Trade negotiations mustn’t short-circuit domestic debate

According to extremes from each end of the dispute, Section 230 of the 1996 Communications Decency Act is either a legislative masterstroke on which everything we love about the internet hinges, or a handout to Silicon Valley that immunizes hate speech, partisan censorship and fraud online.

A more measured view is that, Section 230 provided an important but perhaps imperfect solution to a particularly knotty problem – determining whom to hold accountable for harms occurring online. And as the internet has grown more and more indispensable to our commercial, cultural and political lives over the decades, it’s unsurprising that Section 230 has moved to the forefront of national debate.

In recent months, both President Trump and Joe Biden have called for Section 230 to be revoked, and the White House issued a sweeping executive order in an effort to pierce the law’s protection for platforms like Facebook, Twitter and Twitch. Additionally, the Department of Justice (DOJ) released a major white paper proposing to limit or reshape the law in multiple far-reaching ways.

Capitol Hill is also awash in proposals to change the law to address problems that bedevil consumers – and politicians – online. Republicans seek to correct what they consider anti-conservative bias, while Democrats believe it shields what they perceive to be inappropriate speech online.

Amid that healthy and ongoing debate over Section 230, however, contradictory actions of the U.S. Trade Representative (USTR) would lock the current version of Section 230 into major trade agreements. As the White House, the DOJ and leaders of both parties in Congress actively work to update and reform this vital law USTR shouldn’t short-circuit that process of reevaluation and debate by locking Section 230’s current provisions into international trade agreements it negotiates.

Specifically, the USTR seeks to include the current form of Section 230 in new agreements with Britain and Kenya. That follows the office’s effort to include it in last year’s critical U.S. Mexico Canada (USMCA) deal – a bit of regulatory brinksmanship that almost cratered the entire deal. That prompted an extraordinary editorial from the conservative Dallas Morning News warning that the “terrible decision” to include Section 230 in the USMCA “demonstrates how Washington does a terrible job of actually giving close and careful consideration to legislation that stands to hurt Americans and others.”

The USTR’s headlong rush to lock Section 230 into trade agreements creates several significant problems.

First and most obviously, it contradicts President Trump’s own policy, his recent executive order and the DOJ reform effort on 230. That dissonance only confuses and complicates our domestic debate even more. The USTR should instead act more cautiously, especially given the significant implications of long-term trade agreements.

A more fundamental substantive problem is that exporting Section 230 to other nations via trade agreements renders domestic reform, if ultimately desired, more difficult. Indeed, Canadian Internet Law Professor Michael Geist recently argued that the USTR was more worried about locking in U.S. law on this issue than setting requirements for its trading partners:

[T]he U.S. has effectively locked itself into the safe harbour system through its trade agreement with Canada and Mexico. The inclusion of safe harbour provisions in the agreement were viewed by some as an attempt to force Canada to adopt similar rules, yet the more likely reason for lobbying on the issue was to ensure that the U.S. itself was bound by the rules.

That potential danger explains the broad and bipartisan outcry on Capitol Hill pressuring the USTR not to freeze Section 230 in trade agreement amber while legislative reforms continue. Legislators as diverse as Nancy Pelosi (D-Calif.), Ted Cruz (R-Texas), Frank Pallone (D-N.J.), Greg Walden (R-Ore.), Jan Schakowsky (D-Ill.), Paul Gosar (R-Ariz.), and Matt Gaetz (R-Fla.) have all objected to the USTR’s blinkered determination to singlehandedly set U.S. policy on this issue.

Whatever one’s substantive position on the merits of Section 230, all parties of fair mind and good faith should agree that it’s inappropriate for USTR to undercut the healthy and ongoing debate on the breadth and scope of what has become very controversial law.

Timothy Lee is Senior Vice President of Legal and Public Affairs at the Center for Individual Freedom.