Information can't be stopped and frisked at the border, federal court rules

14 November 2015 by Steve Blum

Internet data is not a material thing. That was the ruling from a federal appeals court in Washington, as it told the International Trade Commission – a federal agency involved in policing intellectual property disputes, among other, um, things – to stay out of the business of trying to regulate international Internet traffic

The Tariff Act of 1930 provides the International Trade Commission (“Commission”) with authority to remedy only those unfair acts that involve the importation of “articles”…Here, [the ITC] concluded that “articles” “should be construed to include electronic transmission of digital data…” We disagree.

[The ITC’s] decision to expand the scope of its jurisdiction to include electronic transmissions of digital data runs counter to the “unambiguously expressed intent of Congress.”

“We begin with the text of [the statute].” Here, it is clear that “articles” means “material things”…

We recognize, of course, that electronic transmissions have some physical properties—for example an electron’s invariant mass is a known quantity—but commonsense dictates that there is a fundamental difference between electronic transmissions and “material things.”

The case at issue involved a U.S. company that was sending images of dental patients’ teeth to an affiliate in Pakistan, where custom orthodontic appliances were designed and then transmitted back to a 3D printer in the U.S. In the process the company infringed someone else’s patent, according to the ITC. The remedy was “to order [the company] to stop electronically importing digital models into the United States”.

It’s an obscure dispute, but it has huge implications. Under the ITC’s logic, it could block the transmission of any international data that it believed violated someone’s intellectual property rights. That would have left global Internet traffic to the tender mercies of the predatory bar and patent trolls.

Luckily, two federal judges thought otherwise. But the dispute might not be over: the decision could be appealed to the supreme court. The dissenting judge on the panel offered a possible line of attack…

It is reported that the elusive Higgs boson, a fundamental particle of matter, has been detected by observing its effects. By the same laws of physics, digital matter is most readily observed in its effects. The panel majority’s ruling that such matter is not “material” is contrary to the law of the courts, the Customs agency, and the Commission.

The Higgs boson is the particle that gives other particles mass. It would be ironic if it also gave weight to the idea that information can be blocked, censored or otherwise regulated as if was just cargo in a ship’s hold.