|5 Va. J.L. & Tech. 2 (2000)
1522-1687 / © 2000 Virginia Journal of Law and Technology Association
VIRGINIA JOURNAL of LAW and TECHNOLOGY
Intellectual Trespass in the Global Marketplace:
Encryption & Privacy in E-Commerce
David Bender [*]
Danice M. Kowalczyk [**]
[*] Counsel, White & Case, New York, N.Y.
[**] Associate, White & Case, New York, N.Y.
 Diane M. Istran, Electronic Commerce - The Web of Legal and Business Relationships, in FROM BITS AND BYTES TO CYBERSPACE, Advanced International Retreat, Computer Law Association (Oct. 22-23, 1998). See also Jiri Weiss, 10 Questions on E-Commerce (Aug. 31, 1999) <http://builder.cnet.com/Business/Ecommerce20/>.
 Editorial, Growing Pains of the Internet Age, BUSINESS WEEK, Oct. 4, 1999, at 250.
 Shawn Willett, International E-commerce Faces Obstacles (Jan.12, 1999) <http:/www.foxnews.com/>.
 THE INTERNET AND BUSINESS: A LAWYERS GUIDE TO THE EMERGING LEGAL ISSUES, Computer Law Association, Current Issues Publications Series, at 44 (1996).
 Ian C. Ballon, The Emerging Law of the Internet, in PRACTISING LAW INSTITUTE 19TH ANNUAL INSTITUTE ON COMPUTER LAW (1999) (limited areas of protection, for example, have been tax returns, personal financial data, medical records and childrens privacy). See also Ron N. Dreben, Morgan, Lewis & Bockius, LLP, Legal Issues and the Electronic Storefront, in GEORGETOWN UNIVERSITY LAW CENTER CONTINUING LEGAL EDUCATION, Advanced Computer Law Institute (Mar. 11-12, 1999).
 The Third, Fourth, Fifth, Ninth, and Fourteenth Amendments have also been noted as providing individuals with some Constitutional privacy protections. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
 Sandra Byrd Petersen, Your Life as an Open Book: Has Technology Rendered Personal Privacy Virtually Obsolete?, 48 FED. COMM. L.J. 163, 172 (1995).
 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. LAW REV. 193, 195 (1890).
 William L. Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960). This categorization of torts was later adopted by the Restatement (Second) of Torts. See RESTATEMENT (SECOND) OF TORTS § 652A (1977).
 5 U.S.C. § 552a (1994 & Supp. III 1997). The Privacy Act provides protective guidelines for federal agencies involved in the collection and storage of personal data in government records, as well as any subsequent dissemination of such information.
 5 U.S.C. § 552 (1994 & Supp. III 1997). The Freedom of Information Act allows individuals to access Federal agency records. However, the public cannot obtain, inter alia, an individuals personnel and medical files and/or law enforcement records. See 5 U.S.C. § 552(b)(6).
 12 U.S.C. § § 3401-3422 (1994). The Right to Financial Privacy Act was designed to protect bank customers right to privacy in relation to their financial records kept by financial institutions with which they do business.
 18 U.S.C. § § 2510-2522, 2701-2709, 3121-3127 (1994 & Supp. III 1997). The ECPA protects private electronic communications from unauthorized access, interception or disclosure.
 15 U.S.C. § 1693b (1997). The EFTA requires financial institutions offering electronic fund transfer services to provide their customers with advance notice of the institutions given privacy policies. It further requires those institutions to advise customers of any circumstances under which information about the customers accounts may be released to third parties.
 15 U.S.C. § § 1681-1681u (1994 & Supp. III 1997). The FRCA lists guidelines for credit reporting agencies regarding the dissemination of personal information where individual consent has not been obtained.
 47 U.S.C. § 2710-2711 (1994). The VPPA regulates disclosure of consumer videotape rental records.
 47 U.S.C. 551 § (1994). The CCPA governs the collection, use and disclosure of customer identification data by cable television service providers.
 18 U.S.C. § 2721 (1994 & Supp. II 1997). The DPPA limits the access and dissemination of personal information held by a states department of motor vehicles.
 15 U.S.C. 6501 (et seq.). See also 11 Fed. Reg. 59,888 (1999) (to be codified at 16 C.F.R. pt. 312). The COPPA, which will become effective April 21, 2000, is aimed at prohibiting unfair and deceptive acts involving the collection and use on the Internet of personal information from and about children.
 See, e.g., Alaska Const. art. I, § 22 (1999); Ariz. Const. art. II, § 8 (1999); Cal. Const. art. I, § 1 (1998); Fla. Const. art. I, § 23 (1998); Haw. Const. art. I, § 6 (1998); and Mont. Const. art. II, § 10 (1999).
 See, e.g., ALA. CODE 1975 § 13A-11-30 (1999); See also N.Y. PENAL LAW § 250.00 (McKinney 1999) (eavesdropping); William C. Donnino, McKinney Practice Commentary, PL § 250.05 (1989) (eavesdropping); N.Y. GEN. BUS. LAW § 395-b (McKinney 1999) (video surveillance); N.Y. LAB. LAW § 201-a (McKinney 1999) (fingerprinting); N.Y. EXEC. LAW § 296(19) (McKinney 1999) (genetic privacy); and N.Y. CIV. RIGHTS LAW § § 50-51 (McKinney 1999) (proscribing use of persons name, portrait or picture for advertising or trade purposes without permission and providing a cause of action for invasion of a persons right to privacy). See also N.J. STAT. ANN. § 2A:156A-1 et seq. (1999) (dealing with a partys privacy interest in his or her electronic communications/documents).
 See Cal. Const. art. I, § 1 (amended 1972). See also CAL. CIV. CODE § 1798.1 (West 1998).
 See supra note 7, at 183.
 See, e.g., ME. REV. STAT. ANN. 17-A § 432-433 (1999); KAN. STAT. ANN § 21-4002 (1998); GA. CODE. ANN. § 16-9-93 (1999); VA. CODE § 18.2-152.5 (1999); W. VA. CODE § 61-3C-2 and 61-3C-12 (1999).
 See, e.g., FLA. STAT. ANN. § 540-08 (West 1988); MISS. CODE ANN. § 35-7-49 (1999); NEB. REV. STAT. § 20-202, 20-204 (1999); WASH. REV. CODE ANN. § 46.12.380 (West 1987 & Supp. 1995). See also N.Y. GEN. BUS. LAW Ch. 20, Art. 32, added by L. 1993, c. 457 (Video Consumer Privacy Act) (1999).
 See, e.g., CAL. CIV. CODE § § 1785.1, 1785.32, 1786, 1786.52 (West 1998); MD. CODE ANN., COM. LAW II § 14-1207 (1990 & Supp. 1994); MASS. ANN. LAWS ch. 93 § 105 (Law. Co-op. 1999); MONT. CODE ANN.§ 31-3-101 (1999); N.H. REV. STAT. ANN. § § 359-B:2 to :21 (1998); WASH. REV. CODE § 19.182.005-902 (1999).
 Massachusetts Privacy bill, "An Act Relative to a Consumers Right to Privacy," House No. 4483, § 39 (Mass. 1999).
 See, e.g., CONN. GEN. STAT. § 53-422 (1999); D.C. CODE ANN. § 43-1845 (1998).
 Industry has avoided government intervention through development of criteria for online privacy policies, education of public and private sectors, development of punishment systems for violations, and the creation of watchdog groups. Thomas C. Dabney, Associate General Counsel, America Online, Inc., Allocating the E-Commerce Risks of Buyers and Sellers, in GEORGETOWN UNIVERSITY LAW CENTER CONTINUING LEGAL EDUCATION, Advanced Computer Law Institute (Mar. 11-12, 1999).
 Elizabeth Wasserman, A New Year Brings Talk of New Net Rules (Jan. 6, 1999) <http://CNN.com/TECH/>. The Clinton administration encourages the Internet industry to develop voluntary guidelines to protect personal data.
 Margaret Jane Radin & Daniel L. Appelman, Doing Business in the Digital Era: Some Basic Issues, 570 PLI/PAT 51, at 64 (Aug/Sept. 1999). The World Wide Web Consortium has also developed the draft Platform for Privacy Preference ("P3P"), a protocol for implementing self-enforcing privacy policies for Web sites. Id. The World Wide Web Consortium ("W3C") is an industry standards group comprising more than 200 businesses and academic institutions. The recently released version of the P3P draft is a work in progress, scheduled to become final in April of 2000. See Mo Krochmal, W3C Releases Last Privacy-Standard Draft, TECH WEB (Nov. 5, 1999) <http://www.techweb.com/wire/story/TWB19991105S0018>.
 While several private sector groups have been formed (e.g., TRUSTe, Online Privacy Alliance, and EPIC) to monitor industrys attempts at establishing in-house privacy protections, these groups are often comprised of industry, as opposed to consumer-interest, groups. As a result, concern exists that consumers desires for stringent privacy protections are being sacrificed in the interest of industrys desire for the new currency of information.
 Elinor Mills, U.S. Data Privacy Guidelines Released, The Industry Standard (Apr. 20, 1999) < http://www.thestandard.com/>.
 Neal J. Friedman, The Legal Challenge of the Global Information Infrastructure, CYBERSPACE LAWYER, Vol. 2, No. 10, at 8 (Jan. 1998). See also Ian C. Ballon, The Emerging Law of the Internet, in PRACTISING LAW INSTITUTE, 19TH ANNUAL INSTITUTE ON COMPUTER LAW, at 298 (1999).
 Ron N. Dreben, Legal Issues and the Electronic Storefront, in GEORGETOWN UNIVERSITY LAW CENTER CONTINUING LEGAL EDUCATION, Advanced Computer Law Institute, at 3 (Mar. 11-12, 1999).
 Elinor Mills, U.S. Data Privacy Guidelines Released, The Industry Standard (Apr. 20, 1999) <http://www.thestandard.com>. See also Reuters, U.S., Europe Battle Over Data Privacy, Inter@ctive Week Online (Sep. 20, 1999) <http://www4.zdnet.com/intweek/ stories/news/>.
 See Rosario Imperiali, The Status and Challenges of Information Technology Practice in Mediterranean Area Countries and Worldwide, Transborder Data Flows: USA and EU Confrontation, at 3, 8 (Jun. 10-11, 1999) (on file with author). While negotiations are in progress, E.U. members agreed not to initiate any enforcement action against noncompliant U.S. companies so as not to inhibit trade.
 Reuters, U.S., Europe Battle Over Data Privacy, Inter@ctive Week Online, (Sep. 20, 1999) <http://www4.zdnet.com/intweek/stories/news/>. The principles in discussion would put a much heavier emphasis on self regulation within a tougher U.S. legal framework.
 The principles are designed to serve as guidance to U.S. organizations seeking to qualify for both safe harbor status as well as the presumption of "adequacy" (to meet E.U. concerns) it creates. Such principles, which are still in draft form, deal with the areas of notice, choice, onward transfer, security, data integrity, access and enforcement. See Domingo R. Tan, Personal Privacy in the Information Age: Comparison of Internet Data Protection Regulations in the United States and the European Union, 21 LOY. L.A. INTL & COMP. L.J. 661, at 682 (Aug. 1999).
 James Glave, Safe Harbor: No Port in a Storm?, <http://www.wired.com>.
 David H. Kramer, eCommerce: Strategies for Success in the Digital Economy, 570 PLI/PAT 1093, at 1103 (Aug./Sept. 1999).
 In October, 1999 the U.S. and EU engaged in discussions which involved moving away from a self-regulatory scheme and toward U.S.-led enforcement of data protection (with U.S. courts playing an active role). 13 WORLD INTELL. PROP. REP. (Dec. 1999); see also Owen D. Kurtin & Beth Simone Noveck, Financial Community Fixes on Online Data Privacy, NAT'L L.J., Jan. 24, 2000, at C12.
 See Rosario Imperiali, The Status and Challenges of Information Technology Practice in Mediterranean Area Countries and Worldwide, Transborder Data Flows: USA and EU Confrontation, at 8 (Jun. 10-11, 1999) (on file with author).
 The U.S. Department of Commerce recently issued a revised draft of the International Safe Harbor Principles dated November 15, 1999. Comments to such draft had a deadline date of December 3, 1999. A March, 2000 resolution is planned.
 Michael J. Mandel, The Internet Economy: The Worlds Next Growth Engine, BUSINESS WEEK, Oct. 4, 1999, at 72.
 See supra note 1.
 Editorial, Growing Pains of the Internet Age, BUSINESS WEEK, Oct. 4, 1999, at 250.
 See <http://www.privacyalliance.org/>. The Online Privacy Alliance is based in Washington and is supported by some of the most influential names on the Web. Other privacy advocates, such as the Electronic Privacy Information Center ("EPIC"), met September 16, 1999 in Hong Kong to chart a course for the 21st Century, releasing "Privacy and Human Rights 1999: An International Survey of Privacy Laws and Developments." EPIC and other conference attendees support strong privacy protections and continued vigilance against privacy violations. See <http:www.epic.org/events/privacyagenda/ press_release.html>. Another private sector privacy monitor achieving success with increased membership is nonprofit Palo Alto based TrustE which mandates that members agree to a set of privacy principles. TrustE is the Internet industrys leading privacy seal program supporter.
 Cyberspace: Who Will Make the Rules?, BUSINESS WEEK, Mar. 22, 1999, at 30D.
 Editorial, Growing Pains of the Internet Age, BUSINESS WEEK, Oct. 4, 1999, at 250.
 THE INTERNET AND BUSINESS: A LAWYERS GUIDE TO THE EMERGING LEGAL ISSUES, Computer Law Association, Current Issues Publications Series, at 45 (1996).
 Marcia Stepanek, Protecting E-Privacy: Washington Must Step In, BUSINESS WEEK, July 26, 1999, at EB 30.
 GBDe was launched in early 1999 and is composed of business leaders from more than 200 companies, including several leaders in media, software, telecom and banking. In September, 1999 a meeting was held amongst members in Paris to make a joint call for industry-lead regulation for E-commerce. GBDes privacy protection suggestions included strengthening self-regulation and a digital "trustmark" for accredited sites, which did not garner support from the European attendees.
 The Electronic Commerce & Consumer Protection Group was formed in early September, 1999 of six large Internet companies joining forces to promote uniform global E-commerce laws. Chet Dembeck, Who Are the Big E-Commerce Players Really Watching Out For?, E-Commerce Times, <http:\\www.ecommercetimes.com>.
 Kenneth Neil Cukier, Global Business Group Seeks New E-Commerce Order, <http://www.herring.com/>.
 Stephen H. Wildstrom, A Big Boost for Net Privacy, BUSINESS WEEK, Apr. 5, 1999, at 23.
 The United States, which continues to dominate the Internet, is expected to reap half of such long-term benefits. See Michael J. Mandel, The Internet Economy: The Worlds Next Growth Engine, Oct. 4, 1999, pg. 74. Business to business E-commerce is expected to grow from a $43 billion industry today to a $1.3 trillion industry by 2003. Matthew W. Beale, CyberTrust OK to Export Crypto Worldwide, E-COMMERCE TIMES, Sep. 27, 1999, <http://www.ecommercetimes.com/>.
 Encryption is the process of converting data into a form that is meant to be incomprehensible to all except authorized recipients. PRACTISING LAW INSTITUTE 19TH ANNUAL INSTITUTE ON COMPUTER LAW, at 110 (1999). See also Edward J. Radlo, Legal Issues in Cryptography, at 41 in J.T. Westermeier, General Law Update Part 2 (Legal Ethics and the Net, UCC Article 2B, Encryption & New Computer Cases), in WORLD COMPUTER LAW CONGRESS AND THE 1997 COMPUTER AND TELECOMMUNICATIONS LAW UPDATE, Computer Law Association (1997).
 Cryptography is the more general concept, including not only encryption but also authentication. Related topics include key certification, key management, key escrow and key infrastructure.
 Neal J. Friedman, The Legal Challenge of the Global Information Infrastructure, CYBERSPACE LAWYER, Vol. 2, No. 10, at 10 (Jan. 1998).
 Id. Those entities commonly granted an exception to the mandatory key escrow provision were certain banks and other financial institutions.
 Govt Official Admits Current Govt Crypto Policy a Failure, CYBERSPACE LAWYER,Vol. 3, No. 3, at 30 (May 1998).
 Doug Brown & Diane Frank, White House Shifts Encryption Strategy, FEDERAL COMPUTER WEEK (Sep. 20, 1999) <http://www.fcw.com/>. See also Jack McCarthy, Crypto Export Rules Eased (Sep. 16, 1999) <http://wwwthestandard.com/>.
 These actions are part of a plan entitled "Preserving Americas Privacy and Security in the Next Century: A Strategy for America in Cyberspace" which has been created by the Defense, Justice and Commerce Departments along with the Office of Management and Budget. Doug Brown & Diane Frank, White House Shifts Encryption Strategy, FEDERAL COMPUTER WEEK (Sep. 20, 1999) <http://www.fcw.com/>.
 Transcript of White House Press Briefing, Secretary Daley (Sep. 16, 1999) <http://www.epic.org/crypto/legislation/cesa/briefing.html>. See also White House Press Release, Office of Press Secretary, Sep. 16, 1999.
 The retail products and/or software discussed are those that do not require substantial support, are sold in tangible form, or have been specifically designed for individual customer use. Id.
 An Agreement among thirty-three countries with common controls and exports.
 Transcript of White House Press Briefing, Secretary Daley (Sep. 16, 1999) <http://www.epic.org/crypto/legislation/cesa/briefing.html>. See also Clinton Administration Talks About Encryption, TECH LAW JOURNAL (Sep. 17, 1999) <http://www.techlawjournal.com/encrypt/19990917a.htm>.
 Transcript of White House Press Briefing, Secretary Daley (Sep. 16, 1999) <http://www.epic.org/crypto/legislation/cesa/briefing.html>.
 For example, the "retail encryption commodities and software" category was created. Goods falling into this category can now be exported to any end user, except one of the previously listed seven nations. These products "are those which are widely available and can be exported and reexported to anyone (including any Internet and telecommunications service provider), and can be used to provide any product or service (including e-commerce, client-server applications, or software subscriptions)." Commerce Department Releases Encryption Export Regulations, TECH LAW JOURNAL (Jan. 13, 2000) <http://www.techlawjournal.com/encrypt/20000113.htm>.
 U.S. DEPARTMENT OF COMMERCE, COMMERCE ANNOUNCES STREAMLINED ENCRYPTION EXPORT REGULATIONS (Jan. 12, 2000) (available at <http://188.8.131.52/public.nsf/docs/60D6B47456BB389F852568640078B6C0>.
 Commerce Revises Encryption Export Rules for January Implementation, 4 BNA ELECTRONIC COMMERCE & LAW REPORT No. 48 (December 22, 1999). Telecommunications and Internet service providers can further obtain and use any encryption product under this license exception to supply encryption services for the general public. Provision of government services, however, still requires a license. Commerce Department Releases Encryption Export Regulations, supra note 72.
 Once again, these new regulations are subject to review for 120 days, with a final revised rule issuing shortly thereafter. For a more detailed discussion of the newly released regulations, see U.S. DEPARTMENT OF COMMERCE, supra note 73; Commerce Department Releases Encryption Export Regulations, supra note 72.
 Per usual, CESA will not address domestic use and sale of encryption, which remains unregulated. See U.S. Relaxes Export Restrictions, E-COMMERCE NEWS (Sep. 17, 1999) <http://sellitontheweb.com/ezine/news0136.shtml>. See also Transcript of White House Press Briefing, Attorney General Janet Reno (Sep. 16, 1999) (available at <http://www.epic.org/crypto/legislation/cesa/briefing.html>). The Clinton administration is also scheduled to give $500 million to the Defense Department over the next few years to enhance information security practices. David M. Nadler & Valerie M. Furman, Administration Relaxes Restrictions on Encryption Software, MONDAQ BUSINESS BRIEFING, 2000 WL 9237976 (Feb. 7, 2000).
 A similarly controversial act is the Communications Assistance for Law Enforcement Act ("CALEA") of 1994 which requires the telecommunications industry to design its systems in compliance with FBI technical requirements to facilitate electronic surveillance. Recent FCC rulings regarding the CASEA would enable the FBI to track the physical locations of cellular phone users and monitor Internet traffic. On November 18, 1999, both the ACLU and EPIC initiated a court challenge to CALEA saying the FCC decision threatens communications privacy. See <http://www.epic.org/privacy/wiretap/calea/release_11_18_99.html>.
 Transcript of White House Press Briefing, Attorney General Janet Reno (Sep. 16, 1999) <http://www.epic.org/crypto/legislation/cesa/briefing.html>.
 Authored by Congressman Bob Goodlatte (R-Va) and Zoe Lofgren (D-Calif.). Following the September 16, 1999 Clinton administration statement concerning its loosening of export regulations, Congressman Goodlatte stated his belief that SAFE (H.R. 850) is alive and wellespecially "in light of the details lacking in the Clinton plan." Administration Addresses Encryption Reform Proposal, TECHNOLOGY LAW JOURNAL, <http://www.techlawjournal.com/>. The status of the Promote Reliable Online Transactions to Encourage Commerce and Trade Act ("PROTECT"), which did not go as far as SAFE, sponsored by Senator John McCain and Senator Conrad Burn remains uncertain.
 Transcript of White House Press Briefing, Deputy Secretary of Defense John Hamre (Sep. 16, 1999) (available at <http://www.epic.org/crypto/legislation/cesa/briefing.html>. Deputy Secretary of Defense John Hamre stated that SAFE would essentially allow the exportation of "anything of national security interest without any surveillance at all." As of November 12, 1999, the Clinton administration remains opposed to the passage of the Security and Freedom through Encryption Act. See Representatives Caution Clinton About Encryption Export Regulations, TECH LAW JOURNAL (Nov. 12, 1999) <http://www.techlawjournal.com/encrypt/19991112.htm>. Following release of the new encryption regulations on January 12, 2000, Rep. Goodlatte advised that "the House remains ready to take up H.R. 850 if the regulations do not allow American companies to fully compete in the global marketplace." See Commerce Department Releases Encryption Export Regulations, supra note 72.
 Kathleen Ellis, Encryption Exports: Small Step forward, Big Step Back, <http://www.slashdot.org/>.
 Ted Bridis, The Associate Press, A Small Step. Encryption Export Rules Relaxed, <http://www.abcnews.go.com/>.
 176 F.3d 1132 (9th Cir. 1999).
 PRACTISING LAW INSTITUTE 19TH ANNUAL INSTITUTE ON COMPUTER LAW, at 287 (1999).
 192 F.3d 1308 (9th Cir. 1999).
 Michael J. Mandel, The Internet Economy: The Worlds Next Growth Engine, BUSINESS WEEK, (Oct. 4, 1999), at 76.
 Neal J. Friedman, The Legal Challenge of the Global Information Infrastructure, CYBERSPACE LAWYER, Vol. 2, No. 10, at 8 (Jan., 1998).
 Id. at 9.
David Bender is Of Counsel at White & Case, L.L.P. in New York. An intellectual property attorney with a concentration in computer software and services, Mr. Bender has extensive experience in contracting, litigation and counseling. He negotiates and drafts all types of agreements relating to computer software and hardware, litigates computer-related disputes and directs intellectual property due diligence investigations. Mr. Bender is the author of Computer Law: Software Protection and Litigation, a three-volume treatise, and of a number of law review articles on topics relating to computer, intellectual property and antitrust law. He has published numerous papers in conference handbooks and has been a guest speaker at many seminars in the United States and abroad. Mr. Bender, a registered U.S. patent attorney, has represented a variety of corporations in the area of computer software and services. Over the past 10 years, he has drafted and supervised approximately 200 computer software and service agreements of all types and degrees of complexity. Before joining White & Case, Mr. Bender was General Attorney, Intellectual Property Litigation, for AT&T. Prior to that, he was in private practice.
|I take it that under this proposal, the applicable sales tax would be determined by the purchaser's location. A major loophole seems to be that whether a merchant is subject to the tax requirement depends on his own location, at least until the international community arrives at a concensus on sales tax, the likes of which the world has never seen. It seems therefore that moving an e-sales company (some combination of its servers, its place of incorporation, its principle place of business) just outside of the U.S. would allow that service's users to get a no-tax discount.|
|I concur with Mr. Gatewood. The imposition of sales tax on Internet transactions creates an incentive to relocate e-businesses outside of the U.S.. This effect is not felt with ordinary sales taxes because it is not cost effective for consumers to go elsewhere to aviod the tax. However, because the Internet is a truly global medium, consumers can shop anywhere they want without additional effort. Therefore, as long as the e-business is located in a place where shipping costs are similar to U.S. locations, it can effectively offer customers a discount. One way to avoid this effect is to impose a tariff on imports. However, this just creates new problems because such a tariff would conflict with our international trade obligations (NAFTA, GATT, etc.).|