The free flow of information was, as IO has discussed, the guiding doctrine of US international communications policy from the 1940s – the era of news agencies and movies – to the late 2010s and internet-enabled transnational data flows.[1]
In the face of growing restrictions placed on cross-border data flows by numerous other countries, however, the Biden Administration thereafter reduced the purchase of this foundational policy. Free flow continued to guide the US agenda, but for digital trade blocs: alliances between the US and specific groups of other countries. The US-Mexico-Canada trade agreement and the US-Japan trade pact were leading examples; and the US sought to expand on these, notably through negotiations on the Indo-Pacific Economic Framework for Prosperity (IPEF).
While still underlining its ostensible commitment to free cross-border flows in general, in February 2024, the Administration nevertheless moved to hedge this through an Executive Order portending restrictions on access to Americans’ “bulk-sensitive data” by “countries of concern.”[2] If the policy context had come to seem ambiguous in early 2024, however, then this was mostly because, paradoxically, in late October 2023 it had grown startlingly clear. This was when the United States Trade Representative (USTR) suddenly withdrew US support for free cross-border data flow provisions in both the ongoing IPEF and World Trade Organization negotiations – upending the prior US position.[3]
How could this happen? The US had been compelled to attenuate its longstanding free flow policy by virtue of its reduced global power or, put differently, because other countries had succeeded in mandating local storage of data and/or in imposing restrictions on international data flows. In response, the US had “shrunk” its policy to apply to digital trade blocs of allied countries – still collectively accounting for a large share of the global economy. With the late October action, however, the Trade Representative sabotaged the very policy that the US had hitherto done its utmost to preserve, albeit with a reduced footprint. Why?
Trade lobbies immediately fixated on this question, and the USTR’s action drew howls of protest. Indeed, the response was as fierce as any in IO’s memory. Industry associations of both tech company suppliers and big business users of data joined in denouncing the decision; the International Chamber of Commerce (ICC) even filed a FOIA to try to learn details of the backstory behind the determination.[4] Cross-border data flows, they all shouted, simply had to be unencumbered of federal meddling. Their routine operations as multinational corporations, their consumers’ welfare, their profits, all demanded it.
It turned out that, concerned about the power of giant tech companies to send and sell Americans’ data worldwide without regard for personal privacy, several anti-monopoly liberals had apparently influenced the office of the USTR to arrive at its determination.[5] Armed with the ICC’s FOIA documentation, a congressional committee then convened an investigation.[6] This of course heaped pressure on the Trade Representative.
However, the underlying question remains: how was it possible for a small group of politically connected, pro-privacy antitrusters to dethrone a deeply engraved policy priority? How came there to exist such contingency in the face of such a longstanding state imperative? Ignorance? Incoherence – one part of the USTR operating without reference to another’s guiding hand? An atypically sympathetic and liberal Trade Representative? The basic issue here is that the USTR’s declaration seems to challenge, even to fly in the face of, a theory of structural determination. How may we account for this anomaly?
We predict that the Trade Representative will reverse herself in the face of the high-profile pressure being placed on her by combined capital and its political affiliates. If that turns out not to happen, then the story bids fair to become even more interesting.
[1] Please see Dan Schiller’s four-part series on free flow of information.
[2] The White House, “Executive Order on Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern,” February 28, 2024. Also see US Justice Department, National Security Division, “Provisions Regarding Americans’ Bulk Sensitive Personal Data and Government-Related Data by Countries of Concern,” Federal Register March 5, 2024,
[3] Office of the United States Trade Representative, Executive Office of the President, “USTR Statement on WTO E-Commerce Negotiations,” October 24, 2023; David Lawder (2023), “US drops digital trade demands at WTO to allow room for stronger tech regulation,” Reuters, October 25; Meredith Broadbent, “USTR Upends U.S. Negotiating Position on Cross-Border Data Flows,” CSIS, December 12, 2023; Alan Beattie, “Uncertainty Dogs the Global Digital Market,” Financial Times, February 21, 2024.
[4] U.S. Chamber of Commerce, “U.S. Chamber FOIA Requests on U.S. Digital Trade Policy.”
[5] The Editorial Board (2024), “The Story Behind Biden’s Trade Failure,” Wall Street Journal, February 12.
[6] House of Representatives, 118th Cong., Committee on Oversight and Accountability, James Comer Chairman, Letter to The Honorable Katherine Tai, United States Trade Representative, Politico, March 4, 2024.
