New rules being proposed by the US, the European Union (EU) and other industrialized countries for overseeing global electronic commerce could increase lawlessness and enable tech-giants such as Google, Facebook, Amazon, Microsoft and Alibaba among others to monetize data on a grand scale, analysts said.

The US along with former members of the Trans-Pacific Partnership (TPP) agreement as well as the EU has proposed plurilateral rules at the World Trade Organization (WTO) that would further weaken the role of governments in overseeing global electronic commerce.

The US for example, does not want any discriminatory restrictions on the treatment of digital products, cross-border transfer of information by electronic means, and location of computing facilities, including cloud computing among others.

In its proposal circulated on 26 April, the US has suggested that “no party shall accord less favourable treatment to a digital product created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of another party, or to a digital product of which the author, performer, producer, developer, or owner is a person of another party, than it accords to other like digital products."

Washington also made it clear to participants of more than 80 countries of the Joint Statement Initiative (JSI) group that is currently negotiating the plurilateral agreement that “no party shall prohibit or restrict the cross-border transfer of information, including personal information, by electronic means, if this activity is for the conduct of the business of a covered person".

The US’s position is also being shared by Japan and several other former members of the Trans-Pacific Partnership (TPP) Agreement. The EU has also suggested similar provisions, though, it demanded stronger privacy provisions in line with its Global Data Privacy Regulations.

However, the US, EU, and Japan among others want to prohibit the mandatory transfer of source code by suppliers of software in other countries.

The EU, in its proposal for WTO disciplines and commitments relating to e-commerce on 26 April, has also stated that “members shall not require the transfer of, or access to, the source code of software owned by a natural or juridical person of other Members."

Several studies by data scientists in the US and other countries have showed that software with complex source code could contain certain hidden algorithms that facilitate dark data flows without the consent of the countries and help tech-companies in monetizing that dark data.

During the discussions of the JSI participants last month, Russia challenged the need for a prohibition on source code, saying that without credible security and other guarantees, it is incumbent on the suppliers of software to provide source code.. Moscow said it would need to understand “source code" before permitting a supplier to export or distribute that software, a JSI participant said on condition of anonymity.

China also quizzed the proponents on why a prohibition is being demanded for source code, suggesting that members would need to know the built-in algorithms.

India, which is not a member of the JSI group for negotiating new plurilateral e-commerce rules, has expressed its fears over the proposed plurilateral rules on the existing WTO GATT (General Agreement on Tariffs and Trade) and GATS (General Agreement on Trade in Services ) commitments.

India maintained on 3 May that “both the GATT & GATS could wither away due to the onslaught of the so called “high standard" e-commerce elements" due to the JSI negotiations.

In her book “The Age of Surveillance Capitalism," Shoshana Zuboff argued succinctly that tech companies such as Google, Facebook, Amazon, and Microsoft among others, while insisting their technology is too complex to be legislated, spend billions of dollars lobbying against any oversight.

Further, the tech companies “while building empires on publicly funded data and the details of our private lives, have repeatedly rejected established norms of societal responsibility and accountability," she argued. Zuboff maintained that the tech companies prefer lawlessness to continue without any hurdles for their “new form of exploitation and exceptionalism"- for monetizing data on an unprecedented scale.

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