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InternationalLawCommentary

Why Trump’s Tech Defense in the EU Is an America First Policy

President Donald Trump shakes hands with President of the European Commission Ursula von der Leyen. (Andrew Harnik/Getty Images)

Joel Thayer is the president of the Digital Progress Institute.

A fundamental principle of international law is comity—the mutual respect sovereign nations afford one another in enforcing their laws.

For the United States, comity is not an abstraction. It is the predicate for stable trade relationships and predictable cross-border enforcement. When that principle erodes, diplomacy becomes nearly impossible.

Comity is central to the U.S. dispute with the European Union over the Digital Services Act and the Digital Markets Act. It is also the basis for the Trump administration’s Section 301 investigation.

Section 301 of the Trade Act of 1974 authorizes the United States Trade Representative to investigate foreign government actions that are “unjustifiable,” “unreasonable,” or “discriminatory” and that burden U.S. commerce.

If such findings are made, the U.S. Trade Representative may respond with tariffs, import restrictions, or the suspension of trade concessions. This authority is not novel. Presidents of both parties have invoked it—President Joe Biden in increasing tariffs on certain Chinese technology imports, and Presidents George H.W. Bush and Bill Clinton in resolving disputes with countries such as Japan.

The question, then, is whether the EU’s digital regulations fall within Section 301’s ambit.

The Digital Services Act raises serious concerns. Like the General Data Protection Regulation before it, the Digital Services Act projects regulatory authority beyond Europe’s borders. It exposes companies—overwhelmingly American—to fines of up to 6% of global annual revenue, subjects them to open-ended “systemic risk” investigations, and prescribes detailed obligations governing content moderation.

When a regulatory framework disproportionately burdens foreign firms and carries penalties tied to global revenue, it strains credulity to describe it as neutral. That is leverage.

To be frank, the Digital Markets Act presents an even clearer case.

Marketed as a tool to promote “fairness” and “contestability,” it relies on quantitative thresholds that initially captured just seven companies. Six are American: Alphabet, Amazon, Apple, Meta, Microsoft, and Booking.com. Only one non-Western company, ByteDance (TikTok), was designated.

This outcome was not accidental—it was by design.

In 2021, Andreas Schwab, the Digital Markets Act’s lead rapporteur, proposed raising the thresholds even further—an amendment analysts at the Center for Strategic and International Studies observed would have kept European-headquartered firms out of the law’s ambit while leaving American companies squarely in scope. That is not conjecture; it is legislative history.

Other jurisdictions have addressed competition concerns in targeted ways—particularly in app store governance—without erecting sweeping structural obligations that conveniently spare domestic champions. By contrast, the Digital Markets Act’s architecture all but guarantees asymmetric impact.

To be frank, this asymmetric lawfare is precisely what is driving U.S. concern. None of this is a defense of large technology companies.

The U.S. brought its own competition and consumer protection cases against many of these firms. But those actions are grounded in neutral statutes and due process protections. We do not draft alleged consumer-protection statutes that just happen to neatly capture foreign competitors while shielding domestic firms.

Indeed, U.S. policy has tended in the opposite direction. The SAFE Web Act encourages cooperation with foreign enforcement authorities. The CLOUD Act formalizes mechanisms for cross-border data access consistent with comity principles. These statutes reflect a commitment to reciprocity and rule-of-law norms.

Reciprocity is not protectionism.

When a trading partner imposes measures that distort trade and impose disproportionate burdens on foreign companies, the affected nation is entitled to examine whether those measures are discriminatory and to respond accordingly.

That is precisely what Section 301 contemplates.

The U.S. has allowed European firms to compete freely within our market. It is reasonable to expect comparable treatment. If that expectation is unmet, a Section 301 investigation is not escalation—it is the enforcement of fair dealing. 

We publish a variety of perspectives. Nothing written here is to be construed as representing the views of The Daily Signal.

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