Brief of PK and EFF in ClearCorrect v. ITCOctober 16, 2014
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United States Court of Appeals
for the Federal Circuit
CLEARCORRECT OPERATING, LLC, and
CLEARCORRECT PAKISTAN (PRIVATE), LTD.,
INTERNATIONAL TRADE COMMISSION,
ALIGN TECHNOLOGY, INC.,
Appeal from the United States International Trade Commission, Inv. No. 337-TA-833
Brief of Amici Curiae Public Knowledge and the Electronic Frontier Foundation in Support of Appellants
In the sweeping and unprecedented decision below, the International Trade Commission found that its authority to regulate trade extends to pure "electronic transmission of digital data" untied to any physical medium. Generally, by statute, the Commission's jurisdiction is limited to oversight of "importation . . . of articles." However, the Commission expansively construed the term "articles" to potentially include anything "bought and sold in commerce," thereby leading to its conclusion that digital data was an article of importation. This broadly sketched statutory construction fails to indicate clearly any limiting principles on the Commission's power.
Among other things, the Commission's decision leaves open the question of whether all transmissions of telecommunications data are within the scope of its authority.
The Commission, being a "creature of statute," is most certainly limited in its power. In particular, as explained in detail below, the Commission does not have jurisdiction over general telecommunications data transmissions, such as telephone calls, telegraph messages, and television and radio broadcasts. The historical context of the Tariff Act of 1930 evinces absolutely no legislative contemplation of ITC authority over telecommunications, and strong policy considerations favor openness of communications channels such as the Internet and thus disfavor the Commission's manufacturing of new powers over data transmissions.
Accordingly, for the reasons set forth in detail below, this Court should reject the Commission's overzealous construction of the statutory term "importation . . . of articles." The Court should articulate those limiting principles, ignored by the decision below, that circumscribe the Commission's authority, at least to ensure that the agency cannot assert power over all international telecommunications data transmissions.
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