Even as the Trump administration is cheerleading congressional efforts to roll back protections for free speech online, it’s enshrining those same protections in two new trade deals.
That has irked members of both parties on Capitol Hill, as lawmakers mull a possible rewrite of longstanding liability protections for online platforms and consider whether to approve President Donald Trump’s new trade deals with Canada and Mexico and with Japan. But this is a situation that inverts the usual relationship between Congress and the current administration when it comes to trade. This time, the White House is doing what’s right.
Specifically, members of Congress are upset that the new United States–Mexico–Canada Agreement (USMCA)—an update of the 25-year-old North American Free Trade Agreement (NAFTA)—as well as the just-announced deal between the U.S. and Japan will include provisions shielding tech companies from liability for content. Though it’s not a simple copy/paste, the trade deals effectively duplicate the promise made by Section 230 of the Communications Decency Act, a 1996 law that protects online speech by freeing platforms from liability for user-created content.
Section 230 is the internet’s First Amendment. Putting that language into trade deals helps ensure that a free and open internet is the global standard. “These laws prevent websites from being sued for their users’ content, and they are fundamental to the United States’ preeminence in the digital space,” says Clark Packard, trade policy counsel for the R Street Institute.
Protecting online speech isn’t just about maintaining Enlightenment values in a digital world. It’s also good for business. The U.S. Bureau of Economic Analysis estimates that the digital economy accounts for about 6.5 percent of America’s gross domestic product (about $1.3 trillion), a figure that has been growing steadily for years. By signing trade agreements that prohibit governments from raising barriers to digital trade or imposing expensive liability requirements on digital platforms, America is helping to ensure that growth continues.
Including Section 230 language in trade deals is also an important move in a long-term battle over the global internet.
America got to write the rules for the first few generations of the online world because it was the most connected country and the home of most major tech firms. Those things are still true, but less so. And competing visions for the rules that govern the internet are already well-established. The European Union is building a legal framework that differs from the “free and open” model established by Section 230—one that includes more stringent regulations for digital platforms and how they relate to users. And there is nothing free or open about China’s ideal online space.
Those differing legal frameworks for the digital world are going to clash with one another. In that environment, binding together governments to protect free speech online makes a lot of sense. (Would that Trump would apply that lesson to other aspects of trade.)
But some members of Congress are intent on carving up Section 230, in a misguided attempt at holding tech platforms like Google and Facebook accountable. And they don’t see it that way. Rep. Frank Pallone (D–N.J.), chairman of the House Energy and Commerce Committee, said during this week’s Section 230 hearing that Trump is unlikely to get support from Congress for trade deals that include provisions subject to ongoing congressional debate.
Those objections are intellectually dishonest, says Ashkhen Kazaryan, a legal fellow at Tech Freedom, a pro-Section 230 nonprofit. Including liability protections in trade deals “does not mean that congressional hands are tied in addressing the issues surrounding content moderation and platform liability.”
Congress frequently debates or rewrites domestic laws that are similar to provisions included in trade deals. Having intellectual property protections written into NAFTA, for example, has not stopped Congress from adjusting copyright laws in America, as Katherine Oyama, director of intellectual property policy for Google, told lawmakers at the hearing.
Congress does, of course, have the power to change laws whenever it wants. But scrapping or rewriting Section 230 would be a mistake, and Trump is right to push for liability protections in trade deals—especially while Section 230 is the law of the land in America.
Not that Trump likely has much to do with it. When he talks about the USMCA, he rarely if ever mentions the need for updated digital rights agreements. Mostly, he’s been interested in raising tariffs on imported cars or pinning political blame for the loss of American manufacturing jobs. And while the president isn’t leading the charge on Capitol Hill to rewrite or abolish Section 230, he’s certainly been supportive of the effort.
Also, it’s not as if the Trump administration overcame any dramatic hurdles to have those provisions included the NAFTA rewrite or the Japananese trade deal. The other three countries involved in those agreements were already abiding by American standards for online trade, so the deals mostly just codified the status quo.
But when even the most anti-trade administration in recent American history is pushing to make it easier for America to export its successful legal framework for online free speech, that should give you an idea about just how off-base the congressional effort to scrap Section 230 really is.
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