The US Trade Representative (USTR) recently released its annual National Trade Estimates Report, 2024 (the Report). The Digital Trade Alliance, representing consumer and digital rights organizations from across the globe, welcomes the new approach to this year’s NTE compared to previous years’ reports.

The Report adopts a significantly improved approach to identifying digital trade barriers compared to previous NTE reports. Rather than blindly listing laws that seek to regulate Big Tech companies, the Report explicitly recognises that countries have “a sovereign right to adopt measures in furtherance of legitimate public purposes”. Accordingly, it seeks to adopt a more nuanced approach to identifying barriers to digital trade. 

In particular, we are heartened to see that the Report does not designate data protection and privacy laws that impose reasonable restrictions on cross-border data flows as a de facto trade barrier, instead only identifying such laws as problematic when ambiguous or unclear in scope. Similarly, the 2024 Report does not identify various pro-competition measures being adopted by a number of countries in the context of the digital ecosystem as trade barriers. This has led to expected hyperbolic anger from Big Tech companies that are accustomed to having their long list of gripes related to other countries’ tech regulations regurgitated in previous NTE reports.

That said, we recognise that the Report still recognises 22 jurisdictions with specific barriers to digital trade. A number of measures identified in the report appear to go against the USTR’s proclaimed intent of excluding measures that further legitimate public policy purposes. These include measures concerning taxation of digital services, appointment of local representatives of digital intermediaries/platforms, regulation of online streaming services, and mandatory local content requirements.

While the Report is clearly a step in the right direction, we urge the US and all other governments to avoid using the international trade system as a means to limit the ability of government’s to impose public interest regulation over the digital ecosystem. Governments across the world should be free to adopt measures to protect citizen’s fundamental rights in the digital ecosystem, and ensure a vibrant, just and fair digital ecosystem.