If you’re familiar with Section 230, feel free to skip the next two paragraphs. If not, here’s a quick primer:
The certainty that Section 230 provides is a major reason why America leads the world in online technology investment and innovation. Section 230 is the common reference to the law that largely protects tech platforms from liability over what third-party users post. For example, if a person posts a libelous Facebook status about you, Facebook is not legally responsible for the content, only the person who posted it.
While critics of Section 230 exist on both sides of the aisle for various reasons, the law is essentially responsible for the Internet as we know it today. Without it, platforms from online marketplaces, to social media, to review sites would either be unmoderated cesspools or simply wouldn’t exist as largely free and open to users. Prior to Section 230, any attempts to moderate content meant platforms could be held liable for all user-generated content. Section 230 addresses the impracticality and excessive risk of assuming liability for all the countless pieces of content uploaded by users by granting tech companies the ability to moderate content as they see fit.
As is the case with Section 230 itself, the Section 230-type protections included in USMCA are not absolute. Per the Congressional Research Service, “Section 230’s shield does not apply to federal criminal law, intellectual property law, the Electronic Communications Privacy Act of 1986, or state laws similar to the Electronic Communications Privacy Act of 1986.” Per the similar section of the USMCA, “Nothing in this Article shall: apply to any measure of a Party pertaining to intellectual property, including measures addressing liability for intellectual property infringement; or be construed to enlarge or diminish a Party’s ability to protect or enforce an intellectual property right; or a supplier or user of an interactive computer service from complying with a specific, lawful order of a law enforcement authority.”
While there are no real quibbles with this language under U.S. law and the very limited exceptions to the First Amendment, such as laws to combat child pornography, speech protections in other countries are rarely as robust. For example, “hate speech” is a criminal offense in Canada.
Canada certainly focuses its criminal enforcement of hate speech laws on the actual speaker, however the Trudeau government has plans to begin enforcement against online platforms as well in a way that would never occur under U.S. law. In a recent mandate letter to Canada’s Minister of Canadian Heritage, Prime Minister Trudeau called for the creation of “new regulations for social media platforms, starting with a requirement that all platforms remove illegal content, including hate speech, within 24 hours or face significant penalties.”
Such regulations would fly in the face of the spirit of Section 230. A key point of such language is to provide impunity for, and thus encourage moderation and removal of hate speech and other objectionable content by online platforms.
In short, USMCA, held up as a “template” for future trade deals, is not the panacea for U.S. tech companies providing services abroad that some may believe it to be. While Section 230’s language is adequate under U.S. law and the First Amendment, the fact that other countries criminalize speech well beyond U.S. standards means more forceful or explicit language is needed in trade agreements to truly protect US tech interests abroad. A blanket exemption for any and all “law enforcement” is insufficient. Trade negotiators should push to exempt specific forms of illegal conduct and content instead.
To be clear, Section 230-type language in USMCA is certainly a step in the right direction with some marked positives for the tech sector. Tech companies will enjoy similar civil liability protections as they do in the U.S. Further, entrenching Section 230-type language in trade agreements will make it more difficult for domestic opponents to do damage to Section 230 itself. However, as it stands USMCA, and any subsequent trade deals based upon it, will do little to protect American firms with assets or operations abroad from laws that criminalize speech and other content beyond U.S. standards.