Rep. Frank Pallone
and
Rep. Greg Walden
are respectively the Chairman and Ranking Member of the House Committee on Energy and Commerce. In many ways they are very different. Representative Pallone is a progressive Democrat who has called for the impeachment of
President Trump
. Representative Walden is the lone Republican in Oregon’s Congressional delegation. And their districts are quite different. The 6th Congressional District of New Jersey is compact and strongly Democratic. Hillary Clinton won there in 2016 with 56 percent of the vote. By contrast, the 2nd Congressional District of Oregon is enormous – the 7th largest in the country – intensely rural, and strongly Republican. Donald Trump won there in 2016 with 57 percent of the vote.
All of that said, Chairman Pallone and Ranking Member Walden share responsibility for those issues that are within the jurisdiction of the Committee on Energy and Commerce. One of those issues is the special treatment accorded to certain technology companies by
Section 230 of the Communications Decency Act
, itself part of the Telecommunications Act of 1996. Messrs. Pallone and Walden may have different views on how Section 230 should be amended (if at all). We don’t know. Their letter simply refers to “serious policy discussions.” They have stated quite clearly, however, their shared belief that the language of that statute should not be replicated in the agreement to replace NAFTA, namely USMCA.
This entry is really about those issues that are buzzing around the USMCA like flies at a picnic. In a sense, the challenge for those who want to see Congress approve the USMCA is to find a way to clear away the flies so that the picnic can be enjoyed and the agreement ratified. We shall come back to that in the Comment section. First, however, we need to say a word or two about the internet etc. In their letter to Ambassador Lighthizer, Representatives Pallone and Walden explain that “Section 230 shields on-line platforms from some of the liability associated with third-party content posted on those platforms.” The key sentence in the Act is this:
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.
Letters like the one we are discussing today don’t usually include footnotes, but this one did. There are three of them. One gives the citation to the relevant provisions of the USMCA. The second is the citation to the 1996 law at issue. And the third references an article from the magazine
Wired,
with the title
The Most Important Law in Tech Has a Problem
. The article opens with the announcement that Airbnb has defensively sued a number of jurisdictions from Anaheim to New York because those locales had attempted to hold Airbnb accountable for illegal listings. And what did Airbnb argue? Section 230 of the Communications Decency Act. They are not liable for the postings of others.
But there is another Section 230 issue, one that, politically, would seem to be even more contentious. Among the many who are not happy with the status quo are those who believe that the major tech companies are behaving more like editors – weeding out what the don’t like, promoting what they do – than simply like neutral providers of electronic platforms. The elements of that argument were on display last month at a Senate hearing chaired by Senator
Ted Cruz
(R-Tx). This passage from Senator Cruz’s opening statement sets up the argument:
SENATOR CRUZ
One thing is certain. Congress never intended to empower large technology companies to control our speech when it passed Section 230 of the Communications Decency Act. That provision, Section 230, gave tech companies special privileges that nobody else gets. If the New York Times or The Wall Street Journal were to publish an op-ed that libeled a private citizen, they can be held responsible. This is the case even when those organizations don’t write the content that breaks the law. They can be held responsible merely for publishing it. Not so for companies like Google and YouTube.
If someone uses one of those services to commit slander or to transmit classified material, or to traffic guns or drugs, far too often Google is off the hook. Section 230 makes it immune. Big Tech gets a perk, a subsidy, that no one else does. Fox News, MSNBC, or anybody else.
This immunity, however, was part of a deal. It was a trade. Section 230, the text of it, refers to the internet as “a forum for a true diversity of political discourse.” That was the trade at the heart of Section 230. This is because we expected tech companies, in the business of carrying others’ speech, wouldn’t favor any side when they did so. There wouldn’t be a conservative internet and a liberal internet. There’d just be the internet. That bargain today is falling apart. … I believe it’s time to re-think that deal.
The fact that Google and YouTube came in for special attention was to be expected. The title of the hearing was “Google and Censorship Through Search Engines” and the lead witness was Google’s vice president for government affairs and public policy,
Karan Bhatia.