A 2014 ruling by the U.S. International Trade Commission (ITC), a little-known regulatory body created by the Tariff Act of 1930 to regulate imports, could have far-reaching implications for the borderless Internet.
In a case brought by Align Technology against ClearCorrect Operating, in which the former charged that ClearCorrect violated patents on invisible teeth aligners by importing digital files crafted by a Pakistani firm, the ITC ruled that its regulatory authority extended to “electronic transmissions of digital data.” Leaving aside the intellectual-property components of the case, the ITC’s ruling, currently under appeal, has left a lot of companies and organizations worried over the uncertainty of global e-commerce.
As I point out in an article for The Hill today:
This ITC ruling could potentially lead to the erection of a digital trade wall around the United States, with all digital data flowing from overseas subject to search and seizure by the ITC.
Of course, “search and seizure” isn’t the same in the digital realm as it is with ports-of-entry. After all, those pieces of imported “digital data” that the ITC claims to have regulatory powers over can’t be stopped and searched at the border – not without the assistance of Internet Service Providers (ISP) acting as its agents. As I explain in the aforementioned article:
Unlike physical goods entering U.S. ports, digital data cannot be stopped and inspected at the border. As the … [Electronic Frontier Foundation and Public Knowledge] amicus brief points out, “Internet data transmissions enter the United States through … internet service providers [ISPs]. Thus, the ITC’s decision to treat data transmission as imported articles raises real and unanswered questions about the enforcement role that such service providers will be forced to play.”
Will ISPs begin site and content blocking? Are Google and other content providers now to be subject to the ITC’s new, self-declared regulatory powers? Many questions remain in the wake of the initial ruling – here’s hoping the appeals process offers a rejoinder to the ITC and makes this newfound uncertainty a moot point.