U.S. Chamber FOIA Requests on U.S. Digital Trade Policy

On December 11, 2023, the U.S. Chamber filed a series of FOIA requests to the Office of the U.S. Trade Representative (USTR) seeking to understand what may have influenced precedent-breaking decisions USTR has made regarding the digital trade provisions under consideration as part of the trade pillar in the Indo-Pacific Economic Partnership (IPEF) and the sudden withdrawal of digital trade provisions from negotiations at the World Trade Organization (WTO). 

USTR has responded to two of the five FOIA requests and has indicated it needs more time to respond to the outstanding requests. USTR has produced its visitor logs for the time requested, and it has produced communications with outside groups Rethink Trade, Open Markets Institute, and Public Citizen. All these documents are available on this page.

The communications from these groups cover a range of topics: event planning, the Inflation Reduction Act, trade with Africa, the WTO TRIPS waiver, and the U.S.-EU Trade & Technology Council, among other topics. However, the documents are heavily skewed toward influencing USTR’s position on digital trade policy.

Below is a summary of the documents’ three key takeaways.

USTR Appears to Be Taking Cues from Rethink Trade, Public Citizen, and OMI 

It is immediately apparent these groups enjoy a privileged relationship with senior USTR officials. While there are multiple staff within USTR that are in communications with these groups, two names stand out: Heather Hurlbert, Ambassador Tai’s Chief of Staff, and Elizabeth Baltzan, Senior Advisor to the U.S. Trade Representative and former fellow with the Open Markets Institute. Baltzan, in particular, seems to serve as a leading point of contact for these groups when they engage the agency. 

That cozy relationship seems to have allowed these groups to drive decision-making at USTR. Of note, the FOIA production shows Rethink Trade’s Lori Wallach, formerly of Public Citizen, emails Ambassador Tai, Heather Hurlbert, and Beth Baltzan on January 19, 2023, her blueprint for upending the digital trade rules that the U.S. government has long upheld.  

Among other things, the memo contains: 

• Faulty legal analysis of existing trade law designed to let trading partners avoid scrutiny over discriminatory treatment of U.S. companies. 
• A specious argument that trade law regarding data flows interferes with privacy and security objectives.   
• The delusive suggestion that protecting intellectual property in trade law prohibits governments from reviewing source code for a specific investigation, inspection, examination, enforcement action, or judicial proceeding.   

The issues raised in the memo have resulted in actions USTR took last year, including within the IPEF and at the WTO. 

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Harmful to the U.S. National Interest 

USTR’s efforts to reverse U.S. policy on digital trade at the direction of Rethink Trade undermine U.S. economic interests around the world. Rethink Trade’s attack casts digital trade provisions as being somehow the product of “Big Tech” special interests.  

On the contrary, companies of every size and across every sector of the U.S. economy are increasingly reliant on the ability to move data across international borders and utilize digital technologies that allow them to operate in global markets.  

Digital trade provisions being attacked by Rethink Trade and now reconsidered by USTR merely ensure commercially vital data flows, protect U.S. exports and associated investments from unfair treatment by foreign governments, and prevent foreign governments from stealing intellectual property from American companies. All of these objectives, now under attack, are in the U.S. national interest. 

The U.S. approach to digital trade rules has enjoyed broad bipartisan support across multiple administrations, and it was enshrined in U.S. law by an overwhelming bipartisan vote of Congress when it approved the United States-Mexico-Canada Agreement (USMCA). Further, these digital trade provisions build on other trade provisions like national treatment that have been at the core of U.S. trade law for nearly a century. Rethink Trade’s attack on digital trade is an attempt to pull on a thread that would unravel several foundational aspects of U.S. trade law.  

The views of Rethink Trade are deeply flawed and unsupported. This has become abundantly clear given the substantial and growing bipartisan congressional blowback following USTR’s abrupt decision at the WTO.  

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Violations of Law?  

USTR may have broken the law. Heather Hurlbert, Ambassador Tai’s recently departed Chief of Staff, is identified as having a communication channel with Lori Wallach over Signal, a platform for ephemeral, cryptic communications that she nonetheless appears to have used to conduct official USTR activities. Page 79 of the FOIA documents directly references the existence of such a channel for “off the books” communications. There are also other references to these outside groups texting with multiple USTR officials.  

The use of Signal and other non-official channels for communications runs afoul of the Presidential Records Act (PRA) unless those communications are copied or forwarded to an official electronic messaging account. USTR, as part of the Executive Office of the President, is subject to the Act. 

The Chamber’s FOIA request defined the term “record” to include, among other things, electronic chats, instant messages, encrypted or self-destructing messages, and text messages.  

Because the PRA includes disclosure requirements for official business conducted using electronic messaging accounts, President Biden’s White House Counsel’s Office likely, among its first actions in January 2021, issued a memorandum to all political appointees within the EOP as to the employees’ preservation obligations under the PRA for the use of electronic messaging accounts, including on non-official accounts or personal devices. 

Where USTR political appointees used text messaging or encrypted messaging on their official devices, those communications should have been produced subject to the Chamber’s FOIA.  

Where USTR political appointees used text messaging or encrypted messaging on their non-official devices, the PRA requires that the employee either copy their official account on the original distribution or forward a complete copy of the electronic message to their official account within 20 days of transmission.  

Either way, USTR should have in its possession a record of the electronic messages beyond the emails it produced. Any messages sent via Signal or other non-official channels should have been produced as part of the FOIA request. 

No such records have been produced, raising questions about the extent to which official business at USTR is being conducted outside official channels.  

Additional Background on The Presidential Records Act (“PRA”)  

Enacted in the wake of Watergate and the ensuing struggle over Congress’s authority to access former President Nixon’s records, the PRA “establishes the public ownership of records created by … presidents and their staffs in the course of discharging their official duties.” H.R. Rep. No. 95-1487, 95th Cong. At 2 (1978) (emphasis added). 

The PRA defines “presidential records” broadly to include, in relevant part, all “documentary materials … created or received by an individual of the Executive Office of the President (“EOP”) whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C. § 2201(2).  

• Presidential records include electronic messages sent or received on covered employees’ official devices, including text messages and electronic communications over messaging apps. 
• Since USTR is a component of the EOP, and USTR political appointees advise and assist the President, those USTR employees are subject to the PRA. 

The PRA further provides that a covered employee may not create or send a presidential record using a non-official electronic message account unless the covered employee:  

• copies an official electronic messaging account of the covered employee in the original creation or transmission of the presidential record; or  

• forwards a complete copy of the presidential record to an official electronic messaging account of the covered employee not later than 20 days after the original creation or transmission of the presidential record. Id. § 2209(a). 

The intentional violation of the PRA’s disclosure requirements for official business conducted using non-official electronic messaging accounts is the basis for disciplinary action that can include removal or suspension from duty.