Mara Lee

A senior research analyst from Georgetown University's Center for Security and Emerging Technology cautioned Thursday that in some locations the cost of replacing Chinese hardware in information technology networks with more expensive alternatives outweighs the benefits. Jack Corrigan told the China Economic and Security Review Commission at a Thursday hearing that procurement bans should be targeted at "high-risk sectors, networks and use cases."

The U.S.-European Union Trade and Technology Council shouldn't be seen as a prelude to reentering talks for a comprehensive trade agreement, U.S. Trade Representative Katherine Tai told the Institute of International and European Affairs webinar Wednesday. Though Tai said she would never say never about a new U.S.-EU trade agreement, she thinks the TTC "is quite a comprehensive approach to the most pressing issues," and said she's enthusiastic about its responsiveness to current trade challenges. The TTC held its inaugural meeting Sept. 29 in Pittsburgh, where it agreed to set in motion 10 working groups to address specific tasks before it meets again in the spring (see 2110010037).

House Speaker Nancy Pelosi, D-Calif., said the Inform Act, which requires sellers over a certain threshold to be verified by e-commerce platforms (HR-5502), and the Shop Safe Act, which would ask platforms to make reasonable efforts to screen for sellers that are likely to sell counterfeit goods (HR-3429), both belong in the China package. The Retail Industry Leaders Association asked for legislation that could tackle organized shoplifters selling stolen products online, she told reporters in the Capitol Wednesday. Inform has been accepted by all major stakeholders, but Sen. Bill Cassidy, R-La., told us Shop Safe has some business opposition. The bills (here and here) aren't part of the Senate China package that passed with 68 votes.

Trade groups whose members would pay foreign digital services taxes and those whose members would have to pay if tariffs are hiked up to 25% on products from the countries imposing DSTs agree the levies are wrong and government should use full persuasive power to convince countries like India, the U.K. and Spain not to impose these taxes. Tech groups split on whether tariffs are the right tool to convince countries to roll back or never pass DSTs. The Computer & Communications Industry Association gave the most direct support of levying tariffs on DST countries. In testimony at a virtual Office of the U.S. Trade Representative hearing Monday, CCIA Policy Counsel Rachael Stelly said USTR should work for a global international taxes solution and impose tariffs “to deter countries and send a strong message. CCIA "takes seriously the impact that tariffs can have," she said. "Tariffs should only be used in limited circumstances, in a targeted manner, and where there is a clear strategy in place designed to change the behavior of a trading partner. USTR’s proposed action appears to meet this standard.” Internet Association Director-Trade Policy Jordan Haas said IA has no position on the proposed retaliatory tariffs and hopes duties will never be levied because ideally, countries will roll back DST laws. He's concerned more countries are thinking of imposing such taxes. The App Association opposed tariffs, concerned targeted countries could retaliate and its small company members would be hurt. Representatives from the Retail Industry Leaders Association, National Retail Federation and others spoke against the tariffs.

Digital services taxes drove countries back to the negotiating table on international tax harmonization, and now it may be hard to roll back such DSTs, experts said. Many tech and other stakeholders oppose other countries' digital taxes. The U.S. was driven to talks again because so many countries were considering taxing revenue, rather than profit, of digital giants like Facebook and Google, Deloitte Managing Partner Bob Stack told a Washington International Trade Association webinar Thursday. "Countries need to commit to get rid of these DSTs. That's the deal to be had." Noting a U.S. proposal for Organization of Economic Coordination and Development member-countries to drop such levies, Miller & Chevalier's Loren Ponds said "it’s a matter of everybody dropping their weapons at the same time" and "nobody wants to go first." Georgetown Law professor Lilian Faulhaber reminded that most DSTs haven't actually been imposed. "Part of that is probably because USTR pushed back so hard," she said of the Office of U.S. Trade Representative. USTR didn't comment Friday.

Sens. Chris Van Hollen, D-Md., and Roy Blunt, R-Mo., are promoting their bill to guide government investments in advanced manufacturing or industrial research. Their new National Strategy to Ensure American Leadership Act would ask the National Academies to identify which technologies will be the critical ones in five to 10 years. Van Hollen discussed with reporters Monday U.S. export restrictions to hinder Huawei, which is a 5G infrastructure leader, while the U.S. doesn't make much 5G equipment. “Everything we can do to prevent the existing cutting-edge technologies being used by Chinese military or others” should be done, and for Huawei and ZTE, the U.S. is also justified because they stole U.S. companies' designs years ago, Van Hollen said. Blunt asked, “Why weren't we ahead of Huawei, competing at the same time that they were?” Of technologies that will be as important in 10 years as 5G is currently, he said, “How do we prevent from this happening again?”

The Bureau of Industry and Security is buried within an organization “hostile to the aggressive use of export controls,” and should be moved from the Commerce Department to the State Department, which puts national security first, said Sen. Tom Cotton, R-Ark., Thursday during a Reagan Presidential Foundation program. Cotton wants the Office of Foreign Assets Control (see 2102190012) expanded and sanctions applied to those who steal intellectual property from U.S. firms and to those companies that profit from that theft. “Huawei has been effectively cut off from most high-end U.S. chips; the United States should ensure ZTE is cut off, as well. When the next Huawei or ZTE arises, the government should deal with it in the same manner,” he wrote. He said the U.S. should aim to bankrupt Huawei and ZTE through further sanctions and cut them off from the U.S. financial system. Cotton, who co-sponsored the Creating Helpful Incentives to Produce Semiconductors for America Act (see 2102180023), said work is underway to fund the act. Commerce, Huawei, ZTE and the Chinese Embassy didn't comment Friday.

Trade groups representing intellectual property rightsholders told the Patent and Trademark Office that secondary trademark infringement liability hasn't been effective in getting e-commerce platforms to police themselves. Some want Congress to define the parameters of this doctrine by passing a law. Comments were due Monday. The Computer and Communications Industry Association said shifting responsibility to platforms would reduce voluntary cooperation and wouldn't decrease the number of counterfeits for sale. The American Apparel and Footwear Association said the test of platform liability, that a company should “know or have reason to know” of trademark infringement, seems straightforward, but courts have applied it differently. “The court in Tiffany v. eBay believed that market-based forces would provide a strong incentive for platforms to combat counterfeits. Empirically, it is irrefutable that this assumption is false," said AAFA. The Shop Safe Act (HR-6058) from the last session of Congress would have created a new form of secondary liability for counterfeits, and AAFA said it needs a clearer definition and its coverage should be expanded. The National Association of Manufacturers said legislation is needed to set “judicial review standards that encourage courts to develop critical fact-specific case law.” NAM said some courts say Communications Decency Act Section 230 protections for platforms give them a safe harbor to host sellers of bogus goods, and that wasn't what Congress intended. Amazon noted that in 2019 it invested more than a half-billion dollars to fight counterfeits and other fraud and abuse on its site. “Amazon’s primary focus is on preventative, technology-driven tools built on machine learning and data science to proactively scan the more than 5 billion changes submitted to Amazon’s worldwide catalog" daily, it commented. “For every one of the self-service takedowns by brands, Amazon’s automated protections proactively stop more than 100 listings.” It said it launched a Counterfeit Crimes Unit in June 2020: "Amazon needs the help of rights holders, the company said, and information sharing, from both [Customs and Border Protection] on seizures and from other platforms, would help the company stop counterfeiters."

Commerce Department rules for reviewing transactions involving some foreign telecom and IT products and services would cost all 4.5 million firms possibly affected as much as $20 billion, the department says in Tuesday's Federal Register. The rule allows Commerce to step in to review any proposed, ongoing or pending ITCS goods or services transaction. The rule provides for an optional "licensing" process whereby companies can request a review of their transaction and, if approved, get safe harbor. Procedures for the licenses will be published by Commerce in 60 days, the rule said. Included in the new supply chain rules are information or communications technology used in a critical infrastructure; software, hardware and services integral to wireless local area networks, mobile networks, satellite payloads and operations and control; software or hardware that has sensitive personal data on more than 1 million U.S. customers; and software designed for communicating via the Internet used by more than that number.

The top Republican on the House Ways and Means Committee supports extending Trade Act Section 301 tariff exclusions on Chinese imports automatically instead of through burdensome notice and comment proceedings, he told reporters Wednesday. The Trump administration should alleviate “the energy and effort that businesses have to undertake to extend these exclusions right now when they frankly have bigger fish to fry,” said Rep. Kevin Brady, R-Texas. He said he expressed his views to U.S. Trade Representative Robert Lighthizer and Commerce Secretary Wilbur Ross. Brady supports bipartisan legislation sponsored by fellow Ways and Means member Rep. Jackie Walorski, R-Ind., and House Agriculture Committee Chairman Collin Peterson, D-Minn., that would direct USTR to extend expiring exclusions for at least a year, but would give the agency some discretion when it disagrees (see 2007170050). U.S. businesses should be “focused on surviving” the COVID-19 pandemic and keeping people employed instead of scrambling to find non-Chinese sourcing or arguing for an exclusion extension, Brady said. USTR and Commerce didn’t comment Thursday.