LOS ANGELES—Section 230 of the 1996 Communications Decency Act has served for nearly a quarter-century as the foundation of open communication on the internet. The law shields internet providers and platforms from legal liability for content posted by third parties, freeing them from the responsibility of policing every one of the billions of pieces of content posted online every day.
In essence, Section 230 means the the activities of bad or unlawful internet users cannot be held against the platforms and providers that host those rogue users.
But Section 230 over the past couple of years has come under attack from both sides of the partisan divide in Congress, as both Republicans and Democrats have backed measures to weaken the 24-year-old law, starting with the FOSTA/SESTA anti-sex trafficking bill that passed with overwhelming support in 2018.
At the same time, the Trump administration has also said it will take steps to curtail Section 230 protections. But Donald Trump’s democratic election opponent Joe Biden has also said that he wants Section 230 stricken down.
But all of those attacks may be irrelevant, because the new North American trade deal — the United States–Mexico–Canada Agreement, or USMCA — contains provisions that effectively guarantee that Section 230, or provisions that serve the same function, will remain in effect, according to a new analysis by the technology site Techdirt.
When the USMCA — the trade deal replacing NAFTA, which was scrapped by Trump — was negotiated two years ago, lobbyists for the technology industry managed to insert a Section 230-like provision in the language of the deal.
“Practically everybody now incensed by the Section 230 legal immunity willingly voted to implement it in that trade agreement,” wrote David Dayen, executive editor of The American Prospect. “That makes it much, much more difficult to change it in any way.”
The USMCA is also one of Donald Trump’s signature accomplishments, yet Trump himself has said he will sign an executive order to cripple Section 230 by regulating speech on social media. But that order would now clearly violate his own USMCA, which officially went into effect earlier this month.
Trump and the other opponents of Section 230 are now hemmed in by their own process of “policy laundering,” according to TechDirt’s Mike Masnick, who explains the practice as including provisions in trade deals that may not otherwise be supported by Congress.
“While the whole process of laundering policy this way is slimy and disgusting, there's some level of ironic enjoyment in watching those now pushing for the undermining of Section 230, suddenly realizing that they now are facing the exact same game plan that they spent decades pulling against the internet,” Masnick wrote.
Legislation to implement the USMCA passed the U.S. House in December by a vote of 385-41. In January, the Senate followed suit with a bipartisan 89-10 vote in favor.
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