Lawmakers demanding an end to the liability shield for Big Tech should have thought about that when they enshrined it in the new version of NAFTA.
BY
DAVID DAYEN
JUNE 22, 2020
If you were to ask me to pick the legislation the policy world would be obsessing over in June 2020, during a coronavirus pandemic and persistent anti-racism protests, the Communications Decency Act would not have been at the top of the list. But CDA, and specifically Section 230 of the law, has vaulted near the top of policymakers’ concerns.
Known by its supporters as the provision that created the internet, Section 230 immunizes website owners from the activities of its users. So Facebook cannot be sued for a user’s post, or YouTube for an uploaded video. For most of its history it was seen as fostering tech innovation, but that no longer applies, as trust in Big Tech
erodes in Washington.
Leaders across the political spectrum alternately blame Section 230 for enabling misinformation and hate speech, contributing to Big Tech dominance, and putting selected giant corporations above the law. And as Matt Stoller
has documented, this anger is growing. Witness that fount of conventional wisdom Joe Scarborough
losing his mind while accusing Facebook’s Mark Zuckerberg and Sheryl Sandberg of allowing hateful comments to spread unchecked on their platform, ruining democracy for a quick buck.
Business and advocacy communities are also demanding action. A flare-up between Apple and a new email app called Hey has
developers stepping forward to condemn Apple’s App Store monopoly. Civil rights leaders who met with Zuckerberg
released a searing statement afterward, condemning the CEO’s “incomprehensible explanations” for dealing with inflammatory Trump posts. This followed a
virtual walkout by Facebook employees, and now top ad agency 360i
wants its clients to honor the civil rights groups’ boycott of Facebook.
When Google
banned one right-leaning site from its ad platform and threatened another, conservatives were quick to allege bias. Politicians on the left have
attacked Apple for abusing its power and
Google for enabling scam artists to target its users with advertising.
There are plenty of good reasons to alter the liability shield for Big Tech.
Not all of these complaints precisely connect to legal immunity for user-generated content, though many of them do. But it’s clear that everybody, left, right, and center, wants to do something, and Section 230 is sitting out there as something to do.
Everyone has a Section 230 plan; it’s one of the rare areas of agreement between
Donald Trump and
Joe Biden. The Justice Department last week
proposed legislation in line with a previous Trump
executive order, limiting tech immunity if platforms violate free speech rights, “facilitate” violations of federal law or show “reckless disregard” to such violations happening on their sites. Sen. Josh Hawley (R-MO) and several Republican colleagues
rolled out legislation last week that extends Section 230 protections only to platforms “operating in good faith,” defined vaguely as not selectively enforcing terms of service or acting dishonestly. Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) have a
similar bill. Sens. Mark Warner (D-VA) and Rep. Adam Schiff (D-CA) have
proposed limitations to the liability shield, as did presidential candidates Sen.
Bernie Sanders (I-VT) and former Rep.
Beto O’Rourke (D-TX).
There are plenty of good reasons to alter the liability shield for Big Tech. For one, Section 230 is being extended by companies like Airbnb (claiming the home rentals of their users are “third-party content”) and Amazon (the same for the product sold by third parties on their marketplace) in ways that are downright dangerous, subverting consumer protection and safety laws. For another, the conspiracy theories, algorithmic discrimination and online hate speech are prospering due in large part to that shield. One interesting concept for reform is to tie Section 230 to the banning of targeted advertising, which I called for two years ago, in the hopes that eliminating a click-bait business model would make hosting valuable content the only path to success.
But it’s hard to invest much energy in what the optimal Section 230 framework would be, since Big Tech has already solved this potential problem—in a way only they can love. Years ago, they succeeded in getting a Section 230-style provision into the reworked NAFTA, the U.S.-Mexico-Canada Agreement (USMCA). And practically everybody now incensed by the Section 230 legal immunity willingly voted to implement it in that trade agreement. That makes it much, much more difficult to change it in any way.
I first wrote about Section 230 in the USMCA in July 2018. This was the first multilateral agreement that included such a provision, which isn’t standard outside the United States. By this point Big Tech already knew that its grip in Washington was loosening, so they managed to engage in a common tactic: implanting into a trade deal what they might lose if it were stand-alone legislation. House Speaker Nancy Pelosi belatedly tried to remove the provision from USMCA before it came to a vote last December but didn’t succeed. “There was not really a focus” on removing it, Rep. Jan Schakowsky (D-IL) told me recently.
The provision also appears in a bilateral agreement between the U.S. and Japan, and is expected to be a template for future deals.
At the time, the U.S. trade representative’s office insisted that there was an escape clause in the law, allowing countries to adopt “legitimate public policy objectives,” even if they conflict with the spirit of the trade deal. In 2018, Congress passed a carve-out to Section 230 through anti-sex trafficking legislation that holds tech companies responsible for such conduct being transacted on their websites. That would be able to stand, along with other changes, if the trade office is correct.
But it’s not entirely up to USTR. If the U.S. tries to alter Section 230, Facebook or Google could sue, maintaining that the proposed change, whatever it might be, was illegitimate and violated the USMCA. The case could go to an extrajudicial tribunal or the World Trade Organization, and the U.S. could lose the case or get tied up in the courts for years. Big Tech generally has no quarrel with the anti-sex trafficking bill, but something more disruptive would almost certainly draw a legal challenge. Adding the Section 230-style provision into the USMCA created an enormous hurdle.
Nearly everyone seeking to overhaul Section 230 voted for the USMCA, and the provision cementing Section 230 in place. Lindsey Graham, Richard Blumenthal, Mark Warner, Adam Schiff, Josh Hawley, and all the co-sponsors of Hawley’s bill (Marco Rubio, Tom Cotton, Mike Braun and Kelly Loeffler) voted for it. Trump is talking big about canceling Section 230, but his trade agency negotiated it and he signed the trade deals that include something just like it.
The implementing legislation
passed 385-41 in the House last December. Schakowsky and Rep. David Cicilline (D-RI) were two of those voting in favor, but they have since recognized the danger of putting the liability shield in the trade deal. In a March letter to the heads of the Appropriations subcommittees that have jurisdiction, Schakowsky and Cicilline requested that they add language prohibiting the implementation and enforcement of the Section 230-style provision in the USMCA and the U.S.-Japan deal, as well as any future trade agreement, by removing funding for that purpose. “There remain bipartisan concerns with Section 230 and it is critical Congress maintains its ability to potentially amend it in the future,” Schakowsky and Cicilline write.
In a recent
Zoom event put on by the
Prospect and the American Economic Liberties Project, Rep. Schakowsky said that U.S. Trade Representative Robert Lighthizer has “taken very seriously our concerns and spoken to me at some length on the matter.” However, she added, “Lighthizer likes to say this has nothing to do with national law, we can still do what we want. I think that is not really the case … I think there is no doubt it makes it harder to change the rules. So long as this remains USTR’s negotiating position we can’t have a substantive debate over how to reform Section 230.”
Including Section 230 in the USMCA further entrenched corporate power, taking an end run around Congressional lawmaking. While policymakers now express outrage and are writing legislation to scale it back, they’re the ones who enacted that end-run. And it’s going to be more difficult to change course as a result.
