Anupam Chander is a professor of law at Georgetown University. He has received a Google Research Award for related research.
In 1992, when NAFTA was signed, the World Wide Web had yet to become truly world-wide and the iPhone was still fifteen years away. Thus, it is not surprising that an update was needed to bring the free trade agreement between Canada, Mexico, and the United States into the twenty-first century.
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While much of the public attention has been focused on the new agreement’s implications for cars and milk, the revised NAFTA—or what’s formally being called the “United States Mexico Canada Agreement” (USMCA)—contains digital economy provisions that have significant implications for emerging tech.
Despite the Trump administration withdrawing from the Trans-Pacific Partnership (TPP), USMCA negotiators used the TPP’s electronic commerce chapter as the basis for negotiations (or—the TPP is dead, long live the TPP). The USMCA’s digital trade chapter continues the TPP’s ban on customs duties on digital products (though regular taxes remain unaffected). It also requires anti-spam laws in each country. Like the TPP, it bars countries from requiring the disclosure of source code, but it goes further to bar governments from requiring the disclosure of “algorithms expressed in that source code” unless that disclosure was required by a regulatory body for a “specific investigation, inspection, examination enforcement action or proceeding.”