Aligning Multistakeholder Norms and the Digital Trade Agenda

6 December 2016 - A Workshop on Other in Guadalajara, Mexico

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Full Session Transcript

The following are the outputs of the real-time captioning taken during the Eleventh Annual Meeting of the Internet Governance Forum (IGF) in Jalisco, Mexico, from 5 to 9 December 2016. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 

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>> Welcome to this workshop on aligning multistakeholder norms and the digital trade agenda.  I'm glad you've been able to make it here to this very small and inaccessible room, but we do also have some remote participants, which is wonderful.  And also, we'll be summarizing this session for the main session on trade at the IGF, which we're very excited about being on Thursday.  So, I'm going to give a brief introduction while we wait for some other people to arrive, then I'm going to introduce our panelists and we're going to have pretty much a round table discussion after some very short opening remarks by the panelists, and we hope to make this a really interactive session so we're looking forward to your input.

My remarks are going to be framing the topics and I'm going to be explaining why we see some problems in the way that internet issues are dealt with in trade agreements.  And then suggest how we might want to address that.  How could we reduce this strange discord between the way that we think of dealing with Internet Governance and the way that trade deals with those same issues.

So, I don't think we can deny that internet‑related issues are going to be part of the global trading system here and in the future.  It's a fact that global trade in goods and services does create wealth and opportunity and the free open internet is a form of global trade and information services.  Therefore, we might assume that trade agreements should be used to promote a free and open internet.  However, there's a problem with this, and I'll explain what that problem is.  At the global level first.  There's a problem in dealing with digital issues on a completely multiple rei lateral basis because multilateral negotiations have really broken down.  The WTO operates on the basis of the equality of states and a single undertaking that binds all of the states together and this has become increasingly difficult to achieve, and this affects digital issues just as it does all other issues.  Developing countries, in particular, are not really open to adopting new rules when concerns about agricultural and more basic issues haven't been addressed at the WTO.

So this has led to a position in which the developing countries which want to did deal with digital issues are pushing those issues outside of the WTO to be dealt with in plural lateral or many lateral agreements which are smaller agreements that other countries could be pushed into joining later.  So, this is not really the way that the multilateral trade negotiations were meant to operate.  As a result, rather than trade agreements being a fully joint n taking, it's become more of a game in which the party with the largest market can extract promises from the weaker parties.  We've also seen these being used for geo political positioning, particularly to contain China, which is seen as a threat to the United States.

It's notable that China is being kept out of agreements like TTP and TICA until these agreements have been set in stone, and they can be used as a tool to contain China's threat to the rest of the United States and its allies.  The other problem is that trade agreements have a lack of transparency and participation.  The negotiations in texts are withheld from the public.  The WTO is actually more transparent than the trade agreements that have come in its way.  But even then, the WTO transparency mechanism for regional trade agreements doesn't require that the text be made public.  It only requires that the agreements be notified to the other parties.

So, those are some of the problems at the global level.  At the domestic level, let's look at the United States as an example.  The United States has a set of trade advisory committees which advise the U.S. trade representative, and so, in addition to these formal committees, there is also a lot of informal lobbying that goes on.  If we look at the composition of these committees, there's 16 industry trade advisory committees and seven non industry advisory committees.  700 in all.  The majority of those come from industry.  ITEC8, there are no Civil Society or public interest representatives.  So, this results in a fairly partial position that does not reflect a broad cross‑section of stakeholder views.  The trade negotiations themselves are also not. 

We don't have a lot of expertise in the technological human rights issues they're discussing.  If we also look at the number of staff negotiating these issues who are devoted to intellectual property, there are a lot more of those than others related to other e‑commerce issues so it's totally unbalanced within the US, at least.

It's also difficult for the trade negotiators to make the case that they should be considering non‑trade issues like human rights issues because it's considered to be out of scope with them.  And there's also a problem with the revolving door between lobbyists and the members of the trade advisory committee.  And again, a lack of transparency at the domestic level just as there is at the international level.  The trade negotiations as a whole are lacking transparency but so, too, the consultations at the domestic level.  The trade advisers have to have a security clearance, keep the text secret.  We had asked the United States government to adopt new commitments to transparency as part of its commitments in the open government partnership national action plan.  That was a failed opportunity.  The USTR failed to increase its transparency in any meaningful way.

The Europeans are actually doing somewhat better to increase their transparency.  The European commission has adopted a policy of disclosing all of its text proposals to the public and disclosing the consolidated text of its trade agreements to all of the members of the European Parliament but the US government has not followed those steps.  There are two new measures before the U.S. Congress which would use to transforms but it's difficult to say, particularly in the new environment in the US, whether those stand any chance of success.

So, these are just some opening remarks to frame the problems we face.  The lack of transparency, the partiality of the whole process and at the global level, its fact that it's not inclusive.  So, how can we rethink the internet and trade?  There is a movement from across, not just Civil Society, but industry groups as well, saying that we need to reform trade negotiations.  This is a declaration that was produced very early this year at a meeting in Brussels where the participants who were broad cross-section from Civil Society and some industry representatives as well, they agreed that there was a problem, that modern trade agreements were unduly differential to a narrow class of stakeholders and contrasted this to Internet Governance norms where we expect transparency, we expect multistakeholder participation.

And we made the point that if we were more inclusive, that would result in agreements that would better align with the values of the communities effected, such as cultural expression and facilitation.  So, here are some of the things we came up with, the ability to access in freedom of information laws.  More balance on the advisory bodies.  Proactive measures to engage experts representing the internet, and also aligning trade negotiations with sustainable development goals.  With that ‑‑ oh, and before I leave off, here is a diagram that my organization, EFF has recently released which tries to summarize some of the ways in which we could have more inclusive and balanced trade negotiations.  It's actually broad trade negotiations but it does apply trade negotiations amongst other policy form.

I have copies of this.  Of course, it's too small to read on the screen but if you would like a copy of this document, I have one and can hand them to you at the end of the session.  So, following these sort of recommendations about inclusion, balance, and accountability.  Here are some of the ideas ‑‑ and this is my last slide ‑‑ some of the ideas we could use to improve trade negotiations.  To make them more inclusive, we could make sure that users are resourced to provide anticipatory ‑‑ resources like funding, translation, things like that.  Travel.  We should be able to pull in recommendations from non-trade advisories to the trade process.  So the IGF, if it comes up with recommendations, there should be a way to feed those into trade.  To make them more balanced, we should make sure that there isn't this perpetual revolving door.  And to make them more accountable, and releasing consolidated draft dates in between negotiating rounds.  These are not radical proposals.  In fact, those bills before the U.S. Congress would make some of these changes.

So these are some of the ideas we might think of to improve trade negotiations but you've heard enough from me.  I'm going to pass on to our panelists.  We have first Burcu.  Viviana won't be joining us, but we have, instead, Eileen, also a colleague of Viviana.  I apologize that I wasn't able to update this slide but in the recorded session we will appropriately identify her.  I'm going to introduce the other participants as they come, but Burcu, would you like to take over?

>> BURCU KILIC: Yeah.  Thank you, Jeremy.  So, while I was preparing for this panel, and I was thinking, because like with the recent developments in the U.S., like, even the discussion has changed for us, now.  Like because, I want to talk about the TPP, pre-Trump, and then the post‑Trump.  Because the trade policy will change in the U.S., but before that, just a very short overview of those three important trade agreements which are almost at, like the TP Ps, that they say is like suffering.  And then we don't know what's going to happen to TTIP, and then we have our set, the Asian cousin of this which includes also almost the same rules.

So the common feature of all these agreements is the intensive secrecy.  There are slide differences between the secrecy of the negotiations, but they all take place behind closed doors.  And as Jeremy said, and this trade tri, in this trade trio, it's usually the trading rights of users and Xanax against the agricultural and manufactured goods, and the resulting rules are not those that further the global public interest but interest with the partner with the largest market, or more specifically to those of its trade Ministry.  So, this is the trade trio in pre‑trump era.  And then in post‑trump era, because when Trump won the elections, the first thing he said was they won the arrival of the TP.  So it became clear that this model is not sustainable.  This is a 20th century trade model.  So what will be the 21st century trade model?  And we were discussing this, like we had this Brussels Declaration, because we were planning to have a different model, which is multistakeholder.  Which will make rules for the 21st century, but now things have a changed so we will have bilaterals and bilaterals are not necessarily good for developing countries.  So all these things have thing has in common, like TPP.

But the TTP rules are not going anywhere.  TTP is showing up in TISA, even in RCEP.  U.S. is not part RCEP, but there is a common understanding between the parties on e‑commerce chapter, the same rules in the TPP, they appear in RCEP.  So, we have to talk about the rules.  Yeah.  The process is wrong.  It's not transparent, and we really need to change the way it's negotiated, agreements are negotiated, because it's not sustainable, but we also need to talk about the substance of these agreements and rules.  Like, I don't know how many of you remember ACTA.  The European parliament killed ACTA and we were so proud of it because people fought really hard for ACTA.  But ACTA led to the TTP. 

ACTA provisions were exactly the same as the TTP enforcement provisions and people didn't really care because they were focusing so much on, yes, we killed ACTA.  But there is the TPP and it will be the same thing with the TPP.  Next bilateral agreements will have the same rules as the typical because there were times U.S. was all alone in that room and U.S. was pushing back.  So there were times we didn't like that agreement, and the future, unfortunately, is not bright for us.  So we had to take action.  We had to sit down and come up with a strategy.  And this is not about the Civil Society.  I represent Civil Society.  I represent consumer rights organization, but this goes beyond that.

So, and I think this is a very good, very interesting discussion and hopefully we can come up with some kind of strategy or plan to deal with the future challenges, because I have to say, we are heading into some very, very rough years.  And people need to be reminded that, like, we have the power.  Like, we killed the TPP and we can deal with the other agreements.  Now is the time.  Unfortunately, like the president elect, regional is not one of human rights or user rights or public interest, but it's more about the business interest, commercial interest and not necessarily everyone's interest.

>> JEREMY MALCOLM: Thank you very much.  Our next panelist is Marcela Veliz.

>> MARCELA VELIZ: Hello, everyone.  This is okay?  This is the first time I'm participating in IGF so thank you very much for the invitation and this very important conversation that we're having here.  I had some brief comments, preliminary comments prepared, but listening to what has been said, I think it's important to address a couple of issues.  In general terms, sometimes from the government when we hear the different speeches or the different things that are being said regarding internet, and when I did a small research, you can see that internet can be defined in different ways or is going to mean different things for different actors. 

And even just if you look in Wikipedia what internet is and I was analyzing and reading this book by Luciano, a philosopher, and it talks about the fourth revolution and gives an interesting meaning for what technology means and how we define ourselves through internet and then we go to the World Economic Forum and see they speak about the fourth industry revolution and give a completely different approach.

The thing is that all of these views are valued the same way, and probably what needs to happen is now we can make them dialogue and make them sit down and have a more deep conversation, and probably, this is beginning or this is one step in this direction.  And exactly because these kind of statements, like the process is wrong or there is a lack of transparency and when I see what my government has been doing in the last few years, I wouldn't say that represents what we're doing or the way we see the negotiations we're involved in.

But I have to say, though, it is important to have Civil Society participation because as I will show you, an important part of the different commitments that our government has started to commit to in terms of transparency and participation started with interest on the issue.  In general terms, when a government involves itself in bilateral negotiations, normally they will be done in a context of privacy with the counterparts.  We are talking about other issues, gender, whatever issue a government sits down to have a conversation with another government is going to be that way.  Now, obviously, internet has been, as it is, a new dimension of existence of humanity and it was borne in a very particular way with a multistakeholder in its roots. 

I think this has been an interesting challenge, how these two, the normal way governments do bilateral agreements, how the internet relates to itself.  I want to separate bilateral with plurilateral and mainly multilateral because in multilateral, there is machine more access to everything that is done.  I have to talk about WIPO where I'm currently working day‑to‑day.  WIPO meetings are instantly streamed to everyone and even the committee on copy right and related rights even has a transcript for visually impaired people so even people that can't see or hear, they can read.  There is really instant access, and even meetings that are held in more informal context, in the end, all the decisions are taken in plenary more instant access to every.

But coming back a little bit, the director of trade issues or international trade issues within foreign affairs that is the one that's in charge of trade negotiations.  In p general terms, three things.  First, democracy is a basis, and I think this is addressed in the Brussels declaration that it was cited before I spoke, they make reference to the international and political rights and therefore countries ratifying this agreement, it's important.  Also, it's important to implement them.  But I was checking in the UN web page and there is a very nice map where you can see all the colors, I like these images, in colors, the different numbers of treaties that have been ratified in the human right context.  And I think this is basic, having a Democratic system, it's a basis that everything else would flourish from there.  The second thinking is transparency and participation.  In terms of transparency in 2008, our country enacted a new law for access to information.

It was consulate for transparency and created.  In the context of the account, the trade office, we have done improvements in these regulations.  In 2015, we received 150 requests.  All of them were attended.  And it's interesting that in the accountability public report, there it's stated that because of the interest in TPP text, in November 2016, both the Spanish and English versions were published online.  And what I would highlight is the fact that the public report about what's been done in 2015 highlighted that precisely because of the interest, because of the requests that we have received through the transparency process that at that time during the negotiation couldn't be uncertain in terms of exposing the text, but once the negotiations were ended, immediately, these were published in Spanish and English because it was requested.

So, while I think that the role of Civil Society is key to changing the procedures.  This is an ongoing process.  I have, also, other things to share with you about public consultations, access to information, side rooms that we have enacted.  Civil Society council, public hearings.  I think that ‑‑ I have to say I feel very proud of what Chile has done.  I know what my country has done.  I definitely believe that Civil Society has played a key role in all these things to be included.  More and more, perceived as part of what we need to document that's what I can say at this point, and looking forward to the debate.  Thanks.

>> JEREMY MALCOLM: Thank you very much.  Now we're going to try and get our remote participant online.  Can we bring up Eileen Quar?

>> There she is.

>> JEREMY MALCOLM: Welcome, Eileen.  So, thank you.  This is Eileen.

>> Thank you, Jeremy.  I wanted to follow on, and what Brussels was saying regarding ‑‑ Marcela was saying regarding the TPP and how the provisions of the TPP will continue to move on.  In July, the United States followed by the European union, Japan and several other countries submitting suggestions.  Now, I want to maybe highlight some of these.  So, aside from the issue of the problem with transparency, it's definitely an issue at the WTO.  (inaudible)

Solving proposed rules that were suggested by the United States.  Having impact on electronic commerce.  Discrimination.  The free flow of data.  (Audio muffled)

Now, we have, many of the countries, they put forward proposals based on the interest of the population.  And the population that we have right now is that the internet has been set up primarily as an information ‑‑

(no audio)

As files people can then download.  Now, this is worrying because today we have a trade route that is not completely free.  It has been very carefully negotiated by all governments and developing countries alike, and the reason for this is that all countries are, you know, the issue of employment is important and the issue of employment and the need for domestic producers to be able to ‑‑ I hear the echo in my own voice so it's a little bit difficult to speak.  Can you hear me?  Yes?  Okay. So the issue now is that we have a trade route.  Hello?  Hello?  Hello?  Can you hear me?  Yeah.  Okay.

So, the issue now is that we have a trade route whereby we have protections, and the reason for these protections is because we want to ensure that in developed and developing countries alike, our producers get to produce and to sell.  So it's been 50 years of negotiations plus another, I don't know, 20 more years of WTO, whereby we have had these negotiations to carefully have a trade route that is going to provide employment and enable, also, domestic production.  Now, today, when the most technologically advanced countries are saying, let's use the internet or and more and more as the trade routes and have no protection, this is going to raise many, many issues of production in many countries that will lose out and are not able to be digitally savvy.  So, these are the concerns that we have.  How do we align the needs, the different needs regarding trade with the issues regarding openness for information, which is what we know the internet to be?

And this is what I would like us all, in the multistakeholder process, to seriously contemplate because there is a very serious push, now.  A very, very intense push at the WTO to very soon take on these new rules.  Thank you.

>> JEREMY MALCOLM: Thank you very much, Eileen and thanks for making the effort to join us all the way from Geneva.  We appreciate it.  Now, I wonder if the microphone will reach our next speaker.  I think it will.  So David Snead is representing the Infrastructure Cogentin which is a Coalition technology, he's also an internet provider.  We've heard from someone in the government commission and Mr. Snead is a member of one of the trade advisee committees so he's going to be able to give us an interesting perspective as well.  So thank you, David.

>> DAVID SNEAD: I appreciate that.  I'm going to disagree, first, with what Burcu referred to me kind of confidentially as the evil person on the panel.  I'm only evil during Halloween, is the only time I'm evil.  And when I'm negotiate s contracts, then I'm evil as well.  So listen.  What is the top line for the internet Infrastructure Coalition?  What's the top line for us in general, and why are we involved in this process?

We're involved in the trade process because we believe that all participants should be given effective, comprehensive, and reasonable input into the trade negotiation process.  And that's really our bottom line, and that's why we're here.  That's why we participated in the Brussels Declaration.  We really look at the trade agreement negotiation and discussion process as broken, and we see the multistakeholder process and providing, possibly, a third way or third path for companies.  All right.  So, I'm echoing here.  So, why is ‑‑ your things broken?  The first thing is secrecy.  As Jeremy pointed out, I'm on ITAC 8, and he mentioned that there are no Civil Society groups on ITAC 8, and it's not because Civil Society groups are excluded from participating in ITAC 8.  It's because the ITAC process or the ITACs generally are not set up so that they can accommodate Civil Society or, honestly, other trade associations into the way that they work.  The reason for that is Civil Society groups and most trade associations have to go back to their members and talk about and form consensus about what's being discussed.  When you're on an ITAC, everything that is discussed is secret and confidential.  I have a security clearance that I'm duty‑bound to uphold.

We're a little bit different because I'm able to discuss what the I2 coalition does directly and make decisions but public citizen, other trade associations are not able to do that so it's really broken.  I don't know that reforming the ITAC process is going to lead to better input from Civil Society.  I think what's going to lead to better input in the trade agreements process is backing away from this notion that everything that's discussed in a trade agreement negotiation needs to remain secret.  And there are guides that we can see, ICANN, with all ICANN's warts has proven an effective way of resolving disputes in an open and relative hi transparent format.  We also see Congress, the way Congress negotiates bills.  Bills actually are negotiated in public.  These are very confidential.  People are given the opportunity to provide input.  Those are all ways that we can look at this.

I'm also going to disagree a little bit to, with the notion that businesses and Civil Society are directly opposed or have to be opposed in our viewpoints about internet and Internet Governance.  If you look at our members, and you look at the companies who work on the internet, we are very affected by privacy and privacy issues.  We're affected by data localization.  I think that it is wrong to draw a black line and say that all data localization, all attempts to deal with data localization are bad.  Our position is that data localization, as a whole, is a bad thing with certain exceptions, and I think that we need to think a little bit more like that.  So if you look at those kinds of issues and you look at the issues that our customers are dealing with, we're not actually directly opposed to what Civil Society or what other associations want or what industry wants.  It's actually a little bit richer of an issue than that.  So that's kind of how I wanted to frame my remarks but I do really agree with the premise of this path, as it's come up, that the trade agreement negotiation process is fundamentally broken.

>> JEREMY MALCOLM: Thank you very much, David.  That was really useful.  And thank you for taking issue with some things because that's the whole purpose of this workshop, to bring out the issues where there may be some differences.  So thanks again for that.  And our final panelist is Judith Hellerstein from Hellerstein and Associates.  She's also got a private perspective but maybe also a slightly different one, so thank you very much.

>> JUDITH HELLERSTEIN: Yes, Jeremy.  Thanks so much for having me on the panel and I definitely agree with you on how the U.S. government is working on with multistakeholder engagement for the trade issues.  But the U.S. government takes a very different approach depending on the agency that is doing the engagement.  So, while as with trade with USTR, since they handle it all, they are not really working closely, as David said, with industry.  And that version of ITAC does not work well with industry.  On the other hand, you contrast that with the approaches that the department of commerce is taking with self‑regulation where they have the industry in council and they come up, the industry itself comes up with different regulation rules. 

And then, with other agencies are consulting with Civil Society, they're taking the viewpoints, and they're accepting them or not accepting them.  But the U.S. state department when it works on having discussions with other governments has a totally different perspective and they have an ITAC process as well, but they run it slightly differently.  So they have their three official meetings with ITAC and they appoint different stakeholders, what they try to do on ITAC is appoint different stakeholders to the ITAC process.  I'm on one of the ITAC processes but there's also different committees, works on different policy issues and one that works on economic policies.

And you have to apply yearly and they have official meetings.  But besides that purpose, they, in addition to those, they have smaller ITAC processes which are then run for all the different, like, for instance, if they're running, creating policy positions for an ITU meeting or UNESCO meeting or APAC or any other different forum where they're talking about and negotiating for the governments, they have smaller processes.  And in these processes, the stakeholders are invaluable and it depends on how much time you want to spend on an issue, to if you want to look at data localization and that coming up on an APAC, in the smaller meetings, they'll ask you to, do you want to lead the panel?  Do you want to create a white paper?  Do you want to do this?  Do you want to do that?  And there, Civil Society and other stakeholders can really take an active role in that.

And these, what he was saying with the ITAC, that relates mostly to when it is delegation mode.  The majority of the work that the state department does in these preparatory meetings to prepare the state and agency for the positions are what's called preparatory meetings.  They are open to anyone shall as long as you're not a lobbyist.  But they're pretty well open to anyone.

And any of the views there can be shared and feedback given to other Civil Society groups.  So if you want to create a draft, you can share the draft with your whole group so that if I do coalition or public citizen as a particular internet issue they're looking at, they can be active on it.  They can help write policy.  Help shape the strategy for the state department.  They can report back to their own communities.  It's only when you go to delegation mode and the state department has taken very great pains to go as late as possible into this delegation mode because they're very interested in seeking as broad as possible engagement from different stakeholders, so they often try to delay the start as much as possible until it's absolutely necessary because once you're in a delegation mode, as David said, you can't share anything without others.  But even the delegations are open to everyone so if you want to attend as part of your delegation, there's a couple of simple rules.  You apply.  You submit an application.  You explain why you think your company or r your position will be valuable to helping shape the US government, and that's really all you need.

And then you get appointed.  You also want to say that you will actively participate since they don't want people to just say they're on a delegation and not participate.  So within those rules, you just participate.  If you don't have the funds to attend the specific conference at the location, there's remote participation so that you can actively participate.  And within the delegation mode, there's a chance ‑‑ they often write white papers or other issued documents that are just for influencing others.  So, you have a chance to sort of lead one.  So I've led a couple of ones on broadband issues.  So you can be the contact person for this paper.  While you're in delegation mode at conference, you're not going to be the one that's speaking.  It's going to be whoever's government official has been appointed but you can feed into them issues or if you think they missed a point, you can send them notes.  Even within delegation modes, there's ways to get your opinion of either Civil Society, of your public sector, of your private sector, of your academics to get things known.

So, they take a very different perspective than trade issues, which are very closed.  But in line of those issues, they've been working also by, I think it was a Civil Society group who actually was pushing for transparency openings and all IT documents at the major conference at the planning potential.  They pushed to get the ITU to open all documents to everyone.  So that note that people, there was no need ‑‑ all the documents were sealed under a special user account.  But now because of these rules, whenever there's an ITU meeting, all the documents are open until they're negotiating on final text, but all the documents are open because of this policy.  And there's work to be done on trying to create the ITU and other groups to be more open and more representative.  And so, I think there's a lot of work that's been done already, and a lot of work to be done, and anyone is invited if you're in the U.S. or, I know other ‑‑ Canada and Europe and other delegates have similar ones.  And the effort for the ones that don't is to push them to see, what is the value of a multistakeholder coalition and push the other countries to have an open delegation.

>> JEREMY MALCOLM: Thank you very much.  That's really an interesting comparison between the way the ITU has managed ‑‑ the ITU was regarded as very closed and yet, it's made some progressive moves towards opening up.  We've also heard how WIPO, which has been criticized in the past but is now regarded as exceptionally open amongst intergovernmental organizations in terms of access to negotiations.  We've also heard that the World Trade Organization, which was so badly regarded in its time that there were riots, of course, back in Seattle, and yet now is almost the best amongst, or is the best amongst the trade negotiations.  So, how can we learn from these other institutions to maybe begin to reform some of the plurilateral negotiations that we're seeing on the margins of the WTO and the bilaterals.

So, if you came in late, I know a few people walked in late.  Possibly because the wrong time was printed in the agenda.  Never mind.  You haven't missed hearing from our panelists because we're going to hear from all of them begin.  We're not going to go around in exactly the same format, but I'm going to invite any of the panelists who would like to respond to what someone else has said on the panel first, and then after that, we'll bring in the audience.  So is there anyone on the panel who would like to respond to anything that has been said?

>> MARCELA VELIZ: Thank you, and this is a very interesting conversation we're having.  I have four‑points I would like to highlight at this point.  Initially, it's that I personally believe that this absolute rhetoric about being bad or closed or evil, being from a government and receiving it, I would say that it's not the best way to approach the negotiators.  And I'm saying this openly.  For example, in the Brussels Declaration, I do believe that the recommendations are quite interesting. 

But I have to say that some of the preamble language, I would say, I'm not sure if that really reflects as we see negotiations in government.  Right?  So this is the first comment.  The thing is that the process is broken, everything is wrong.  Well, I have to say, in these examples that have been posted in this panel show that we need to define probably having a more moderate approach, even though I understand everyone has this role in this table, would be advisable when approaching the government officials if you really want to make a change in the procedures.  That would be the thing.

The second one is we heard two different things about WTO.  From one side, Jeremy was sharing with us, which is true, that there's been a reluctance to get into the e‑commerce or digital trade negotiations because a lot of developing countries want to first finalize agriculture and other issues you but we also heard from our colleague in Geneva.  We can see this two ways.  It could be a threat, but it's also an opportunity to discuss this in a rich multilateral context.

The challenge here would be if we can somehow show all the members from WTO that this is an important issue for everyone without saying that agriculture or the other issues are not important, but in the end, all our country is involved in digital trade, all the citizens are involved in digital trade.  Therefore, every country should have a say and maybe having these discussions in WT O is not a bad idea.  On the contrary, it's good to bring the discussion back.

Personally speaking, it's curious to me that it's the developing world that's keeping this discussion from coming back so maybe this is a change and also a challenge from Civil Society how we can show this as an opportunity of having a discussion in this context instead of a problem for advancing elements in the agenda that will still be there because it's part of what we're doing in WTO.  Even though this is not what I cover, but it's just my sense from looking from the outside.  Especially because one of the aspects of this mandate in e‑commerce had to do with trips with the related aspect and trade, IP related aspects in trade.  So I'm more or less linked to that.

other things is that in our case, in TPP and because of the importance that Civil Society was starting to attach to the negotiation, we started with a side room in 2014 that was a place of discussion and debate about what was negotiated that included Civil Society, business, and any interested organization.  We had 100 organizations.  We had 54 meetings, some of them online, video conferences from the place of negotiations.  I know that this is something that's come to stay at this point.  I know that in TISA they are also doing this.  I'm not part of this, but that's what people reported to me that are in charge of these issues, that I thank very much their help to prepare for this meeting.  And also in the new negotiations we held, we might also have this side room as part of our normal policy and trade negotiations.

And finally, this idea that everything needs to be discussed in FTAs.  Is that the case?  Like really, we need to include everything in FTAs?  I'm not so sure.  Again, this is a personal perspective.  We've seen that there are other forests that deal with trade issues as well that are not necessarily FTAs.  We also see that UN has approved different decisions and resolutions that touch some of the issues that are the concern of Civil Society.

And I would like to repeat what I would say eventually in the opening session, but I think there's a lot more going on beyond the FTAs and that maybe it's important to look at that as well.  Thank you.

>> JEREMY MALCOLM: Thank you.  David first, and then Burcu.

>> DAVID SNEAD: Great.

>> JEREMY MALCOLM: Yes, if Eileen wants to comment, can you let us know and then we'll bring her in.

>> DAVID SNEAD: So I really appreciated your comment and I wanted to clarify, or amplify, what I mean, actually, by the term broken.  Not host of which because my phone keeps buzzing and that apparently is something that people are very excited about, that I said the trade agreement process is broken.  So, here's what I mean by broken.  To amplify it, it ‑‑ first of all, the trade agreement process is not broken because governments are not working.  The people I know at the U.S. Trade Representative are probably some of the hardest working people that I have ever encountered.  They are insane, the amount of work that they do.  So it's not a ‑‑ something that's to take them to task. 

What I really want to get at when I say broken is, you're not involved, right?  EFF is not involved.  Public citizen is not involved.  There's not an avenue for their concerns to be brought to the attention of people who are negotiating in a meaningful manner.  I don't say that to say that people who are negotiating agreements aren't aware of the concerns that Civil Society brings up.  It's just that the process isn't really designed to accommodate them because the process was designed in the 30s, 40s, and 50s to deal with tariffs, right?  That's the first point.

The second is extreme secrecy.  I don't think that extreme secrecy in the trade agreement process is warranted.  It's not open so much in the business context anymore.  It's also very capital focused.  By that, I mean you really have to be in Washington in order to influence US trade negotiators.  You just have to be there to go in and meet with them.

And the third is, or the fourth is, it's really under-resourced.  The internet is a very young area as opposed to, say, the steel industry, and the issues that are being faced haven't been resolved yet.  There hasn't been a consensus about the issues we're discussing so there need to be more resources to help surface those issues and try to come to some consensus that will allow trade agreements to serve the purpose they're designed to serve and that is to level a playing field for business to make business transactions more easy.  That's honestly the real goal of trade agreements.  I wanted to amplify that.

>> JEREMY MALCOLM: Thank you.  Burcu and then Judith.

>> BURCU KILIC: Okay.  I have a couple of comments.  This digital trade agenda, there is this digital trade agenda discussions going on the last couple of years, and you see the same agenda everybody.  This is not the FTAs.  We had the digital trade agenda.  APAC, even IBM has a digital trade agenda but whose agenda is that?  Who created this digital agenda?  So we talk about going back to opening the discussions on digital trade, but the developing countries, they don't have digital trade agenda.  All the digital trade agenda doesn't include the consumers or the users.  It's very business oriented.  It's very U.S. business oriented agenda.  And we discuss the agenda in every venue.  So going back to the W2, opening up those e‑commerce discussions is not beneficial for developing countries because they haven't figured out their agenda yet.  Like, we have all these infrastructure problems in Africa.

Like, before we sort those problems, how can we develop a digital trade agenda for Africa?  This is not the game of equals.  We have big companies with the lobbying facilitate facilities notice U.S.  They push for their own agenda in every venue then we have all these countries trying to figure out.  And people tell them, e‑commerce is great for you because you will be able to sell your goods in the U.S., but it's not going to work like that. 

We haven't discussed that.  So opening a negotiation in the WTO, we are not there yet.  The countries have to figure out their own priorities, sort their infrastructure problems, and then they will be ready.  Because the technology is developing.  I mean, ten years ago, we didn't have Uber, we didn't have AirBNB.  We don't know the technology we will have in the next ten years and coming up rules for those technology and forcing countries in the WTO or other venues to come up with rules for those future technologies is not working.  It's only working for the businesses.  Who shaped that agenda?

Another thing, when we look at the digital trade agenda, the most important issue is the transports.  Every time we raise this concern, especially the businesses, like they blame us.  Like, so you don't want the technology?  Or you don't want the free flow of data?  Like in 21st century agreements, in 21st century trade, of course there should be data transfers.  Of course there should be across the border data transfers.  It has a legitimate place but this doesn't mean we have to sacrifice or compromise our privacy.  Privacy or data protection shouldn't be discussed in trade agreements but if we are putting provision on cross border data transfer or in a trade agreement, my privacy becomes a part of that argument.  Of course that should be something for my privacy and data protection.

We have to see the other side.  That's why we need to include consumer perspective, user perspective, the developing country perspective, and then start the negotiations.

>> DAVID SNEAD: And for the record, I agree with you.

>> JEREMY MALCOLM: Before I move on, I should say there is another panel later today on the trade and services agreement where you can hear more about the data transfers and data aspect and other part of the e‑commerce agenda.  So Judith, did you have some more?

>> JUDITH HELLERSTEIN: Yeah, sure.  I do agree with what a lot of the things on the trade issues, which is also refreshing why on so many internet issues they don't necessarily exist.  And I think also is the value of being, if you decide to take part in any of these meetings.  So while David is saying, yes, you have to be in DC to influence it.  With a lot of the State Department task forces, in fact, even many of them, the meetings are held on the phone and often times even the people in DC are not at the meeting location, so they're interacting on the phone.  And they may only come when a certain higher level official is coming to the prep meeting. 

So, if it's a prep meeting where the ambassador is briefing people, you'll have a lot more people coming to the meeting that will be on the phone.  So there is an equal access on that end.  But I also think, what I think would be very helpful if they had it in other areas is if you're on a delegation, they create these white papers and the idea of the white papers are, what is the policy?  What are the best practices?  What are the bad things some other countries are doing?  What are the good things some other countries are doing?  So that way, when you have meetings outside, as you know, many of the best parts of the IGF are the coffee breaks or meetings in the hallways, so when you have these meetings in the hallways, you can discuss these issues and explain them to different country, to different people in different countries so that the developing courts can more understand, oh, what is the point on privacy you have and what is the point, what is the U.S. ‑‑ explain to them why cross‑border is really in their interest and that type of thing and I think these white papers help to formulate that idea.

Unfortunately, because they're created in delegation mode, they can't be shared.  But, that's sort of how they're taking.  And I know especially is, the U.S. especially within the I IT framework is part of the latish American region and they are working very, very closely with other countries in their region because it is felt to get really, in this type of world, you need a regional perspective and you need to really be cognizant and work with your region because if you don't work with your region, you're not really going to get your points across.  And so that, I think, is at least on the internet issues is looking, Okay. We really need to be in step with our region and we need to educate them more on certain issues and find out, what are the gaps, where we could go forward.  And then one other point is, the multistakeholder, I think their US government is really interested in finding places or people, if you find in a particular session, ITU or other meetings you have, that sometimes Civil Society is excluded or others are excluded that talking to government officials and giving your viewpoints to them, they can then tell other people, no, this should not be done.  No, they complain.  We need to have this meeting open.

And there's work towards that.  In fact, when the IGF was being negotiated, the renewal negotiated last year, there was a UN started homing meetings, there was a real push to educate the UN on the style of multisector participation that was with us.  How we can bring that.  How we can get these meetings to be more open.  And they were very accepting to us.  They just didn't know.  It wasn't their norm so they were not aware so they made great slides in the Civil Society forms.  Like okay, how do we reach out?  Because that wasn't their norm and they were not used to T. they were used to, in the UN, working only with governments.  So they were not used to that.  But once you educate them, I found at least in that forum, they were very receptive to hosting them and I know they did a lot of work, especially with the IGF renewal, welcome Civil Society input so welcome other inputs.

>> JEREMY MALCOLM: I think that's a useful point.  We can't regard any country as being a single unitary organization.  Certainly, we do see differences in the United States ‑‑ sorry to harp on the United States, but between the United States trade representative, the state department, the NTIA, the offices of science and technology policy.  These are different agencies and parts of government which had often have different views.  Other example would be on ITs, there would be different perspectives between USTR and the people who work on health and between the Library of Congress.  One thing my organization and some of the other members, including some on this panel, we're going to be participating on a meeting that will bring some of those agencies of government together in material next year, January next year to try and break some of the barriers and actually get some discussion going not only between Civil Society and government but also within the agency to the government.

So, do we have any interest from Eileen in coming in?  How about we move to the floor, then.

>> JUDITH HELLERSTEIN: We should get a roving mic.  Is there a roving Mike?  Do you have the mic to hand around?  They had them in this room before.

>> JEREMY MALCOLM: If not, why don't we ask the participants from the floor to come up.  You can use this microphone.  So, Nick.

(laughter)

>> Thank you.

>> JUDITH HELLERSTEIN: We got a mic.  We have a mic.

(laughter)

>> Thank you very much.  Thank you, everyone, for a really fascinating panel.  One of the questions I had is about the information costs of Civil Society participating in this area.  It's hard enough, from what I hear, for people who work full‑time on trade issues to be able to participate in all of these different agendas.  For those of us from Civil Society organizations, and other sectors who are deeply interested in trade but don't have the time to always follow along with everything and get up to speed with that long institutional history that you were talking about, do you have any ideas about how we might make it easier for a broader group of stakeholders to be able to participate in here?  That was a really good comment about white papers.  That was important.  I just wondered about other ideas from the panel.

>> That's something we discuss in Brussels.  Like I spent the last almost four years going to every TPP round, talking to negotiators, and they've made a difference, I guess.  Because you have to be very present.  Like, you have to go to the negotiation rounds.  But I was representing the Civil Society and we created a travel budget for that and I put all my time and energy into the TPP.  It somehow worked, but it wasn't enough.  I wish there were more Civil Society members like in the lobby because the businesses were coming as big delegations.  So, and that's something we discuss in before you else, because like for us, that's something all of us observe.  If you want to do trade, you have to go to those negotiations.  Like, and even if the doors are closed, you need to find physical therapy window and try to get in.  And we came up with a couple of recommendations and, yeah.  Maybe you should talk about them.

>> JEREMY MALCOLM: Well one thing is that ‑‑ if you want to have participation from other group, you need to really resource them.  We are coming from a much less resourced position than other stakeholder groups so obviously, our voice is going to be less.  So, there needs to be active outreach, active facilitation of incorporating our views into the process.  And this takes time and it takes money.  But the legitimacy of the outcome is going to benefit if it that happens.  And, the end result will be that we're not going to have such a public disquiet over these agreements.  The TPP was rejected so decisively because people thought they weren't being heard and they were correcting that.  So it's even in the interest of the lobbyists who want these events to go through to make sure that that balance is also there.  Because they need to have public support for these agreements.

I don't think anyone on this panel would say that they're anti-free trade.  And, but we're just against the way that trade agreements are done now.  They could be done better.  And institutions do change.  The Internet Governance Forum didn't exist 20 years ago, and likewise, as David said, the way the trade organization was set up was in the 30s and 40s when tariff asks were set up.  It's the 21st century.  We can think outside of the box and innovate, learn in redesigning the regime to work a little better.  I won't go through all of the recommendations that we came up with in Brussels but you can check that out by going to the website opendigital.trade and there's a link there.  Also for anyone interested in participating, because it's got a log‑in, if you want to be able to log in and actually work with us on trying to reform trade negotiation processes with digital issues, you're welcome to contact me and I'll explain more about how you can actually get involved.

>> We have an online question.

>> Eileen has a comment, but she doesn't connect account and she wants to share the comment.

>> JEREMY MALCOLM: Just start speaking as soon as you're ready, Eileen.

>> Hello?

>> JEREMY MALCOLM: Yeah, we can hear you.

>> Great.  I wanted to add a few comments.  One would be in response to the issue around whether we have these discussions at the WTO or not.  The reality is that there is already an existing work program at the WTO and so all members have agreed to have discussions and there are no countries now that are opposed to having discussions because that was what they had agreed to in 1998.  And so no one is now saying, let's not discuss.  Because it is a reality.  We all want to discuss to understand things better, but what developing countries, some of them are saying is, we don't want to have new rules and we don't want to have negotiations.  We want to understand better.  Hello?  Can you hear me?  Yes.  So, they are saying, we want to understand all of these things better and we need more time to get our infrastructure in place.

We need more time to have, to join to the electricity grids because one‑third of Africa only has electricity.  The others do not.

So, there is much more time that is needed before we can get up to speed with this new way of doing commerce.  So, this is all countries are saying this.  No one is basically not agreeing to discussions.  And I also want to, back to defer with the point that was made that things are more transparent at the WTO.  This is not so.  In the last Ministerial that took place in Nairobi last year, you only had five countries that oversaw most of the negotiations.  The majority of the delegations were sitting in the coffee lounge buying coffee waiting for five delegations to come out with the Nairobi Ministerial decisions.  No one had an overview of all the things going on, and certainly not the most important things going on which were put in at the last minute into the ministerial declaration.  So there are huge problems in the way it functions.

So those were the huge points and I want to second what Burcu said around the issue of infrastructure.  There was a very interesting article by The Guardian and they went and asked the African department bank president was, is e‑commerce and connection to the internet going to reboot Africa?  And his answer was, well, only one‑third of the people in sub-Saharan Africa have access to grid electricity.  So, first, if you can't have electricity, you can't drive industrial development.  So first things first.  We need to first build the infrastructure.  Thank you.

>> JEREMY MALCOLM: Thanks.  So that's very useful to clarify that there will be some form of digital agenda going forward at the WTO and that it's not necessarily going to go forward in the way that we want in terms of transparency and participation.  So any other questions or comments from the audience?  Yes.

>> JUDITH HELLERSTEIN: Can you get the mic?

>> JEREMY MALCOLM: Pass the mic.  Thanks.

>> Hi.  Jaco from EDU.  I want just to underline two points that I think are useful.  The first is that we have experienced a similar situation after the cultural exception, so called.  Because there, we have a multilateral agreement that then failed.  Didn't cover the specific point.  And then we have a way that they do to improve bilateral agreements.  What was essential not to lose the point was that the Civil Society in each country and all the interested parties were very attentive to control what was happening in each country in bilateral trade agreements in order to be sure that what was the cultural exceptions so code would be respected even when it comes to bilateral agreements.

I think we are now in a similar situation.  We have to respect as Burcu said directly that we are moving the other things into bilateral agreements so it will be equally important as it was for us in the past to have a constant watch on this point in each country.  And have a network in exchanging information.  In Europe, we've set up the coalition, the network of the coalition for cultural diversity that is linked to the UNESCO treaty on cultural diversity.  Through that, we're monitoring the situation all over the world concerning the cultural aspect of the trade.

The second thing is concerning this specific workshop.  I remember that it has in the past been difficult even to get this workshop discussed.  In the past, we had a huge dispute about this.  It's a signal that this is an argument that hurts and this is a signal we're on the right track.  When it hurts, it means there's a problem and the IGF has been created exactly so spot the problems and try to see solutions.  Thank you.

>> JEREMY MALCOLM: We've seen in several areas where there has been a reluctance at first for issues to be taken up by the IGF.  We saw that with critical internet resources back in the early days, net neutrality, and I think trade is a sensitive issue there.  But this year we do have three workshops and one session on trade.  This is the first of the workshops.  There are two more workshops.  One coming up this morning on TISA, which is in room 4, and that's just after the coffee break.  Then we have one on the Trans-Pacific Partnership, which may be dead and yet it's still being implemented in some of the countries that agreed to it so it's not quite dead yet, and it is a model for future trade agreements.  So that workshop is coming up Thursday morning, the TPP workshop, and then Thursday afternoon, we have the main session which I hope you will all attend.

It will be the last main session of the day.  So we have about ten minutes left for further questions.

>> BURCU KILIC: Can I make comment about IGF and trades, because that's something we've been working really hard the last couple of years to bring trade issue to the IGF and to bring the trade negotiators to the IGF because that's something we realized when we were working with TPP and other trade negotiations.  We discuss, we have all these values like multistakeholderrism, transparency, openness, but we can't really translate ‑‑ like we can't really translate that message to the trade people.  Because we come from different worlds.  They speak the trade language and the language is completely different from their language and until very recently, there were different interactions.  So this IGF is very important.  Especially the main session.  We brought like two trade negotiators and then we have like the industry businesses, the representatives from businesses and the Civil Society, and we are going to discuss internet and the trade and the policy making for internet in trade agreements.

But I think we are taking good steps, like in terms of connecting the two different words which have their own languages.

>> JUDITH HELLERSTEIN: Yeah, and I'll comment on that.  And I think what Burcu was saying was exactly success that IGF found last year when right before that IGF renewal was going to be passed was that they got the leaders from UN Dessa who were organizing this to come to an IGF and to experience what it is to be an IGF and what it is to have everyone on equal footing where government is on the same footing as Civil Society, and where all these issues are discussed.  And I think that really helps people who figure out, oh, yes.  This is what multistakeholderrism, this is what it is.  And then they bring it because, as you were saying, they speak a different language.  And they only speak about governments and they don't know what the interaction is.  And from talking to some of the representatives from Dessa last year who came from the different countries, they were not ‑‑ they were the country reps that were chosen by the UN to lead the renewal process.  They got an eye opening of what it is, and they were able to understand, then, the new language of what it is and why it's more important to them and I think that's what's going to be essential for what you're doing, bringing in negotiators here so they can really understand it.

>> MARCELA VELIZ: Just a final comment because some issues have been said and I'm sorry to go back to the discussion, but just very briefly regarding what's going on in WTO and, I agree with the things that have been said regarding the relevance of infrastructure and connectivity and even for innovation.  Like, the type of connectivity that countries have, that's critical.  Because we've seen in some of the African countries that we have a very arrays of mobile connectivity, but I'm not sure if people will innovate through their cell phones.  Actually, probably they will need flat connection to the internet and these are the ones that are not being raising in developing countries.

So, I completely agree with that.  Now, that could be part, also, of their active interest in WTO.  That's not necessarily opposing to other kind of provisions to be put forward and even though there is a mandate as has been pointed out here, it has been very difficult to have any kind of concrete outcome from this.  So more or less, that's what I was addressing.

But I do believe there are a lot of issues that can be addressed.  Consumer protection, was initially talked about here.  And the issues of privacy, I wouldn't say this is a developing, developed issue.  This really is across the board.  What we think of it.  How it could be developed and education is a critical thing.  I have to say I'm really happy to be here.  I appreciate the invitation and really looking forward to the workshops as the participants.  Thank you.

>> JEREMY MALCOLM: Great.  So we have about five minutes.  Are there any questions from the audience?  Yes, can you pass that?

>> Yes, Krishna from the school of governance.  It was very interesting listening to you guys, and I have one comment to make on common language.  I feel the common language is economic function and I feel what the internet has done, the internet as such is new, but what it has done is not something new.  What it has done is brought down the transaction cost for communication.  It has brought down the transaction cost for trade and everything.  I feel what it has done is done erg that trade negotiators are still trying to do which is building trust and having platform for transition cost.  I still don't understand why trade negotiators don't see this.  The thing that be internet has achieved, and embrace these models for better functioning.  Thanks.

>> JEREMY MALCOLM: Thank you.  Well, unless there are any other contributions from the audience, I'm going to give each of the panelists just one minute to close, and I'm going to begin with David since he hasn't spoken for a while.

>> DAVID SNEAD: Sure.  Which is kind of unusual for me, but that's kind of the way things go.  So, this is a very important forum to participate in, and I'm very glad to be able to do it.  And so tall for inviting me to be ‑‑ thank you all for inviting me to be on the panel.  I want to leave with the same statement that I started out with, and that is, in order for trade and trade negotiations and trade agreements to work, the process for negotiating, constructing, and implementing them has to be open, and available to everyone who is affected by the trade agreement.  And that's really our top line.  And I really want to leave with that statement.

>> JEREMY MALCOLM: Thank you.  Judith?

>> JUDITH HELLERSTEIN: Thanks so much for having me.  I also just want to emphasize that to really make your voices known that if you want to participate at all, if you want to get more involved in what your government is doing, make court reporter voices known.  You could also, within your countries, speak to the local Internet Society chapter.  They are also working to help out on educating governments on the right policy issues for multistakeholder.  And so just working with people and in the U.S., making yourself known to the people who are doing it so that that way, they can have the input and hopefully, others, this idea of multistakeholders will spread to other ones and trade will open up.  Other areas will copy that, like copied the other ones.

>> JEREMY MALCOLM: Thank you.  Eileen has a comment.  Okay. Put her through.  Thanks. shall we take her ‑‑ Marcela, do you want to go first while we're waiting for Eileen to come in?

>> MARCELA VELIZ: I will.  I more or less did some final comments but I just would like to add from a government perspective that participation is important, so the voice of Civil Society of businesses is relevant gore government officials.  That's definitely the case.  And I would advise to have constructive contributions to the process, because it's much easier for us as legislators to improve those views within the process.  That would be my final comment, and definitely, this kind of event helps very much to build this trust that's needed.  Thanks.

>> JEREMY MALCOLM: Thank you.  Is Eileen ready?

>> Hi, I'm ready.  Hello?  Yeah.  Great.  Just a last comment on trade liberalization.  I think I want to say that no country has simply gone out and done trade liberalization, not developed and not developing countries because there is limit to protect, and you know, you have ‑‑ employment to protect, and you know, you have people that need work at home.  And this is an issue so much alike now in developed countries.  It's also a big issue for developing countries.  So the internet needs to be thought through very carefully when it is used as the trade route because trade liberalization even though it's prepared by some governments are not being implemented by the same governments, for example, in the area of agriculture.  So those are the sensitivities of the U.S. and the EU developing countries have similar issues in the area of agriculture but also in the areas of product and services because they are less competitive than developing countries, so if they open up, they would be opening up to importing unemployment.  So trade liberalization, yes, we have to have strategic liberalization, but it's not about big bang, let's open everything up.  We need to think it through very, very carefully.  Thanks.

>> BURCU KILIC: Must final comment is, we are running to the TISA panel now.  Please come there and learn more about TISA and the rules.  We're going to talk about the substance, and we have a really great panel.  So hopefully see you.  Room 4.

(laughter)

>> JEREMY MALCOLM: And see you at the main session at the end of the week.  So thank you very much to all our participants and to the audience

(applause)

(Session was concluded at 10:32 a.m. CST)