I will confess, I never expected to write about Donald Trump’s lost war against Section 230 of the Communications Decency Act again in December. While there is a real desire for reform on both sides of Capitol Hill, Trump’s interest in the law has always seemed more overwhelming. The President and his devoted allies a surprising amount of time and energy to the problem in the perspective of the election, in the middle of a pandemic, Not less. I thought they must have perceived a hidden electoral advantage in criticizing the law which grants companies legal immunity for user-generated content.
Looking back, I may have given the president too much credit for his strategic thinking. It appears Trump really believes in his own distorted propaganda about Section 230 – namely that the law unfairly allows platforms like Twitter to evade the labeling or deletion of his messages spreading lies on the Internet. election, among other offenses. (He does not. If anything, the law allows Twitter to host Trump’s tweets without fear of being sued for their content.) Tuesday night, Trump ad that it would veto the upcoming National Defense Authorization Act, which provides hundreds of billions of dollars to fund the United States military, if it did not include the repeal of Section 230. I hardly need to tell you where he made the announcement: Twitter, of course. The next day, his press secretary insisted at a press conference that the president was serious.
Trump has targeted Section 230 before, but this is by far the most serious escalation. Past threats have been limited to “REPEAL SECTION 230” tweets and legally fragile executive orders. Now, for the first time, Trump is demanding specific legislation from Congress and threatening to use his very real veto power to get what he wants. All of this puts the Trump administration’s stance on Internet immunity on a collision course with another powerful political player: the Trump administration.
You see, for all of Trump’s stated opposition to Section 230, his administration’s own trade deal with Mexico and Canada – the United States-Mexico-Canada Agreement, or USMCA – specifically includes a version of the same law. The deal, which took effect over the summer, prohibits signatory countries from adopting measures that would hold an interactive IT department accountable for content created by others. The inclusion of this provision was seen as a huge victory for lobbyists in Silicon Valley. It’s easy to see why: Tech companies like to be free from liability, and as they do more and more business outside of the United States, they want to make sure they’re protected from harm. costly disputes in other countries. (House Democrats belatedly and unsuccessfully has tried to remove the provision last year.) Even now, despite Trump’s public assault, the United States is pushing for the same type of provision in the post-Brexit trade deal it is currently negotiating with the UK. United.
I know I know. Hit me with a feather, the Trump administration is behaving hypocritically. But the conflict actually raises an interesting legal question: Given our commitments under the USMCA, could Congress repeal or amend Section 230 even if it wanted to? Some observers have suggested that this is not possible. “Big Tech has already solved this potential problem, in ways they may not like,” wrote David Dayen. in the American prospect in June. “The addition of the section 230 style provision to USMCA created a huge hurdle.”
But according to the experts I spoke with, the hurdle might not be that huge after all. Yes, as part of the new trade agreement, the United States has committed to preserving Section 230 immunity. But unlike past trade agreements, USMCA does not give companies or investors an opportunity to sue. justice to enforce the provisions, apart from a small set of exceptions. It sounds a lot like a right without a remedy.