Congress

‘A real gift to Big Tech’: Both parties object to immunity provision in USMCA

Section 230 of the Communications Decency Act hotly debated on the Hill this year

A chapter of the trade agreement based on Section 230 of the Communications Decency Act gives companies like Facebook, Google and Twitter immunity from liability for user content posted on their sites. (Jakub Porzycki/NurPhoto via Getty Images)

Technology companies scored a win last week when provisions giving them broad immunity from lawsuits over third-party content on their platforms were included in a draft trade agreement with Canada and Mexico despite staunch opposition from both Democrats and Republicans.

The inclusion of the provisions in the proposed trade agreement is notable because the 1996 law on which they’re based has been the topic of heated debate on Capitol Hill this year, with prominent members of both parties arguing that the United States should not set up protections for technology companies operating abroad when those protections at home could be altered or done away with by Congress in the near future.

Speaker Nancy Pelosi and some of her top deputies, along with Republicans like Sen. Ted Cruz of Texas, had lobbied for the provisions to be pulled from the agreement, which was announced in principle last week but will have to be ratified by Congress before it takes effect.

In question is a chapter of the trade agreement based on Section 230 of the Communications Decency Act, which gives companies like Facebook, Google and Twitter immunity from liability for user content posted on their sites. Since its creation, Section 230 has been credited with fostering massive growth of the U.S. technology sector and enabling freedom of expression online.

But lately, the law has come under scrutiny for allowing platforms significant cover for hosting political disinformation or violent content, and for effectively leaving it up to the platforms to police themselves, which has renewed interest among lawmakers in changing Section 230 or getting rid of it entirely.

But it remains unclear how the inclusion of third-party content provisions in the new North American trade agreement and a separate trade deal struck with Japan in September would affect a domestic debate over changes to Section 230. Representatives for the technology industry say including the protections is a necessary step toward giving U.S. companies operating in foreign countries legal certainty.

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“U.S. exporters and well-paid American coding and programming jobs depend on having legal certainty abroad regarding liability,” said Joe Whitlock, the director of policy at BSA | The Software Alliance, an industry group that counts Apple, Microsoft and Intel among its members.

“Having a principle enshrined, that those companies will not be held liable for content over which they have no direct control, is useful and important,” Whitlock said.

But Silicon Valley’s critics view the trade deals as an effort by the technology industry to solidify U.S. law by exporting it around the globe.

“This is just their attempt to pour concrete around Section 230,” said Matthew Stoller, a fellow at the Open Markets Institute.

Jeff Kosseff, a law professor at the U.S. Naval Academy and author of a book about Section 230, “The 26 Words That Created The Internet,” said Congress is still free to make changes to the law despite it finding its way into the trade agreements.

“Given the bipartisan backlash to Section 230, I was surprised this provision wasn’t removed,” Kosseff told CQ Roll Call. “It shows there’s definitely still support for it but I don’t think this means it’s safe by any means.”

Anticipating potential changes to Section 230, Whitlock said negotiators “took pains” to make sure the language in the trade agreements “fit well within the bounds of U.S. law.”

“It was very carefully drafted in light of the current discussions happening around Section 230,” he said.

Bipartisan opposition

Pelosi, who earlier this year said Section 230 “could be removed” if companies don’t take more responsibility for content posted on their platforms, had lobbied to pull the mirrored language from the trade agreements in the weeks leading up to last week’s announcement.

At a news conference Dec. 10, Pelosi said she found out the provisions were still in the draft of the North American agreement after she had made a commitment to the Trump administration not to alter her negotiating terms.

“It is a real gift to Big Tech,” Pelosi said, adding that including the protections was, “in my view, the wrong way to go.”

Pelosi’s efforts had been cheered on by Cruz, who said on Twitter that while he rarely agrees with the speaker, “Congress should NOT be passing special protections — statutory giveaways — for Big Tech.”

Cruz said as much to U.S. Trade Representative Robert Lighthizer in a letter in early November, arguing that trade deals struck by the administration should reflect “settled American law, values, and customs,” and “should not contain provisions that are the subject of ongoing debate.”

“With members of both the Senate and House of Representatives seriously considering whether to amend or eliminate Section 230's grant of immunity because Big Tech is not living up to its end of the legislative bargain, I believe that enshrining it in our trade agreements would be a mistake,” Cruz wrote.

Similar concerns have been expressed by House Energy and Commerce Chairman Frank Pallone Jr. of New Jersey and Republican Rep. Greg Walden of Oregon, the panel’s ranking member. In a letter to Lighthizer in August, Pallone and Walden called it “inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing.”

Muddled path forward

But for all the discontent over Section 230 and the inclusion of similar provisions in the trade deals with Mexico, Canada and Japan, it’s likely that legislative action affecting Section 230 remains far off, primarily because Democrats and Republicans have differing gripes with the law.

Republicans such as Cruz and Sen. Josh Hawley of Missouri have accused platforms of moderating content in a way that censors conservative viewpoints. Democrats, on the other hand, say the platforms aren’t doing enough to monitor hate speech and stop the spread of outright lies and disinformation.

It’s also unclear whether the inclusion of protections for technology companies in the new U.S.-Mexico-Canada trade agreement would have any real effect on its chances of getting across the finish line after House Democrats and the Trump administration reached a compromise on the pact, which would replace the 1994 North American Free Trade Agreement. 

Still, lawmakers have made clear their opposition to including policies up for debate in foreign trade deals. After Lighthizer declined to testify at an Energy and Commerce hearing on Section 230 in October, Pallone signaled that including protections for technology companies in foreign trade deals could spell trouble for their chances at ratification.

“Including provisions in trade agreements that are controversial to both Democrats and Republicans is not the way to get support from Congress, obviously,” Pallone said.

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