CDA Section 230 and the USMCA

The Big Tech-shielding principles of Section 230 of the Communications Decency Act (C.D.A.) have made their way into the U.S.-Mexico-Canada Agreement (USMCA), despite some opposition in Congress.

Section 230 of the C.D.A. has been credited as the catalyst for creating America’s multibillion-dollar online industry and christened as “the law that built the internet.” Yet, despite its many fans, there were several in Congress – on both sides of the aisle – who staunchly opposed its inclusion in the USMCA.

Section 230 (c)(1) states, “No 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 language has been interpreted by the courts to grant online platforms broad immunity from liability for user-generated content. Some courts have even given platforms who knowingly publish and/or solicit illegal content a pass.

Proponents of Section 230 like The Electronic Frontier Foundation have said it’s “one of the most valuable tools for protecting freedom of expression and innovation on the internet.” Arguably, without this protection, sites like Facebook, YouTube, Instagram and Twitter would never have become what they are today. Their early resources would have been quickly swallowed up by the expense of policing every shred of content posted on their sites. Social media as we know it would not exist.

Yet, opponents of Section 230 argue that in the absence of any obligation to police content, online platforms haven’t done enough and as a result they’ve become breeding grounds for drug-trafficking, sex-trafficking, terrorist and other illegal activity. They point out that allowing platforms to turn a blind eye to criminal activity enables them to profit from that activity.

In the backlash against one particular platform who escaped liability under Section 230, Congress finally chipped away at its protections last year with the passing of FOSTA-SESTA (the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act). Congress passed the bills after several hearings in which it found Backpage.com complicit in child sex-trafficking on its site. Backpage.com had been sued for illicit activity, but the court dismissed the case citing Section 230 immunity.

FOSTA-SESTA now makes it illegal to knowingly assist, facilitate or support sex trafficking and removes Section 230 immunity in such cases. Still, many worry that the new law will cause more harm than good. They argue that removing sex-trafficking from the internet will make it harder to catch perpetrators and rescue victims. They suggest that the law will be more harmful to protected speech and internet entrepreneurship than it will to illegal sex-trafficking.

A year later, lawmakers still disagree as whether Section 230 should stay, go or be further modified. Removing the safe harbor entirely would likely hurt up and coming sites the most as the more established companies now have the resources to police content and/or defend themselves in court. However, lawmakers on both sides of the aisle have issues with the law as it stands. Republicans argue that Section 230 has allowed these sites to prejudicially censor conservative voices and Democrats have voiced concern that it fueled the Russian misinformation campaign influencing the 2016 U.S. election.

Noting wide apprehension about extending (and thus preserving) the hotly contested law into US trade agreements, Speaker Nancy Pelosi made an eleventh-hour push to keep Section 230 out of the USMCA. She announced last month that she was unsuccessful, stating that it was “a real gift to Big Tech.”