Now That USMCA Is In Effect... Can Congress Even Reform Section 230 Without Violating The Agreement?

from the oh,-look-at-that dept

It seems like every other day we see yet another proposal to dismantle, revoke, or otherwise undermine Section 230 of the Communications Decency Act. But doing so might actually create massive international problems. That's because, as you may recall, despite some last minute attempts to remove it, the final USMCA retained language that suggests that any signatory to USMCA must have Section 230-like laws in place to protect intermediary liability. And, while it got surprisingly little attention, the USMCA went into effect last week. And thus, any change to Section 230 may raise at least some questions about whether or not they violate the agreement.

Now, there are limitations to this provision, but it's interesting to see some people pulling their hair out that "big tech" has already blocked any possible changes to 230 via the USMCA:

But it’s hard to invest much energy in what the optimal Section 230 framework would be, since Big Tech has already solved this potential problem—in a way only they can love. Years ago, they succeeded in getting a Section 230-style provision into the reworked NAFTA, the U.S.-Mexico-Canada Agreement (USMCA). And practically everybody now incensed by the Section 230 legal immunity willingly voted to implement it in that trade agreement. That makes it much, much more difficult to change it in any way.

I find this framing fairly hilarious if you know anything about the history here. As detailed in the excellent book, Information Feudalism, it was actually the big legacy "intellectual property" industries, starting with the big pharmaceutical companies and followed quickly by Hollywood, that pushed to include things like copyright and patent rights in international trade agreements. As we've described, those industries have long focused on this form of policy laundering to get what they want.

Indeed, the DMCA itself wouldn't exist without this process. As one of the architects of that law, Bruce Lehman, publicly admitted years ago in the 1990s, when Congress refused to create a DMCA-like law, he helped architect a plan to "run to Geneva" and get the 1996 WIPO Copyright Treaty signed, which "obligated" the US Congress to then create a DMCA-like law.

I have long found this whole process to be rather disgusting: leveraging backroom deals in trade agreements, that are negotiated out of sight of the public (or public interest organizations), with heavy input from industry, and then turning around and insisting that Congress must then abide by the restrictions in those agreements or face concerns that we're not living up to our "international obligations" (the favorite phrase of those laundering policy in this manner).

It is all a big scam, of course, but since everyone else played that game in order to attack the internet, is it really any surprise that internet companies eventually sought the same sort of protections via trade agreements as well?

So, 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 (which is often being driven by behind the scenes support from Hollywood), suddenly realizing that they now are facing the exact same game plan that they spent decades pulling against the internet.

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Filed Under: intermediary liability, international obligations, section 230, trade agreements, usmca


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  • identicon
    Anonymous Coward, 9 Jul 2020 @ 2:07pm

    reply to this | link to this | view in chronology ]

  • icon
    xebikr (profile), 9 Jul 2020 @ 2:43pm

    Ha Ha!

    Live by the supplantation of democracy by trade agreements, die by the supplantation of democracy by trade agreements!

    reply to this | link to this | view in chronology ]

  • icon
    Richard M (profile), 9 Jul 2020 @ 2:49pm

    Why Big Tech?

    Big Tech are not who create the laws. The Govt does that...

    Yes Big Tech and well Big pretty much big everyone bribes the politicians to make laws they like but the politicians do not have to sell out the people they are supposed to representing and accept those bribes.

    I have never really understood why the big corporations are more at fault for giving out bribes than the politicians are for accepting them.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 9 Jul 2020 @ 3:37pm

      Re: Why Big Tech?

      "I have never really understood why the big corporations are more at fault for giving out bribes than the politicians are for accepting them."

      That the situation exists is deplorable, and each should be equally culpable. But it is in fact easier to decry the corporations than the politicians as the politicians have their elections to support them (no matter how many 1st Amendment protected lies they told to get into office, nor how much they received in bribes a.k.a. campaign contributions, nor how much they then favor the corporations rather than their constituents). Whereas the corporations have only the support of their stockholders who are more interested in the profits and growth they can produce, no matter how they are achieve, rather than their morality or integrity.

      This might change when the screaming minority (a.k.a. mob rule even if it is minority mob, if they are loud enough) engages upon some slight or another they perceive. But until that screaming minority focuses on the problem rather than the symptoms, and the non screaming majority wakes up and realizes the downside to those 'contributions' (a.k.a. take money out of politics) will any effective change take place.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 10 Jul 2020 @ 1:45am

        Re: Re: Why Big Tech?

        "But it is in fact easier to decry the corporations than the politicians..."

        Yes and no. There's just no getting around the fact that the corporations are private entities accountable to their owners whereas the politicians are accountable to us.

        When it comes to a corporation I can vote with my wallet and boycott their services - unless of course they've gotten themselves a monopoly - but if the guy I've already voted FOR takes a bribe and starts repaying it then there's no question in my mind about who the smellier rat is.

        Taking money out of politics is a good start but that still won't change much. What we really need is for the public to start taking an interest and when they find their candidate's misbehaved, sack his/her ass and end his/her career in politics.

        reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 13 Jul 2020 @ 5:02pm

          Re: Re: Re: Why Big Tech?

          What we really need is for the public to start taking an interest and when they find their candidate's misbehaved, sack his/her ass

          Which is why, here in Volusia, we have lengthened the county council terms to 4 years. etter opportunity to forget, for the public, and more time to make those all-important contributions, for Con-Tom and ICI and the Frances.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jul 2020 @ 4:26pm

    Live by the copyright trade agreement, die by the copyright trade agreement.

    It's horrible this is how things work where democracy can be supplanted by trade agreements and then forced to adopt otherwise unfavorable policy because we "have to uphold our international obligations" but this is one case where I have to smile at the irony of it all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jul 2020 @ 4:54pm

    Wow that Prospect article is pig-ignorant and shit-awful.

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 10 Jul 2020 @ 7:09am

    Not to mention...

    The irony that if President Trump hadn't insisted on renegotiating the "broken" NAFTA treaty, USMCA never would have happened in the first place.

    reply to this | link to this | view in chronology ]


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