[co-author: Nicole Hager]

* This alert was originally posted on January 6, 2021 and updated on May 13, 2021.

UPDATE: On May 6, 2021, following a request from the US Senate Finance Committee, the US International Trade Commission (ITC) announced that it was opening a second investigation into foreign censorship (Foreign Censorship Part 2: Trade and Economic Effects on American Businesses, Inv. N ° 332-586) and by speeding up the schedule of comments and hearings for the first inquiry (Foreign Censorship Part 1: Policies and Practices Affecting U.S. Businesses, Inv. No. 332-585). On January 26, 2021, the ITC announced that it would open a new information investigation, “Foreign Censorship: Trade and Economic Effects on American Businesses,” into the effects of foreign censorship policies and practices on state-owned businesses. -United.

ITC invites the public to submit comments in both surveys. Written comments on the first survey must now be sent no later than 5:15 p.m. on July 22, 2021. These comments should cover foreign censorship policies and practices that US companies believe impede trade or investment in foreign markets; details of how these policies have evolved over the past five years, including instances of extraterritorial censorship; and a qualitative analysis of the trade and economic effects of these policies on US businesses. Written comments for the second survey are expected no later than 5:15 p.m. on January 14, 2022 and should cover the qualitative and quantitative impact of foreign censorship on employment, direct costs, lost revenue and sales, “self-censorship” and other relevant factors.

The ITC will hold a joint virtual hearing for the two inquiries at 9:30 a.m. on July 1, 2021. Requests to appear at the hearing must be made no later than 5:15 p.m. on the June 17, 2021.

The reports of the first and second investigations are expected on December 30, 2021 and July 5, 2022 respectively.

For more information on participation opportunities, please contact one of the attorneys listed on this alert.

On January 4, 2021, Senator Chuck Grassley (R-IA) filed a request with the US International Trade Commission (ITC) for a Section 332 investigation into censorship as a non-tariff barrier to trade . The request follows a Senate Finance Committee hearing on June 30, 2020 on the matter. Although Section 332 investigations are general fact-finding procedures and do not directly result in any formal trade action, this request by the Chairman of the Senate Finance Committee could represent a significant development in the trade policy of the United States. United States. A formal shift towards treating censorship as a trade barrier could have broad implications for industries like social media, film, news, and traditional publishing.

Senator Grassley’s request asks the ITC to identify and describe “various foreign censorship practices, particularly examples that US companies see as hampering trade or investment in major foreign markets,” and analyze “the commercial and economic effects of these policies and practices on affected companies in the United States.” Although he does not identify any particular country, he is probably primarily targeting China, whose censorship regime, including the “great firewall” and strict controls on the distribution of films, publications and other audiovisual products. foreigners, has been a permanent source of publicity. and political tensions.

The United States has historically avoided directly challenging trade-related censorship regimes, including those of China, in order to separate economic issues from human rights issues. Over the past decade, however, the distinction has become increasingly untenable following high-profile events such as Google’s official withdrawal from the Chinese market in 2010. The 2010 Congressional Executive Committee’s annual report on the China, for example, noted that “The controversy between the Chinese government and the American company Google has highlighted the potential of China’s censorship requirements to serve as a trade barrier and to get companies to stop providing services to consumers. Chinese citizens, further restricting the free flow of information. ” As of 2016, the US Trade Representative’s National Trade Estimate Report highlighted China’s Great Firewall as a “significant burden” for cross-border Internet content providers. Although the WTO did not directly address censorship regimes, the Appellate Body ruled that China’s restrictions on audiovisual marketing rights could not be justified under the provision on ” public morals “of Article XX (a) of the General Agreement on Tariffs and Trade.

Upon formal establishment, ITC will hold a public hearing and solicit written comments from interested parties.