Thanks to the internet, a startup anywhere in the U.S. with a good idea can quickly grow to be a global company. Several aspects of U.S. law make it possible for startups to succeed with small budgets and few resources, including Section 230 of the Communications Decency Act, which limits the liability internet services have to take on when they host content created and shared by their users.
Exporting those critical protections in international agreements dealing with digital trade is what lets U.S. internet companies of all sizes thrive and compete internationally. That’s why several voices in the technology community — including Engine, which works with startups, as well as larger industry groups and organizations that advocate on behalf of internet users — are eager to see new trade agreements that include language approaching the kinds of intermediary liability limits found in Section 230, such as the new United States-Mexico-Canada Agreement, or USMCA.
But the framing around the inclusion of intermediary liability limits in U.S. trade deals by Section 230’s opponents, some policymakers, and recent reporting — including a New York Times article from last week that said including Section 230-like language in USMCA would “lock in tech-friendly regulations” to the benefit of “big tech” companies — misses the mark.
Section 230 protects the ability of companies of all sizes, not just the large internet platforms, to host user speech. In fact, Section 230 ensures that a small, new startup can launch without having to worry about ruinous litigation over every piece of user-generated content it hosts or chooses to remove. Without Section 230, a startup that hosts user content would have to use its scarce resources to build out prohibitively expensive and largely ineffective moderation tools and be prepared to spend hundreds of thousands of dollars fighting lawsuits any time one user thinks another user’s content should be taken down, and any time a user disagrees when the platform removes that user’s speech.
In a world without Section 230, the only platforms that will be able to survive will be run by large companies that can afford to hire tens of thousands of people to manually review users’ content and can afford to spend millions building filtering tools. Anyone who is worried about the reach of large internet companies should be working to preserve laws like Section 230 that allow startups to get off the ground.
Another error commonly heard in the current debate about intermediary liability protections in trade deals is the idea that the inclusion of those protections would export Section 230 around the world, forcing other countries to comply with U.S. law. That’s untrue.
Article 19.17 of USMCA, which includes intermediary liability protections, states that no party can impose liability “on a supplier or user of an interactive computer service” because of “any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material,” or because of “any action taken to enable or make available the technical means that enable an information content provider or other persons to restrict access to material that it considers to be harmful or objectionable.”
That language will help streamline the digital trade agreements that have allowed online platforms to thrive in a globally connected world. They do not require any legislative changes on the part of trading partners, nor do they preempt a country’s existing or potential laws. They are simply a tool to ensure that companies of all sizes can more seamlessly compete across the world.
Including intermediary liability protections in trade agreements isn’t a gift to “big tech.” It’s to the benefit of platforms of all sizes, especially startups, and Internet users looking to create and share content around the world.
Kate Tummarello is policy director at Engine, an advocacy and research organization that supports tech startups. She has a background in privacy and security issues, including her work as a journalist and as a digital rights activist. Follow her on Twitter @ktummarello