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Former U.S. trade representative Robert Holleyman speaks with Salzburg Global on the question of incorporating digital tech into trade agreements

Robert Holleyman, a partner in Crowell & Moring’s International Trade and Privacy and Security Groups, was among the participants at the inaugural program of the Salzburg Global Law and Technology Forum. The program—Privacy, Security, and Ethics in an Asymmetric World—took place at Schloss Leopoldskron, in Salzburg, from April 7 to 9, 2019.

Holleyman, who is also the president and CEO of C&M International, sat down with Salzburg Global to answer questions relevant to the discussions which took place. Read his Q&A below, which has been edited for brevity and clarity.

Salzburg Global: How do you incorporate digital technology into trade agreements, and how do you take into account the differing approaches by countries?

Robert Holleyman: Well, I think you've seen one major thing happening in the world of trade agreements, which is they have moved beyond simply dealing with issues of tariffs for taxes on goods going between borders, and they've looked at other things that are potential barriers to trade in areas, like [the] use of digital technologies.

So, the most modern trade agreements now are including chapters related to either e-commerce or, more recently, they're being called digital trade chapters, but they're looking at things that aren't necessarily tariffs…. they're looking at how do you build confidence and trust in doing things over the internet. How do you deal with issues around privacy or on security around cross-border data transfers? The type of things that are designed to reduce the barriers so that new means of commerce, which is doing things electronically across borders that can grow and flourish as well.

So, that's essentially how trade agreements are looking at this now. I think the biggest question there is how far should trade agreements go? How do countries who have different approaches to data, how do they come to an agreement? In the context of trade agreements…. When those trade agreements get put in place, there's usually some mechanism for enforcement among the countries who are part of it, and what does that enforcement look like at the time around digital trade?

SG: How important are trade agreements in solidifying a code of ethics?

RH: …. I think what you're seeing in the trade agreements are…. a way that countries are choosing to bind themselves to a certain set of principles because they tend to be either two countries or three countries or more often a region in Asia-Pacific or elsewhere—they have a lot of precedents. Each new trade agreement, particularly in the area of digital trade, tends to add something new to ones it passed on before. I think the relevance is that what they're trying to do on digital trade is prevent a series of barriers from being erected in a lot of traditional trade-like agriculture.

There are literally hundreds of years of protectionist measures designed that trade negotiators usually try to go to break down…. I think there's a sense that something should be done early to keep the internet as open as free as possible with the minimum barriers while still recognizing the ability of every nation to be able to regulate and protect public safety [and] national security, which is inherent that something every government [has] to do.

SG: How might the Trans-Pacific Partnership (TPP), in particular, form the basis for future cross-border agreements on new technology?

RH: The TPP which is now called the [Comprehensive and Progressive Agreement for Trans-Pacific Partnership] CPTPP....  has the most advanced chapter around digital trade of any existing trade agreement today…. There are 11 countries who are part of that. Seven of them have already implemented it, and it has provisions around favoring cross-border data transfers while still allowing governments to protect their national security or privacy interests. But the default is that there should be flows of data across borders among those seven countries—among the 11—absent a compelling national reason why a government needs to restrict it. So that's important to put in place because it really begins favoring openness, saying it can be restricted as opposed to what the status quo is now. Absent an agreement, which is there's sort of no agreement, governments are putting things in that are barriers many times for legitimate purposes but sometimes are doing that just to try to be protectionists to domestic companies or to harm foreign competitors.

SG: Should the Salzburg Global Law and Technology Forum become a new multi-year series—from the discussions you've had so far—what kind of direction do you see that going in?

RH: Well, I think the diversity of voices that are coming into Salzburg Global Seminar are important for elevating these issues. What I hope they will do at this intersection of law and technology [is] recognize some of the biggest issues that have to be dealt with are around privacy security and ethics. I think the contribution of this effort to helping define the questions, helping governments collaborate—not that they will have any one solution but to understand what the set of issues are—and help us see what the end goal should be, which is more collaboration, more products, [and] more data transfers that will be extremely important, and this work hopefully can be very helpful in that foundation.

The Salzburg Global Seminar program, Privacy, Security, and Ethics in an Asymmetric World, was the inaugural program of the Salzburg Global Law and Technology Forum. More information on this multi-year series is available at the following link: https://bit.ly/2VPcn3z