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US Trade Rep criticises tech trade barriers in Oz, NZ

Wary of telecoms, cloud, patent and copyright rules

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Australia and New Zealand have come under criticism from the Office of the United States Trade Representative (USTR) over a raft of tech issues.

In its latest 420-page National Trade Estimate Report on Foreign Trade Barriers, the USTR expresses concerns at Australia’s National Broadband Network, and government concerns at offshore storage of personal data; while New Zealand is in the crosshairs for legislation currently before parliament that would ban software patents.

While the USTR recognizes that the NBN in Australia will create “improve the non-discriminatory access to network services”, it remains critical of foreign investment limits on the incumbent carrier, Telstra.

Of greater concern, however, is that Australian government agencies are taking a wary approach to cloud computing. The USTR singles out the Department of Defence, the National Archives, the Australian Government Information Management Office, and Victoria’s state Privacy Commissioner, all of which have at various times sent “negative messages” about cloud computing services.

The offshore hosting debate in Australia centers on two concerns: that cloud providers in other jurisdictions may accept lesser privacy and security controls than would be required in Australia; and that the data may become subject to laws in other jurisdictions. The USTR says the notion that data may be “scrutinized by foreign governments” appears “based on misinterpretation of … the Patriot Act and regulatory requirements”.

In particular, the USTR dislikes Australia’s proposed implementation of e-health, saying that legislation requiring onshore storage of citizens’ personally-controlled electronic health records (PCEHRs) “would pose a significant trade barrier for US information technology companies with data centers located in the United States or anywhere else outside of Australia”.

The legislation’s explanatory memorandum, it should be noted, doesn’t single out America, nor does it raise government snooping as the main concern. Rather, it notes that if PCEHRs are stored outside Australia, “very few effective enforcement options would be available if that information were to be misused or mishandled”.

Criticism of New Zealand is based on that country’s proposed laws to forbid software patents, and on the idea that rights-holders should have to help pay for the cost of pursuing alleged infringers through ISPs.

Regarding the proposed patent law, which seems stalled in parliament (as noted by Stuff.co.nz, it has been awaiting its second reading in parliament for more than a year), the USTR says the clause excluding software “departs from patent eligibility standards in other developed economies”.

The Kiwis also suffer the withering slap of the USTR’s censure for requiring rights-holders to contribute $NZ25 to issue an infringement notice under that country’s Internet file-sharing laws, a cost which it says “has deterred some rights holders from using the system”. ®

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