S-2677-119
Message on Senate action sent to the House.
Sponsored by Chuck Grassley (R-IA)
What it does
This bill would amend Section 628A of the Tariff Act of 1930 to broaden how U.S. Customs and Border Protection (CBP) shares information about suspected intellectual property (IP) violations at the border. It would allow CBP to share nonpublic information — including data obtained from online marketplaces, freight forwarders, express consignment operators, and other shipping intermediaries — with rights holders who have a "reasonable suspicion" of an IP violation. It would also require CBP to notify the rights holder of exactly what nonpublic information was transmitted, and would expand the list of parties who may receive such information to include any party with an interest in the merchandise, as determined by the CBP Commissioner.
Who benefits
U.S. intellectual property rights holders (manufacturers, brands, publishers, software companies, pharmaceutical firms) who would gain access to more detailed trade data to identify counterfeit goods. Domestic industries that compete with counterfeit imports, including apparel, luxury goods, electronics, and pharmaceuticals. Consumers who may benefit from reduced circulation of counterfeit or unsafe goods. Law enforcement and CBP, which would have a clearer legal framework for sharing information with private parties. Small and mid-sized businesses whose brands are frequently counterfeited but who currently lack access to detailed shipment data.
Who is hurt
Importers and sellers — including online marketplace operators and third-party logistics providers — whose nonpublic shipment data could be shared with private rights holders without their consent. Foreign manufacturers and exporters whose business information may be disclosed. Privacy and civil liberties advocates concerned about the sharing of nonpublic commercial data. Importers of legitimate goods who may face increased scrutiny or mistaken IP claims. Online marketplace platforms (e.g., third-party seller ecosystems) that could face increased liability exposure once their data is shared with brand owners pursuing enforcement actions.
Supporters argue
Supporters argue that counterfeiting costs U.S. businesses an estimated $200–250 billion annually and that CBP currently lacks the legal tools to share actionable shipment data with rights holders in a timely way. They contend that expanding information sharing — particularly data from online marketplaces and freight forwarders, which are the primary channels for small-parcel counterfeit shipments — would close a critical enforcement gap identified in the DHS "Combating Trafficking in Counterfeit and Pirated Goods" report (2020). The notification requirement, they argue, adds a meaningful accountability check that protects against misuse of shared data.
Opponents argue
Opponents argue that allowing CBP to share nonpublic commercial data — including information generated by third-party platforms and logistics companies — with private rights holders raises serious due process and privacy concerns, as the affected importers may have no notice or opportunity to contest the disclosure before it occurs. They contend that the bill's broad definition of eligible recipients ("any other party with an interest in the merchandise") gives the CBP Commissioner unchecked discretion to share sensitive trade data, potentially enabling rights holders to use government-obtained information for competitive intelligence rather than legitimate IP enforcement.
Constitutional context
The Foreign Commerce Clause (Art. I, §8, cl. 3) gives Congress broad authority to regulate the importation of goods, including setting rules for how customs agencies handle trade data. No active constitutional tension area is directly implicated, though the bill's delegation of disclosure discretion to the CBP Commissioner could face scrutiny under the post-Loper Bright (2024) framework if agency rules implementing the notification requirement are challenged.
Checks and balances
Congress expands CBP's information-sharing authority; the CBP Commissioner retains discretion over which additional parties receive information; the Secretary of the Treasury prescribes notification regulations; and affected parties may seek judicial review of disclosures under the Administrative Procedure Act.
Historical precedent
Section 628A of the Tariff Act of 1930, which this bill amends, was itself enacted to authorize limited CBP information sharing with IP rights holders; this bill extends that existing framework rather than creating a new one.