Algorithms Off-Limits? If Digital Trade Law Restricts Access to Source Code of Software then Accountability will Suffer

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 commitment which prohibits governments to require access to, or transfer of, the source code of software, subject to certain exceptions. A commitment 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 commitment for current and future digital policies by governments that aim to ensure transparency, fairness and accountability of computer and machine learning algorithms.