With Congress embroiled in a fracas over impeachment, the United States-Mexico-Canada Agreement (USMCA) — commonly referred to as “NAFTA 2.0” — has lingered in limbo.
Its supporters largely remain unsure of when, or even if, it’ll get the proverbial School House Rock treatment.
The USMCA, like most trade deals, is expansive and contains carve-outs for various industries.
One such provision is Article 19.17 which prohibits “any action taken to enable or make available the technical means that enable an information content provider or other persons to restrict access to material that it considers to be harmful or objectionable.”
Essentially, the provision prohibits the countries involved in the trade deal from implementing policies that render tech platforms liable for the use or misuse of their products. Sen. Ted Cruz (R-TX) took issue with this in a letter to U.S. Trade Representative Robert Lighthizer.
Cruz, however, is not the first member of Congress to take this stance.
After noting his appreciation for the president’s focus on trade, Cruz said, “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 our trade agreements would be a mistake.”
Should Section 230 be entirely repealed in U.S. statute, and this language codified within the trade deals, Cruz is concerned that the U.S. would be in a position of violating its own trade deals.
In Cruz’s estimation, it would be better to not adopt them in the first place.
Pointing to various instances of what he — and many other conservatives — see as biased censoring of their platforms, Cruz stated, “From Twitter locking the account of Senate Majority Leader Mitch McConnell’s campaign to YouTube demonetizing a conservative comedian’s account following pressure from the left, the examples of censorship are as disturbing as they are numerous.”
Cruz concluded, adding, “I request that you remove Article 19.17 from the USMCA, remove Article 18, Section 2 and 3 in the U.S.-Japan Trade Agreement, and refrain from including similar language in future trade agreements.”
The language stems from Section 230 of the Communication Decency Act of 1996. Section 230 prohibits internet content platforms — such as Twitter, Facebook, or YouTube — from being held legally responsible for what is said on their respective sites.
It’s worth underscoring that Cruz specifically mentioned in his letter that politicians on both sides of the aisle are considering an outright removal of Section 230 from statute.
Section 230 is a significant reason why burgeoning internet companies have decided to plant their roots in the United States since the law was established. No other country has a provision like Section 230 and tech companies see it as an attractive policy compared to measures such as the European Union’s regulations on personal data processing or codifying liability for “illegal content.”
But some believe tech companies have abused this provision, engaging in censoring speech or views with which they disagree.
Cruz and other Republicans, most notably Sen. Josh Hawley (R-MO), have pressed tech companies on their policies and procedures surrounding banning or demonetization of right-of-center content creators. Some Republicans see Big Tech’s actions as an impropriety in the policing of objectionable content from the right compared to the left.
Cruz fears the highlighted provision in the USMCA would prevent the government from oversight of platforms who punish their users with different political beliefs.
Meanwhile, since the 2016 presidential election, Democrats have zeroed in on Facebook, accusing the social media giant of allowing Russian interference in the election.
Platforms — facing a political barrage from both flanks — have maintained their insistence on keeping with the spirit of Section 230.
Some progressives have taken it even further in explicitly pushing the adoption of anti-“hate speech” laws and terms of service. In their minds, the tech companies are not going far enough in regulating, and ultimately censoring, what is said online.
An example is the demand to punish sites for permitting “hateful” virtual rhetoric that some insist contribute to real-life violence — such as the call, which eventually succeeded, to end 8chan after the El Paso shooting.
Sen. Elizabeth Warren (D-MA), a leading Democratic presidential contender, has even gone so far as to propose “breaking up” Facebook.
The overarching debate ultimately rests on whether social media companies are “publishers” or “platforms” in the eyes of the law. The difference being that publishers can be held legally responsible for what is said on their product while platforms cannot.
Social media companies such as Twitter and Facebook were started explicitly as platforms.
But since they have begun to police the content on their sites (i.e. suspending and banning those who violate their “terms of service” or weighing the algorithms to bury right-of-center news and opinions from timelines), some believe they’re acting as de facto editors that would operate at a publication.
Cruz and others see this as a breach of the contract established by Section 230.
A Cruz spokesperson said the Senator is “considering all options” on the statute and hasn’t yet decided where he stands. He is, however, decidedly opposed to it being a part of the looming trade deals.
Should the U.S. Trade Representative act on Cruz’s request, the language in the USMCA and U.S.-Japan Trade Agreement would be removed and using such language would be abstained from in future agreements.
But with it now reported that Congress will pass yet another continuing resolution to avert a partial government shutdown and the escalating drama of impeachment proceedings taking center stage, the USMCA and debate over its provisions may well be pushed aside once again in favor of objects of a shinier disposition.
Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.