NAFTA shouldn’t include outdated internet safe harbors

North American Free Trade Agreement (NAFTA) negotiations resumed this week in Montreal with a sixth round of talks aimed at modernizing the nearly 25-year-old agreement. While progress has so far been sluggish, some advocates believe the negotiations are an opportunity to insert provisions into the treaty that will further immunize internet intermediaries against liability for illegal activity that they enable through their platforms.

But it would be a grave mistake to import outdated safe harbors into NAFTA that further promote immunity for web intermediaries who repeatedly facilitate (and profit from) criminal activity and intellectual property infringement.

{mosads}In advance of the latest round of negotiations, a group of organizations including the Electronic Frontier Foundation and Public Knowledge joined several professors in a letter urging the NAFTA delegation to adopt the protections afforded to internet platforms and intermediaries found in Section 230 of the Communications Decency Act. And though the letter avoids a discussion of copyright law, the rhetoric is in line with a clear push by some of these same organizations to implant into NAFTA the broad and equally outdated safe harbors found in the Digital Millennium Copyright Act (DMCA).

Just as the expansive safe harbor provisions of the DMCA are routinely touted by these organizations as the reason internet platforms thrive, the letter praises Section 230 as “directly responsible” for the success of internet companies who publish information provided by others, such as YouTube, Google, and Facebook. The letter further insists that incorporating Section 230 into NAFTA would benefit everyone affected by international trade.

Unfortunately, the letter ignores the darker side of Section 230, which has recently been exposed as shielding web intermediaries from liability when they facilitate illegal and disturbing activity.

Last year, following a raid on offices of the website Backpage for alleged facilitation of sex trafficking, a California judge found that Section 230 protected the site and Backpage officials from liability. Though it wasn’t Congress’ intent to enable websites to profit from illegal activity, the broad language of Section 230 that Backpage took advantage of has revealed serious flaws in applying this outdated statute to the modern internet.

The letter also insists that broad intermediary liability allows internet startups to more easily launch and grow. The letter argues that imposing liability on web intermediaries will chill the development of innovative services and result in an anti-competitive marketplace. 

But if Section 230 is so essential to startups that rely upon its immunities to flourish, why are the strongest voices in favor of safe harbors actually the largest companies in the world and organizations aligned with their philosophy of zero accountability for web intermediaries?

Despite the good intentions of those who saw Section 230 as a way to ensure online innovation in the mid 90s, today it seems to work more to solidify the ability of already entrenched players to enable and profit from criminal activity without consequence or accountability.

Finally, the letter claims that intermediary liability encourages “the socially valuable work of moderating anti-social content without fearing liability.” This is a curious claim given that Section 230 and similar provisions in the DMCA empower web intermediaries to turn a blind eye to harmful and illegal content on their websites. Rather than encouraging web intermediaries to responsibly moderate the content they host, overbroad safe harbors allow these companies to profit from illegal content while doing nearly nothing to keep it off their sites.

Most agree that NAFTA needs a tune up for the 21st century, but importing broad exceptions to liability for companies that facilitate and profit from illegal activity would be taking a step backwards, not forwards. As April Glaser explains in an article on the controversial nature of Section 230, “for all it has given us, Section 230 of the CDA has also protected some of the worst parts of the internet.”

The internet was in its infancy when NAFTA was negotiated in the mid 90s. But the internet was also in its infancy when Section 230 was enacted. Instead of inserting into NAFTA overly broad safe harbors that were shaped over two decades ago — and have been exposed as deeply flawed — updates to NAFTA should strengthen web intermediary accountability in the digital age.

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