Hugh Stephens, Distinguished Fellow, Asia Pacific Foundation of Canada, Vice Chair, Canadian Committee on Pacific Economic Cooperation (PECC)
Section 230 of the 1996 Communications Decency Act (CDA), a US statute passed in the infancy of the internet, just can’t stay out of the news. Section 230 is the clause inserted into the CDA that, as interpreted by the US courts over the years, has allowed internet intermediaries to avoid liability for content posted by users that is made available on their platforms. (It also allows those platforms to remove content considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such content is constitutionally protected”, but the focus of the tech community has been on avoiding any liability for doing nothing to restrict offensive user content rather than on its ability to take action against such content). It is highly controversial from many aspects, and can truly be described as a multi-edged sword, a measure that has come under attack primarily in the US, but also elsewhere, for a number of disparate reasons.
“The Twenty-Six Words That Created the Internet”?
In the US, Section 230 has long been a favourite of the tech community. As written in the CDA, it has been described by law professor and former journalist Jeff Kosseff as “The Twenty-Six Words That Created The Internet” (the title of his book on Section 230). Those twenty-six words are; “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. In Kosseff’s words, the twenty-six words have come to mean that, with few exceptions, “websites and internet service providers are not liable for the comments, pictures and videos that their users post, no matter how vile or damaging”. This is a good thing? Kosseff admits that the kind of blanket immunity conferred by Section 230 has resulted in significant social costs and he is not an absolutist when it comes to Section 230, although he argues that its repeal would be an overcorrection.
What is Wrong with Section 230?
Of late the provision has come under attack and been opposed by groups as varied as right-wing conservative commentators and websites (who object to the language in Section 230 that allows platforms to remove objectionable content since they see themselves as real or potential targets), to opponents of sex trafficking who have objected to the immunity from prosecution Section 230 provided to certain websites that promoted such activity, to lawmakers concerned that the immunity provided allows platforms to evade responsibility for distributing content that incites or glorifies violence, to advocates for responsible content (including copyright advocates) who are concerned that the legislation creates a general lack of accountability on the part of internet intermediaries for any content that they host, distribute or enable, allowing them to refuse to take action against user-generated abuses. The copyright angle is interesting because copyright infringement was specifically carved out of Section 230; intermediaries are not given a pass under the 230 language for hosting pirated content, but neither does it require them to address this issue. Safe harbours for copyright infringement are dealt with in other US legislation.
The sex trafficking issue was addressed in April 2018 when an amendment was passed by Congress providing for an exception to the broad immunity provided to platforms when it comes to hosting or distributing content relating to sex trafficking, sexual exploitation of children and prostitution. So far this is the only new exception added to the law since its inception. The Electronic Frontier Foundation and the tech community fought tooth and nail to oppose the amendment—until the last moment when it became clear that passage was inevitable– on the grounds that it was the first step on the slippery slope toward undoing Section 230.
The History of Section 230—And How it has been Misused
Section 230 has an interesting history, one that is somewhat counterintuitive given the use to which it has been put by internet intermediaries. Wired UK has a good summary, which outlines how back in 1995 then Representative Christopher Cox (a Republican from California) and Rod Wyden (a Democratic Congressman, now a Senator from Oregon) crafted the amendment. The problem arose because an online website, Prodigy (no longer in existence) was successfully sued because it had not moderated an online posting put up by a user that the plaintiff disagreed with. The court considered that because Prodigy had the ability to moderate the content, and did so on occasion (but not in this case,) it was a “publisher” and thus liable for defamation. On the other hand, other websites that made absolutely no attempt to moderate content on their platforms, whether or not the content was objectionable, were considered “distributors” and were off the hook. There was thus no incentive for online platforms to lift a finger to remove obscene or other content that would be objectionable to children, one of the early concerns about the spread of online content. The solution was Section 230, which provided, in the words of Rod Wyden, both a sword and a shield. The sword was the ability to take down objectionable content; the shield was immunity from prosecution for doing so, as well as not being responsible for the content posted by users. However Wyden, one of the architects, while still defending Section 230, has made it plain that he is dissatisfied with the way the tech platforms have abused the legislation. In a recent interview with Verge, Wyden had this to say;
“…what was clear during the 2016 election and succeeding events surrounding Facebook, is that technology companies used one part of what we envisioned, the shield, but really sat on their hands with respect to the sword, and wouldn’t police their platforms….The industry better start using the sword, part of the two-part package, or else it isn’t going to be in their hands”.
More Controversy about Section 230 in the US
On the other end of the political spectrum, there are those who object to even the limited amount of content moderation that has been undertaken by platforms, on the basis that such moderation amounts to “censorship” of conservative causes. Republican Senator Josh Hawley has introduced legislation that would require platforms to prove their political neutrality in order to retain the shield provided by Section 230—and would also allow “political content” to be left untouched. This proposal, which is unlikely to ever become law but which represents another attack on Section 230 from a very different angle, prompted the other co-drafter of the legislation (who is no longer in Congress) to break into print. In an editorial in the Wall Street Journal, Christopher Cox opposed Hawley’s bill commenting that;
“Any conceivably “political” content, no matter how hateful, dangerous or violent, will be left untouched—without concern for taste, public safety or the common decency one otherwise might expect in public discourse.
Ending content moderation on the largest, most popular social-media sites would be a game-changer. There would be nothing to prevent them from becoming extremist hubs like 8chan, a message board that has fostered a reputation as a lawless space for the most vitriolic content. Everything from jihadist screeds to supremacist hate speech is protected from government censorship by the First Amendment. This should not become the standard for the commercial websites we all use every day.”
Hawley’s bill would not address the root of the problem, which is the lack of accountability of the platforms for abusive content that they host. In fact it would make the situation worse. Anything vaguely labelled “political content” would have to be left up. The problem is not that the platforms use the “sword” element of Section 230 to remove some offensive content; it is that for the most part they hide behind the “shield” part of the legislation to do as little as possible with regard to content moderation, turning a blind eye to obvious abuses and refusing to take even minimal pro-active measures. A good example is YouTube’s refusal to remove permanently the video of the on-air murder of TV-host Alison Parker, the subject of a recent blog that I posted (“Google is Monetizing Human Tragedy”). YouTube’s policy, citing the protection that it enjoys under Section 230, requires Parker’s father to make a separate request for the video’s removal each time that it is reposted by some internet miscreant.
Why Is the US Pushing Section 230 in Trade Agreements?
From the above comments it is clear that, whatever your political perspective, and whichever way you look at it, Section 230 is badly broken has not been used in the way that its drafters intended. Given the controversy surrounding it, Section 230 is unlikely to remain in its present form for much longer. Why then, is the US Government trying to push Section 230 into bilateral or regional trade agreements that it negotiates? Why advocate a measure that is on quicksand at home, and is opposed by both progressive and conservative elements? Why indeed?
Back in January 2018 when renegotiation of the new NAFTA agreement was getting underway, a group of organizations and academics mostly from the US, among them the Electronic Frontier Foundation, Public Knowledge and other cyber-libertarians, sent a letter to the three negotiators (for the US, Canada and Mexico) arguing for the inclusion of Section 230 type language in the Agreement that was to be negotiated. Three or four Canadian academics, notably anti-copyright blogger and law professor Michael Geist signed the letter. Geist had earlier argued that Canada should give the US a “win” on its published negotiating demand to “establish rules that limit non-IPR [intellectual property rights] civil liability of online platforms for third party content”. The USTR included this in its list of trade negotiating objectives despite the fact that at the time it was clear there was no consensus in the US on Section 230. Among those opposed to pushing Section 230 on trading partners was well-known commentator Neil Turkewitz, who blogged on “NAFTA and Unsafe Harbors: Why Calls for Blanket Immunities Must be Rejected”.
The NAFTA (USMCA/CUSMA) Outcome: Fortunately Not the “Full 230”
The NAFTA negotiations went through many ups and downs until finally concluding at midnight on September 30, 2018. As I commented at the time, the outcome was a balance where Canada strove to maintain as much of the original NAFTA as possible, and had to make some concessions to do so, while the Trump Administration sought to roll-back much of the original NAFTA framework, while seeking concessions in new areas. Among these was the issue of platform immunity. The new NAFTA (aka USMCA or CUSMA) includes Article 19.17 that states, in part, “No party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms…” This language is similar to Section 230 and led some commentators, such as Dr. Geist, to immediately and prematurely declare that Section 230 had come to Canada. Fortunately that is not the case because of various qualifications carefully built in into the USMCA/CUSMA text, as I discussed in a detailed examination of the issue. The text does not require the establishment of a safe harbour regime for internet intermediaries in Canada but rather simply confirms the distinction between primary and secondary publishers in Canada, and makes no changes in the law. It does however specifically exempt internet intermediaries from liability if they voluntarily restrict access to content that they consider in good faith to be “harmful or objectionable”. (the sword part of the equation).
This wording is arguably broader than the language in Section 230 which refers more specifically to obscene materials. This has led the right-leaning website RealClearPolitics to accuse the USMCA of “stealthily” removing seven key words (obscene, lascivious, filthy etc.) from Section 230, thus allowing big tech “the statutory right to censor whatever content it finds “objectionable”, (which in their view likely includes content near and dear to the hearts of conservatives). These folks don’t want Congress to approve the USMCA with the current Article 19.17 language in it. While you may or may not agree with their reasoning, here is yet another constituency that looks at Section 230 and doesn’t like what it sees.
Should Section 230 Be In Trade Agreements At All?
This comes back to the issue of whether or not Section 230-type language should ever have been included in NAFTA. The most recent turn of the wheel is a letter from House of Representatives Energy and Commerce Committee Republican Leader Greg Walden (R-OR) and Chairman Frank Pallone, Jr. (D-NJ) who have written US Trade Representative Lighthizer stating that it is “inappropriate for the United States to export language mirroring Section 230 while…serious policy discussions are ongoing”. They do not want to see similar provisions being included in any trade negotiations going forward. Kevin Madigan, Deputy Director of the Center for the Protection of Intellectual Property (CPIP) at the Antonin Scalia Law School takes a similar view. He has written that;
“Every day, it becomes more apparent that Section 230 — and the culture of zero accountability that it has bred — must be reconsidered and revamped. Allowing it to live on through trade agreements ignores its deficiencies and ties the hands of leaders to effect overdue and meaningful change.”
USMCA Ratification: Will Article 19.17 (the “230 Clause”) be a Sticking Point?
Neither Canada nor the US has ratified the signed USMCA/CUSMA Agreement (Mexico has done so). Canada has said that it will not complete the ratification process until it is clear that ratification will pass the US Congress. Neither party wants to see substantial change since this could threaten to unravel the delicate balance of concessions and compromises. Congress is known for wanting a second bite at the cherry and House Democrats have declared that, among other things, they want to see stronger labour and environmental protection built into the Agreement. The Section 230-like language in Article 19.17 of the USMCA is unlikely to derail ratification; if ratification is not achieved it will be because of other issues. On the other hand, removing or further weakening Article 19.17 could be rolled into a larger package of pre-ratification amendments that may be required to get USMCA/CUSMA legislative approval. If that is the case, I doubt that the Canadian government would object. I certainly hope it would not since it is not in Canada’s interest to bring in a flawed and outdated provision that has led to widespread abuses on the internet and to an almost total abdication of responsibility by major internet platforms.
While an agreement such as the USMCA/CUSMA must have the force of a treaty in order to bind trade commitments, it should not limit lawmakers’ ability to modify laws that go well beyond trade and commerce. Section 230 should never have been part of the USMCA/CUSMA negotiations. USTR seems to have been stampeded into advocating for inclusion of Section 230-type language in the Agreement, and may regret doing so. Fortunately for Canada, the commitment is worded in such a way that Canada has considerable flexibility in how to apply Article 19.17, and there are limitations and overrides allowed in the public interest. As the debate in the US unfolds, there will undoubtedly be further revisions to the law. One hopes that there is sufficient flexibility in the USMCA/CUSMA language to accommodate the changes that will inevitably be coming to Section 230 of the CDA.
© Hugh Stephens, 2019. All Rights Reserved.