Section 301 of the Trade Act of 1974 authorizes the United States Trade Representative (USTR), at the President’s discretion, to impose tariffs where an “act, policy, or practice of a foreign country” is “unreasonable or discriminatory and burdens or restricts United States commerce[.]”[1] Section 301 has historically served as a principal statutory tool for addressing foreign trade practices viewed as harmful to U.S. economic interest, particularly in technology, intellectual property, and digital services. Prior to the Trump Administration, the U.S. primarily used Section 301 to pursue dispute settlement at the WTO.[2] During the first Trump Administration, USTR initiated six investigations under Section 301.[3] Only the investigations targeting China and the European Union (EU) resulted in tariffs, including duties imposed in 2020 on aircraft-related EU imports.[4]

A significant development occurred in 2017, when, at President Trump’s direction, USTR investigated China’s conduct related to “technology transfer, intellectual property, and innovation.”[5] USTR concluded that China engaged in unreasonable and discriminatory conduct constituting a violation under Section 301’s standards.[6] President Trump accordingly instructed USTR to take “all appropriate action[,]” resulting in an initial tranche of 25% on approximately $50 billion in Chinese imports.[7]

In the Section 301 Cases, the U.S. Court of International Trade considered whether the Trump Administration’s tariffs were subject to notice-and-comment obligations under the Administrative Procedure Act (APA) or fall within the statute’s foreign affairs exemption.[8] The Court held that the exemption did not apply.[9] On remand, the Court later sustained USTR’s explanation and upheld the tariffs.[10]

The statutory four-year review of the China tariffs concluded in 2024 under President Biden.[11] Following that review, USTR chose to maintain existing China tariffs, and increase rates on certain products, including electric vehicles.[12] The Biden administration also initiated three Section 301 investigations: (1) labor conditions in Nicaragua; (2) China’s semiconductor policies; and (3) China’s conduct in the shipping and shipbuilding sectors.[13] These investigations continued the use of Section 301 to address both traditional trade concerns and emerging geopolitical issues tied to industrial capacity and supply chain.

Another key focus under Section 301 involved digital service taxes (DSTs) enacted by several U.S. trading partners.[14] During President Trump’s first term, USTR investigated DSTs adopted by Austria, France, India, Italy, Spain, Turkey, and the United Kingdom.[15] USTR found in each instance that the DSTs “discriminated against U.S. digital companies, were inconsistent with principles of international taxation, and burdened U.S. companies.”[16] USTR announced 25% tariffs covering approximately $3.4 billion in imports, but immediately suspending implementation to allow time for multilateral negotiations.[17]

DSTs impose taxes on certain gross revenues earned by large digital platforms.[18] A White House fact sheet at the time explained that DSTs “allow foreign governments to collect tax revenue from American companies simply because they operate in foreign markets,” even when such companies are “not otherwise subject to foreign jurisdiction.”[19] The fact sheet warned that these regimes were adopted to “raise revenue for their own government spending” and could result in collection of “billions” from U.S. companies.”[20]

President Trump has since directed the USTR to renew and expand DST-related investigations.[21] This includes renewed review of the DSTs imposed by “France, Austria, Italy, Spain, Turkey, and the United Kingdom[,]” and authorization to investigate any additional country that uses a DST to discriminate against U.S. companies.[22] In a significant policy expansion, President Trump further directed USTR to “investigate whether any act, policy, or practice of any country in the European Union or the United Kingdom has the effect of requiring or incentivizing the use or development of United States companies’ products or services in ways that undermine freedom of speech and political engagement[.]”[23] The Administration stated it would review measures that “incentivize[] U.S. companies to develop or use products and technology that undermine free speech or foster censorship.”[24] A White House fact sheet identified the EU’s Digital Market Act (DMA) and Digital Services Act (DSA) as policies that “will face scrutiny.”[25]

The EU has described the DSA as a framework to “regulate[] online intermediaries and platforms[,]” with the goal of preventing “illegal and harmful activities online and the spread of disinformation.”[26] U.S. policymakers, however, have expressed concern that these measures may pressure U.S. technology companies to restrict speech.[27] The DSA “departs from centuries-old principles of free speech that serve as the foundation of modern-day liberal democracies.”[28]

As Section 301 evolves to reach beyond traditional trade interests and into the governance of digital expression, it demonstrates that trade law can serve as a vehicle for protecting free speech in the global digital economy.

[1] 19 U.S.C. § 2411(b).

[2] Danielle M. Trachtenberg, Section 301 of the Trade Act of 1974, Cong. Rsch. Serv. (Sept. 30, 2025), https://www.congress.gov/crs-product/IF11346..

[3] Id.

[4] Id.

[5] Initiation of Section 301 Investigation; Hearing; and Request for Public Comments: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 82 Fed. Reg. 40,213 40,213 (Aug. 24, 2017); Addressing China’s Laws, Policies, Practices, and Actions Related to Intellectual Property, Innovation, and Technology, 82 Fed. Reg. 39,007, 39,007 (Aug. 17, 2017).

[6] off. of the u.s. trade representative, exec. off. of the president, findings of the investigation into china’s acts, policies, and practices related to the technology transfer, intellectual property, and innovation under section 301 of the trade act of 1974 (2018).

[7] In re Section 301 Cases, 570 F. Supp. 3d 1306, 1318 (Ct. Int’l Trade 2022).

[8] Id. at 1335.

[9] Id.

[10] See In re Section 301 Cases, 628 F. Supp. 3d 1235 (Ct. Int’l Trade 2023).

[11] Danielle M. Trachtenberg, supra note 2.

[12] Id.

[13] Id.

[14] USTR Announces, and Immediately Suspends, Tariffs in Section 301 Digital Services Taxes Investigations, Office of the United States Trade Representative (June 2, 2021), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/june/ustr-announces-and-immediately-suspends-tariffs-section-301-digital-services-taxes-investigations; Danielle M. Trachtenberg, supra note 2.

[15] Id.

[16] Id.

[17] Danielle M. Trachtenberg, supra note 2.

[18] Elke Asen, FAQ on Digital Services Taxes and the OECD’s BEPS Project, Tax Found. (Jan. 30, 2020), https://taxfoundation.org/blog/oecd-beps-digital-tax/.

[19] Fact Sheet: President Donald J. Trump Issues Directive to Prevent the Unfair Exploitation of American Innovation, The White House (Feb. 21, 2025), https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-issues-directive-to-prevent-the-unfair-exploitation-of-american-innovation/.

[20] Id.

[21] Defending American Companies and Innovators from Overseas Extortion and Unfair Fines and Penalties, 90 Fed. Reg. 10,685, 10,686 (Feb. 21, 2025).

[22] Id; Fact Sheet: President Donald J. Trump Issues Directive to Prevent the Unfair Exploitation of American Innovation, The White House (Feb. 21, 2025), https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-issues-directive-to-prevent-the-unfair-exploitation-of-american-innovation/.

[23] Defending American Companies, supra note 21.

[24] Fact Sheet, supra note 19.

[25] Id.

[26]  The Digital Services Act, Eur. Comm’n, https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_en (last visited Oct. 31, 2025).

[27] House Judiciary Committee, Foreign Censorship Threat: How The European Union Digital Services Act Compels Global Censorship and Infringes on American Free Speech (July 25, 2025), https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/2025-07/DSA_Report%26Appendix%2807.25.25%29.pdf.

[28] Id.