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The International Trade Commission should not control the flow of data

Last week the U.S. Court of Appeals for the Federal Circuit heard oral arguments in ClearCorrect Operating, LLC v. ITC. The hearing addressed a 2014 ruling by the International Trade Commission (ITC) in a case brought by Align Technology.

Align Technology contended that ClearCorrect had illegally imported digital files used for the production of invisible teeth aligners, for which they hold patents.  

{mosads}The ITC ruled in favor of Align, asserting that its regulatory powers extend to “electronic transmission of digital data”. This should cause great concern.

Some organizations, such as the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), support the ITC’s argument. These organizations focusing on the intellectual-property component of the case, have  argued that deference is due the ITC, because it is “one of the most open, inclusive and fair bodies in our government.”

But this is not just an intellectual property issue. The implications are far broader.

Despite what supporters of the ruling maintain, the ITC was never meant to have jurisdiction over the transmission of digital data.

As a recent letter signed by the R Street Institute, Niskanen Center, and FreedomWorks points out, the Tariff Act of 1930 was written at a time when electronic communications were common. Therefore “the exclusion of electronic communications from the commission’s jurisdiction … should be seen as a deliberate choice.”

An amicus brief filed by the Electronic Frontier Foundation (EFF) and Public Knowledge (PK), as well as an earlier letter signed by a broad bipartisan coalition of opponents of the ruling, similarly argues that the ITC ruling is an imprudently broad interpretation of its statutory powers.

The electronic transmissions in question, in this case, are merely the mode by which digital files are transported into the United States. Permitting the ITC to regulate “electronic transmissions of digital data” would be tantamount to granting the ITC the power to regulate freight ships and airplanes because they can transport illegally pirated goods into the United States.

The ITC’s overly broad interpretation of its regulatory purview has the potential to set a dangerous precedent for the free flow of data across the internet.

Up until now the internet has been a relatively open platform for global commerce.  However, 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.

Unlike physical goods entering U.S. ports, digital data cannot be stopped and inspected at the border. As the aforementioned joint EFF-PK 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 the ITC have broad discretionary powers to force ISPs and search-engine providers to block specific content transmitted over the internet? It might seem like a stretch of the imagination, but the assertion of such power is likely enough that members of the Internet Association (a trade association representing internet organizations such as Google, Amazon, and Facebook) have submitted their own amicus brief in opposition to Align Technology’s suit.

If Align Technology truly believed ClearCorrect infringed its patent and violated its copyright, it can pursue legal action against the company. Nothing in the ITC’s decision strips away copyright or patent protections for domestic firms. What it does do is promulgate a new expansive and potentially burdensome interpretation of the ITC’s regulatory powers—not just over digital data but the Internet itself.

Hagemann is a civil liberties policy analyst at the Niskanen Center, an adjunct fellow at TechFreedom, and a Young Voices advocate.

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