Regulating Digital Trade

Under § 337 of the Tariff Act, the International Trade Commission (ITC) has jurisdiction over articles that enter the country and infringe intellectual property rights. Recently, the ITC vastly expanded its powers, asserting jurisdiction over imported digital files that infringe intellectual property rights. This Article examines the limits of the ITC’s authority, arguing that it lacks jurisdiction over digital information, because information in the abstract cannot be controlled by a court or an agency. It maintains that the ITC has misconstrued the breadth of its statutory authority under the Tariff Act and that the traditional tools of statutory interpretation show that Congress intended for the term “articles” to be limited to tangible personal property.

Finally, this Article discusses how interest groups including the Motion Picture Association of America are attempting to use the ITC to block information at the U.S. border, and considers the significant risks that this poses to the public welfare.