THE TTALK QUOTES 

On Global Trade & Investment
Published By:
The Global Business Dialogue, Inc.
Washington, DC  Tel: 202-463-5074
 
No. 71 of 2019
WEDNESDAY, NOVEMBER 6, 20219

Click HERE for Monday's quote from Boris Johnson.


NO TO SECTION 230 IN TRADE AGREEMENTS

 "[I]t is inappropriate to commit the United States in the USMCA, the U.S.-Japan Trade Agreement, or any other trade agreement, to continuing to provide special protections to big tech." 

Sen Ted Cruz
November 1, 2019
CONTEXT
Today’s featured quote is from a letter Senator Cruz sent to USTR Robert Lighthizer last Friday. Its basic message is similar to a letter two House leaders sent to Ambassador Lighthizer in August. Senator Cruz chairs the Senate Judiciary Committee’s Subcommittee on the Constitution. The authors of the House letter were the chairman and ranking member of the House Committee on Energy and Commerce, namely, Chairman Frank Pallone (D) of New Jersey and Ranking Member Greg Walden (R) of Oregon. 

As Senator Cruz explains in his letter, both USMCA and the new digital agreement with Japan mirror the language of Section 230 of the Communications Decency Act of 1996. For example, the relevant section of the digital agreement with Japan states that:

“… 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” etc.

And further that:

“ No Party shall impose liability on a supplier or user of an interactive computer service on account of: (a) any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material that is accessible or available through its supply or use of the interactive computer services and that the supplier or user considers to be harmful or objectionable ."

There is little to be gained from trying to paraphrase the clear language of Senator Cruz’s letter. Here then are some extended quotes from that letter, emphasis added: 

American trade deals should reflect settled American law, values, and customs. They should not contain provisions that are the subject of ongoing debate. That is what [why] I ask that you remove Article 19.17- an Article that mirrors Section 230 of the Communications Decency Act- from the United States-Mexico-Canada Agreement (USMCA). I also ask that you remove similar language: Article 18, Section 2 and 3 in the U.S.-Japan Trade Agreement, and refrain from including such language in future trade agreements. With members of both the Senate and House of Representatives seriously considering whether to amend or eliminate Section 230' s grant of immunity because big tech is not living up to its end of the legislative bargain, I believe that enshrining it in the Agreement would be a mistake.

Section 230 of the Communications Decency Act provides technology companies with immunity enjoyed by no other industry: a near-blanket legal immunity for the third-party content that they host on their platforms. Congress granted this immunity when the internet was still young and as part of a bargain to aid the developing industry. In exchange for this immunity, however, Congress expected that tech companies would carry others' speech without favor to any specific viewpoint, and would keep defamatory and other unlawful speech off their platforms.

That bargain no longer seems to hold. Big tech companies have become some of the most powerful censors the world has ever seen. They routinely censor lawful--overwhelmingly conservative- speech with which they disagree. From Twitter locking the account of Senate Majority Leader Mitch McConnell 's campaign to YouTube demonetizing a conservative comedian' s account …

Given this growing willingness to hold big tech companies to the same standards as other content publishers, it is inappropriate to commit the United States in the USMCA, the U.S.-Japan Trade Agreement, or any other trade agreement, to continuing to provide special protections to big tech. Yet that is exactly what the inclusion of language mirroring Section 230 does. It commits the United States to staying the course with a policy that is not working for the American people. Indeed, if this language remains in these trade agreements, elected officials will face a terrible dilemma: either abandon efforts to hold big tech companies accountable, or revise Section 230 and put the United States in breach.

COMMENT
We don’t know what is coming next. We would like to see USMCA approved, with or without the language discussed above. That said, our sense is that this issue is not going away. Though Senator Cruz talks about conservative speech being censored, he quotes Speaker Pelosi , who also seems to have concerns about how the big tech companies have used the power given to them in Section 230. 

As for the conservative side of the debate, the top story in today’s Daily Signal from The Heritage Foundations was right on topic. It highlighted a comment by a doctor, which, they said, YouTube took down as “hate speech.” The statement was from Dr. Michelle Cretella , Executive Director of the American College of Pediatricians, and it was this:

“[I]f you want to cut off a leg or an arm, you’re mentally ill, but if you want to cut off healthy breasts or a penis, you’re transgender.”

Our principal business, of course, is trade policy. The Section 230 issue discussed here is now clearly a trade policy issue, and a big one. But it points to something even larger. 

We have come a long way from the days when trade policy was tariff policy and not much else. No one doubts the continued importance of tariffs – President Trump has seen to that – but it is undeniably the case that the trade policy circle has expanded to included much, much more over the last several decades. Theoretically at least, there are costs to that. In other words, to the extent that an ever-expanding set of policies are linked to market access and the functioning of supply chains, the ability of Members of Congress to adapt to changing circumstances is diminished as changes come with new penalties.

Returning to the issue at hand, the key question, of course, is how will the Section 230 issue affect Congress’s consideration of USMCA? We don’t know. All we can do is try to follow the issue as it develops.

As for the parallel language in the agreement with Japan, our understanding is that that will be made effective through an executive agreement. More to the point, the digital agreement is separate from the market access agreement. There may be some advantage to that, perhaps even a precedent. The advantage is that, at least with respect to Japan, Congress would seem to be free to go in a new direction vis-à-vis tech platforms like Facebook and YouTube without impacting trade flows.

SOURCES & LINKS
A LETTER TO AMB. LIGHTHIZER is a link to Senator Cruz’s November 1 letter to the USTR urging him to drop the Section 230-like digital trade provisions from USMCA and other agreements.

ARTICLE 19.17 OF USMCA is a link to this provision of the United States-Mexico-Canada Agreement.

DIGITAL TRADE AGREEMENT WITH JAPAN , takes you to the text of this agreement, including, of course, Sections 2 and 3 of Article 18 of the Agreement, referenced in Senator Cruz’s letter (op. cit.)

FROM REPRESENTATIVES PALLONE AND WALDEN is the text of the letter on this same topic that the Chairman and Ranking Member of the House Commerce Committee sent to Ambassador Lighthizer on August 6, 2019. That was the subject of the August 22 TTALK Quote .

A YOUTUBE TAKE DOWN is a link to the above cited story from The Daily Signal.

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