Outdated safe harbor laws have no place in trade agreements

Earlier this month, House Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-N.J.) and Ranking Member Greg Walden (R-Ore.) sent U.S. Trade Representative Robert Lighthizer a letter cautioning against the inclusion of language drawn from a decades-old internet safe harbor provision in the current United States-Mexico-Canada Agreement (USMCA). The letter was sent just after the mass shootings in El Paso and Dayton, which have rekindled debates over internet platform accountability and Section 230 of the Communications Decency Act (CDA).

While confusion and misinformation surrounding Section 230 has reached a fever pitch in the weeks following these tragedies, the immunities granted to an “interactive computer service” over 20 years ago have been the subject of increased scrutiny for years. And although Section 230 was recently amended to address the facilitation of sex trafficking on the internet, challenges remain in illegal online opioid sales, the spread of domestic and international terrorist propaganda, election meddling, pedophilia, and other illicit behavior.

But beyond recognizing the challenges Section 230 presents domestically, it’s imperative to understand that inserting it into trade agreements will commit the U.S. to an outdated framework and constrain Congress’s ability to revise the law.

In the mid-1990s, attempts to balance the duties and rights of online platforms became key provisions of Section 230 of the CDA. The statute grants service providers and interactive computer services broad immunity from claims related to content that users post on their platforms, explicitly stating that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

This clause was born of a desire to not unduly burden nascent companies that were leading innovators in early days of the internet. And while it was a model based on the good intentions of fostering the advance of technological innovation and the web, Section 230 has become a shield that entrenched internet industry players use to skirt liability for the illegal and increasingly disturbing content found on their services.

Indeed, laws that were meant to nurture the architects of the internet have served their purpose, allowing for unprecedented growth among the companies that dominate our online experience. Yet, over the past 20 years, they have also informed a culture of unaccountability in the digital world where a consequence-free philosophy — brought on by the safe harbors that impose no penalties on internet platforms, even if they knowingly profit from illicit content — inspires the behavior of users, platforms, and service providers alike.

Efforts to update these vestiges of a bygone internet age have been fiercely opposed by platforms and organizations that represent their interests, with campaigns claiming that any attempt to impose accountability for third party content will destroy the internet as we know it. But as the failings of 230 come under closer scrutiny, a new tactic is being employed by those whose business models depend on 230’s sweeping immunities.

Efforts to package Section 230 into foreign trade agreements ramped up during the NAFTA negotiations in 2018, and language mirroring 230 is now part of the USMCA that is currently awaiting Congressional approval. It’s a shrewd strategy, given that successfully embedding Section 230 into trade agreements would not only spread the cherished safe harbor provisions to other countries, but would also make it difficult to amend domestic safe harbor laws — lest our own country be found in violation of the agreement.

Advocates of including Section 230 in international pacts have been candid in their reasoning, with the Electronic Frontier Foundation (EFF) admitting that “baking Section 230 into [trade agreements] may be the best opportunity we have to protect it domestically.” Rather than considering whether it actually makes sense to export Section 230 abroad, these organizations see trade agreements as a tool to ensure it lives on in a form that would be difficult to update or amend.

Trying to achieve legislative goals outside of the democratic process by using end-arounds is something that the EFF has vigorously denounced in the past, and yet that is the very nature of its efforts to wedge Section 230 into a trade agreement.

In its 20-plus-year life, never has Section 230 been included in trade agreements, and efforts to now insert it into one reveal an established industry desperate to cling to immunities that have supported its extraordinary rise to power and wealth.

Every day, it becomes more apparent that Section 230 — and the culture of zero accountability that it has bred — must be reconsidered and revamped. Allowing it to live on through trade agreements ignores its deficiencies and ties the hands of leaders to effect overdue and meaningful change.

Kevin R. Madigan (@KevinRMadigan) is deputy director of the Center for the Protection of Intellectual Property (CPIP) at Antonin Scalia Law School. He blogs on copyright and IP at MisterCopyright.org.