The modern web-based internet turned 30 this year and by all accounts it’s having a mid-life crisis.
For all the wonders it has brought – like the boom in commerce and communications and straight-out-of-Star-Trek navigation and translation tools – there have been big costs as well. You only have to glance at the nation’s empty local newsrooms or dip a toe into the toxic swirl of trolls, extremists and other bad actors polluting dominant internet platforms to see it.
Some of this was inevitable, but far less than some claim. We made decisions in the 1990s about the legal rules governing the internet that helped create the world we live in today. We got some things right, but elsewhere we can do better.
Fortunately, the rules governing the internet aren’t written in stone. Yet . . . (more on that later).
There is a growing bipartisan consensus in Congress that “safe harbor” laws like Section 230 of the Communications Decency Act – which shields internet platforms from liability for third-party content on their services – are too broad.
Enacted over two decades ago, CDA 230 makes it almost impossible to hold platforms responsible for abuses and even crimes they facilitate. Congress hoped that exempting those early access providers, message boards, and other newborn web services from responsibility for their users’ actions would speed their way to grow into something greater.
The breadth of the exception was unusual – it’s an ancient principle to hold people and businesses fairly responsible for the harm to others they cause or facilitate. But in those heady days, CDA 230 seemed a modest concession, applied to a small and very new corner of the world – a fair trade for the wonders to come.
What started as a small exception for an infant industry has become an unprecedented free pass from responsibility for the wealthy and powerful. This sweeping immunity is now central to most of the big debates underway today about mitigating online harms, including efforts to deal with election attacks, online radicalization, opioid sales and even the illicit antiquities trade.
The push to revise CDA 230 is welcome. While such broad protection made some sense in the 1990s, the internet is fully grown. This immunity now mostly protects the biggest, most powerful corporations on the planet from the basic responsibilities that all other people and businesses bear. Surely, we can preserve the great apps, connections, and opportunities instant global connectivity provides without tolerating an environment we would never accept offline.
Congress appears to agree. Last year it took its first step to rein in Section 230 by limiting its protections for enabling online sex trafficking. Now, members from both sides of the aisle including Speaker Nancy PelosiNancy PelosiMoulton drops out of presidential race after struggling to gain traction Conservatives push Trump tariff relief over payroll tax cuts Democrats press FBI, DHS on response to white supremacist violence MORE (D-Calif.), Sens. Josh HawleyJoshua (Josh) David HawleyRepublicans face critical test of integrity on drug price controls Hillicon Valley: Facebook releases audit on bias claims | Audit fails to calm critics | Federal agencies hit with fewer cyberattacks in 2018 | Huawei founder says company faces ‘live or die’ moment Facebook releases audit on conservative bias claims MORE (R-Mo.), Richard Blumenthal (D-Conn.), Lindsay Graham (R-S.C.) and Marsha BlackburnMarsha BlackburnTaylor Swift defends staying out of the 2016 election: ‘I just knew I wasn’t going to help’ The 23 Republicans who opposed Trump-backed budget deal Senate passes sweeping budget deal, sending it to Trump MORE (R-Tenn.) are expressing growing concern with the law in hearings, speaking opportunities, interviews and more.
But those healthy debates are only meaningful if policymakers are genuinely free to revisit flawed rules. CDA 230 absolutists are lobbying feverishly to make this impossible by writing the current flawed version of the law into new U.S. free trade agreements. That would seriously limit U.S. lawmakers’ ability to amend the law here at home.
FTAs can require countries to change their laws or risk losing trade benefits. This is a fearsome stick Silicon Valley giants are eager to wield to defend today’s CDA 230 at home and spread it to other countries.
Troublingly, they’ve already succeeded in securing new CDA 230-like provisions in the USMCA and as part of the U.S. government negotiating position on the upcoming World Trade Organization E-Commerce Paper.
Fortunately, bipartisan leaders in Congress have awoken to this attack on their authority and the ongoing review of CDA 230. House Energy and Commerce Committee Chairman Frank Pallone (D-N.J.) and Ranking Member Greg WaldenGregory (Greg) Paul WaldenOutdated safe harbor laws have no place in trade agreements Trump officials propose easing privacy rules to improve addiction treatment Lawmakers call on Trump to keep tech legal shield out of trade talks MORE (R-Ore.) recently warned the U.S. Trade Representative not to include CDA 230 in future trade deals saying: “we find it inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing.”
Reps. Pallone and Walden should be applauded for their leadership – and more of their colleagues in Congress should join them. It strains credulity that the U.S. government would demand its trading partners enact a law that is being actively reconsidered by House and Senate leaders.
The internet has improved and enriched our lives in immeasurable ways, and the sky is the limit for its next 30 years. But we must learn from the past and write smarter, fairer rules to make it a home for innovation, communication, commerce – and safety and accountability.
U.S. and global policymakers must be free to do so, unshackled by bad trade deal provisions that bind their hands and perpetuate past mistakes.
Mark Schultz co-founded the Center for Protection of Intellectual Property (CPIP) at George Mason University and is currently a professor at Southern Illinois University School of Law.
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