Free trade agreements are increasingly used to construct an additional layer of protection for source code of software. This comes in the shape of a new prohibition for governments to require access to, or transfer of, source code of software, subject to certain exceptions. A clause on software source code is also part and parcel of an ambitious set of new rules on trade-related aspects of electronic commerce currently negotiated by 86 members of the World Trade Organization. Our understanding to date of how such a commitment inside trade law impacts on governments right to regulate digital technologies and the policy space that is allowed under trade law is limited. Access to software source code is for example necessary to meet regulatory and judicial needs in order
to ensure that digital technologies are in conformity with individuals’ human rights and societal values. This article will unpack and analyze the implications of such a source code clause for current
and future digital policies by governments that aim to ensure transparency, fairness and accountability of computer and machine learning algorithms.
- software Source code Computer algorithms Application Programming Interface International trade law digital policy transparency fairness accountability