Renegotiated NAFTA Will Entrench Big Tech Censorship
When he signed the U.S.-Mexico-Canada Agreement, Donald Trump boasted that it was the “most advanced trade deal in the world with ambitious provisions on the digital economy.” But unless it’s revised, the agreement will thwart the president’s explicit promises to address social media censorship. Article 19.17 of the USMCA stealthily removes seven words from Section 230 of the Communications Decency Act’s “Good Samaritan” provision, which would give Big Tech the statutory right to censor whatever content it finds “objectionable.”
Section 230 of the Communications Decency Act establishes that “Interactive Computer Services” (ICSs) — which covers search engines, social networks, discussion boards, and other user-generated platforms — cannot “be treated as the publisher or speaker” of their users. In practice, this means if the New York Times publishes a defamatory article online, the victim can sue the Times and the author, but if the @NYTimes tweets the same defamatory claim, Twitter has no legal responsibility.
As social media companies are increasingly acting like publishers and editors by removing any content they dislike, many conservatives including Ted Cruz, Ann Coulter, and Tucker Carlson have argued that this immunity should be contingent on some form of viewpoint neutrality. As Sen. Cruz wrote in April, “In order to be protected by Section 230, companies like Facebook should be ‘neutral public forums.’ On the flip side, they should be considered to be a ‘publisher or speaker’ of user content if they pick and choose what gets published or spoken”
The social network’s defenders responded that Cruz had this backwards. Elliot Harmon of the Electronic Frontier Foundation contended that “one of the reasons why Congress first passed Section 230 was to enable online platforms to engage in good-faith community moderation without fear of taking on undue liability for their users’ posts.”
Harmon was referring to Section 230(c)(2), the law’s “Good Samaritan” clause, which provides that platforms cannot be held liable for good faith restrictions on what they consider “to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
Congress was clear that its concern was to focus on pornography and obscenity, not political content. Besides the law’s name, the Communications Decency Act, Section 230 includes a policy statement and congressional findings. The drafters explained they wanted to “empower parents to restrict their children’s access to objectionable or inappropriate online material” and that ICSs offered a “forum for a true diversity of political discourse.”
Santa Clara University law professor Eric Goldman argues the USMCA’s “omissions are logical because the case law has typically been based on 230(c)(2)’s ‘objectionable’ provision anyway.” However, at least five federal courts as well as an Ohio state court have declined to “to broadly interpret `otherwise objectionable' material to include any or all information or content,” as the Southern District of California held in Sherman v. Yahoo in 2014.
The reason these courts give is that the term “otherwise objectionable” is known as an ejusdem generis or “of the same kind." As a Northern District of California court held in Song Fi. v. Google in 2015, “When a statute provides a list of examples followed by a catchall term (or ‘residual clause’) like ‘otherwise objectionable,’ the preceding list provides a clue as to what the drafters intended the catchall provision to mean.”
Thus, the immunity is limited “to that which the provider or user considers sexually offensive, violent, or harassing in content,” as another Northern District Court held in Darnaa v. Google the following year.
Removing those seven terms would remove the context for “objectionable” and likely lead courts to interpret it to mean whatever the platforms object to -- which has thus far included the word “illegal alien,” pro-life advertisements, videos defending “Israel’s Legal Founding,” and President Trump’s own immigration advertisements.
Of these six cases, Google was the defendant in four, and Yahoo and eBay were the defendants in the others. All these companies -- along with Twitter, Facebook, Amazon, Microsoft and other dominant platforms -- are members of Internet Association trade group.
In 2017, the association published a “Modernizing NAFTA” white paper that proposed “NAFTA should prohibit governments from making online services liable for third-party content.” Otherwise, countries with “weaker standards on free speech” could “impose extraterritorial control on the activities of U.S. citizens and companies.”
Similarly, when Congress was considering removing sex trafficking from Section 230 exclusions, the Internet Association’s Abigail Slater (now a technology adviser in the White House) told Congress that the law would “send a dangerous signal to other countries that are seeking to require U.S. internet services to filter dissenting political speech.”
The Internet Association received its wish, but make no mistake, this will make it easier for platforms to “filter dissenting political speech.”
To be clear, as interpreted by the courts currently, Section 230 does not prevent online platforms from exerting political bias or censorship. However, the revisions would statutorily entrench this right, preventing other legal actions to stop them.
And Republicans are considering a wide array of remedies.
President Trump has considered some sort of executive order on the topic. Many Republican state attorneys general raised concerns over online censorship and could potentially use state consumer protection laws to make a false advertising claim. The Federal Trade Commission could consider a consumer protection case against the platforms for falsely representing themselves to be free speech whey they vigorously censor speech.
Additionally, conservatives such as Dennis Prager have gone directly to the courts and argued that some state anti-discrimination laws and constitutional provisions have been violated. Responding to his lawsuit, Google argued that the “Good Samaritan” provision allowed it to filter out any objectionable content. The court ruled against Prager on unrelated grounds, and did not address Section 230.
Many conservatives have expressed unease about telling private platforms what content they must allow. However, even if one opposes some of these attempts to go after Silicon Valley, responding with Section 230 as a defense is not a free market or constitutionalist position.
Section 230 does not codify First Amendment or common law principles. Justices William Rehnquist, Antonin Scalia, and Clarence Thomas all joined Anthony Kennedy’s 1996 opinion in TBS v. FCC that the First Amendment “does not disable the government from taking steps to ensure that private interests” do not impede “the free flow of information and ideas.”
Section 230 is a government-granted privilege not afforded to other industries. While there was a very high bar to sue distributors (such as libraries and newsstands) and conduits (such as telegraph companies) of information at common law, they never enjoyed absolute immunity. They were not responsible for all the books they sold or messages they sent, but if they knew it was defamatory, they had an obligation not to publish. Section 230 goes far further and allows them immunity even if they are certain that an action is defamatory. In July the California Supreme Court held that a platform did not have to remove a defamatory post even after a court order established it as such.
Furthermore, the qualified immunity against defamation, which courts gave information conduits such as telegraphs, also came with common carrier obligations not to block or discriminate messages.
Silicon Valley giants are trying to have it both ways. They receive special privileges based on being forums for political diversity, while using an exception specifically targeting pornography and obscenity to justify political censorship. Now, they have managed to persuade the Trump administration to try strengthen this double standard and export it to our trading partners. In August, President Trump tweeted that Silicon Valley bias and censorship “is a very serious situation-will be addressed.” If Congress ratifies the USMCA without revising or removing Article 19.17, the only thing he will have done is entrench their double standards.