Section 230 Language Should Not Be Included in International Trade Agreements

Kassandra Cabrera – Section 230, the law that created the internet, has been the subject of intense bipartisan debate over the last few months. Despite disagreement over the law’s application, similar language has been placed in the U.S.’s international trade agreements between Mexico, Canada, and Japan. Why would a law at the center of constant debate between members of the U.S. Congress be extended across the world without first rectifying its complications?

Section 230 provides immunity for online service providers or website operators, acting as a host, for content posted by third parties. Congress’ purpose in passing Section 230in 1996 was to promote the growth of the Internet. Approximately two decades later, the Internet continues to expand in a way that was unimaginable in 1996.  Section 230 has been held to provide almost absolute immunity for online service providers that fail to fully regulate harmful content and/or conduct on their websites. Recently, Section 230 has been widely debated in terms of its application in the U.S. and its expansion abroad.

The United States has included language paralleling that of the language in Section 230 in two trade agreements—the United States-Mexico-Canada Agreement and the U.S.-Japan Trade Agreement. Including this language in trade agreements would expand American law globally and provide immunity for online service providers at home and abroad. On October 16, 2019, the Energy and Commerce Committee jointly with the Communications & Technology Subcommittee and the Consumer Protection & Commerce subcommittee held a hearing called: “Fostering a Healthier Internet to Protect Consumers.” The purpose of this hearing was to debate Section 230’s application at home and abroad. There are several potential consequences, both positive and negative, of allowing Section 230 to infiltrate U.S. trade agreements.

Proponents of including Section 230 language in trade agreements argue that including the provision promotes the growth and expansion of the internet. Specifically, Section 230 language allows internet businesses of all sizes to expand and successfully operate. Thus, the language is particularly helpful for small tech companies hoping to profit and expand worldwide. Additionally, while opponents to the expansion argue that inclusion of the language would bind Congress despite the law’s application being unsettled, including it in trade-agreements does not bind Congress. Congress is able to amend the provision later if it chooses to do so.

Opponents argue that before expanding Section 230 to a global scale, the law should be debated and settled in the United States first. A quick look at the recent debate surrounding Section 230 as well as an analysis of the case law is evidence of the law’s unsettled nature. Moreover, opponents argue that including Section 230 language in trade agreements would extend American law globally while also giving big-tech giants extensive power. As mentioned, online service providers have been found to have relatively unfettered immunity in the United States. Extending these privileges globally without providing some kind of check on the conduct of these internet companies will promote the growth of the internet; however, its growth may come at the expense of internet users.

The inclusion of Section 230 language in trade-agreements would certainly aid the growth of several internet companies, thus, positively affecting the global economy. However, the application of Section 230 at home in the United States has been inconsistent with the original purpose of its creation and has been the subject of intense debate for some time. Online service providers, including big-tech companies like Facebook, Twitter, and Reddit, operate practically immune from civil suit despite flagrant and reckless disregard for user safety. Without first remedying the misapplication of Section 230 at home—by finding a way to hold online service providers liable for failing to take reasonable precautionary and protective measures—the law should not be included in international trade-agreements.

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