House Speaker Nancy Pelosi, D-Calif., is pushing to keep a key legal shield for tech companies out of a new trade agreement with Mexico and Canada. The Wall Street Journal first reported the news on Thursday.
The effort could throw a wrench into progress Congress seemed to be making on the pact and would be a blow to tech companies who already fear losing the legal protection within the U.S. Just last week, Pelosi said House Democrats were “within range” of reaching a pact they can support for the United States-Mexico-Canada Agreement, or USMCA, which would replace NAFTA.
Language in the proposed trade agreement echoes that of Section 230 of the Communications Decency Act, a hotly debated portion of the law that protects online platforms from liability for their users’ content. Having such language included in the agreement would be a boon for tech companies and would ensure certain legal protections for them abroad. But lawmakers have repeatedly questioned the wisdom of the law at home as disinformation spread freely on platforms such as Facebook, Twitter and Google‘s YouTube leading up to the 2016 election and violent content has continued to crop up.
“There are concerns in the House about enshrining the increasingly controversial Section 230 liability shield in our trade agreements, particularly at a time when Congress is considering whether changes need to be made in U.S. law,” a spokesperson for Pelosi told CNBC.
On Twitter, Rep. Frank Pallone, D-N.J., said he agreed with Pelosi’s push to remove the legal protections from the agreement. Pallone is the chairman of the House Energy and Commerce Committee, which held a hearing on Section 230 in October where representatives from tech companies including Google and Reddit testified on the importance of the law for their businesses.
Pallone and the top Republican on the Energy and Commerce Committee, Rep. Greg Walden of Oregon, wrote a letter to U.S. Trade Representative Robert Lighthizer in August saying it was “inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing. For that reason, we do not believe any provision regarding intermediary liability protections of the type created by Article 19.17 are ripe for inclusion in any trade deal going forward. Given that our committee closely oversees Section 230 and all portions of the Telecommunications Act of 1996, we also hope in the future the Office of the United States Trade Representative will consult our Committee in advance of negotiating on these issues.”
But even after that letter, it’s unclear if Pelosi will receive support from her Republican colleagues on keeping such language out of the USMCA. A spokesperson for the Energy and Commerce Republicans said the letter to Lighthizer and Walden’s position are focused specifically on future trade deals, rather than ongoing ones such as the USMCA.
Fear of tying Congress’ hands
At the October hearing, Reddit CEO Steve Huffman testified that Section 230 gives his company the leeway to adapt “to meet new challenges” with their policies. Lawmakers at the hearing expressed support for a nuanced approach to any potential changes to the law, recognizing that it often allows tech platforms to remain nimble and take down negative content with impunity as well. Experts on the panel, like Boston University School of Law professor Danielle Citron, suggested tying the liability shield to companies’ demonstrating “reasonable” content moderation rather than giving it to tech companies for free.
Some lawmakers worried about the implication of including language from Section 230 in trade agreements, fearing that it would make the law harder to revise in the future.
“Trying to fit it into the regulatory structure of other countries at this time is inappropriate,” said Rep. Jan Schakowsky, D-Ill.
Gretchen Peters, executive director of the Alliance to Counter Crime Online, testified that including such language in trade agreements is “problematic because it potentially is going to tie Congress’ hands from reforming the bill down the line, and that’s precisely why industry is pushing to have it inside the trade deals.”
But Katherine Oyama, global head of intellectual property policy at Google, argued this isn’t the case.
“There’s no language in the trade deals that binds Congress’ hands,” Oyama testified to lawmakers. “There’s nothing in the current USMCA or the U.S.-Japan FTA that would limit your ability to later look at 230 and decide that it needs tweaks later on.”