to a recent issue of World Trade On-Line,

“. . . the issue is that these companies are increasingly using so-called ‘end-to-end’ encryption — in which they themselves do not possess the key — and lawmakers and law enforcement authorities are weighing whether to craft new measures to prohibit this technology to foster better intelligence-gathering. Some experts said it is an open question whether TPP would prevent such measures, while others rejected the notion that this was the case.”

It is hard to see how the TPP under Chapter 8 or other provisions of the Agreement can apply prevent any of the TPP countries from taking steps, including requiring disclosure of encryption keys or from controlling or preventing end-to-end encryption where national security interests are involved.

TPP negotiators, especially the United States, were careful to ensure that the treaty did nothing to jeopardize national security enforcement measures. Article 29.2 (Security Exceptions) of the Agreement states that,

Nothing in this Agreement shall be construed to:

(b)     preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

It doesn’t take lengthy legal analysis to see that the effect of this provision – with the underlined words – gives full scope to governments to make their own national security decisions. As the chapeau of Article 29.2 says, nothing in the Agreement precludes Parties from enacting and applying these national security measures. And to be certain, nothing in Chapter 8 of the TPPA in any way qualifies the scope of these National Security Exceptions in that Article.