Neil Turkewitz
Aug 31, 2018 · 6 min read

NAFTA: Preserving the Status Quo & Inviting a Future That We Are Incapable of Shaping

By Neil Turkewitz

In June of 2010, Ed Black, President & CEO of the Computer & Communications Industry Association (CCIA), Gary Shapiro, President & CEO of the Consumer Electronics Association (CEA) and Phillip Bond, President & CEO of TechAmerica, wrote to US Trade Representative Ron Kirk to express their concerns about certain proposals being considered in ACTA. They warned against: “becoming enmeshed in secondary liability and other highly contentious issues surrounding digital copyright enforcement. Many of these unresolved issues involve numerous legitimate domestic interests, and are simply not ripe for international agreement.” Senator Ron Wyden supported their cause, writing in his own letter to Ambassador Kirk: “I understand that the office of the USTR has indicated that no agreement would be made that would require a statutory change to U.S. law. However, are you also reviewing negotiating proposals to ensure that no agreement would constrain the ability of the Congress to reform our domestic IPR laws?” He continued: “Are you taking any positions in the ACTA negotiations that, if successful, would commit the U.S. or any ACTA parties to obligations currently found under the Digital Millennium Copyrights Act?

Senator Patrick Leahy also intervened, writing: “any language in the text that addresses secondary liability for online service providers should be very general in nature to provide flexibility for Congress. This is one of the most hotly debated topics in intellectual property law, and an international executive agreement is not the proper place to resolve it — or to lock into place current standards or safe harbors.”

In short, eight years ago it was generally observed that whether you believed that more flexibility might be needed (CCIA et al, Wyden) or of the view that enhanced discipline might be a feature of our evolving legal approach to addressing online infringement (Leahy), it was essential to avoid locking Congress into a specific approach to issues of secondary liability given the likelihood of change to features of our legal framework for internet governance. So of course, this desire to avoid a static legal environment in a rapidly changing marketplace would be even greater today than it was in 2010 given the plethora of social, cultural and economic issues that have arisen and occupied the attention of the public and government. What was a thought back then — the possibility of legal reform to recalibrate the scope of obligations for internet platforms, is today more a question of how, not whether. Congress has already modified CDA Section 230 through SESTA/FOSTA, and the House Judiciary Committee and the Copyright Office have been involved in a multi-year examination of potential reform of Section 512 of the DMCA (safe harbors). Discussion of internet platform responsibility has, over these 8 years, gone from largely backroom debates between experts, affected industries (and partisans of course), to the everyday fodder of our newspapers and other media.

In light of this clear and palpable momentum for change, legacy actors (i.e. internet platforms) that profit from the current legal framework, and the trade associations and think tanks which they fund (e.g. EFF, PublicKnowledge, R Street) have stepped up to try to preserve the status quo, including what one would have thought unthinkable in light of the history of trade negotiations recited above — that is, to safeguard current laws like CDA Section 230 by including them in trade agreements — most notably at present, via inclusion in an updated NAFTA. I wrote about EFF’s cynical NAFTA play: “Exporting Section 230 to Mexico and Canada isn’t the only reason to advocate for its inclusion in a modernized NAFTA. This negotiation comes at a time when Section 230 stands under threat in the United States, currently from the SESTA and FOSTA proposals, which could escalate into demands that platforms also assume greater responsibility for other types of content. As uncomfortable as we are with the lack of openness of trade negotiations, baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.”

But EFF is hardly alone. R Street also weighed in on behalf of a coalition of organizations, most or all of whom represent or are funded by Google, including TechFreedom, Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), Engine, FreedomWorks, R Street Institute, CCIA & the Internet Association, making the case for inclusion of Section 230 in trade agreements.

Apparently no longer troubled by the notion of addressing secondary liability in trade agreements, these groups are deliberately trying to use trade as a shield against possible action by Congress, and it looks like they may be succeeding. In the recently released UNITED STATES — MEXICO TRADE FACT SHEET, USTR noted the following feature of the proposed accord: “Limit the civil liability of Internet platforms for third-party content that such platforms host or process, outside of the realm intellectual property enforcement, thereby enhancing the economic viability of these engines of growth that depend on user interaction and user content.” That’s right, Section 230. Of course, the devil is in the details, but this is a very troubling sign and members of Congress should reject this naked attempt to limit US sovereignty and the flexibility needed to ensure that our laws can evolve alongside emerging threats.

This goes way beyond the question of whether Section 230 is a sensible approach to take. I believe it is not, and fully endorse the views put forward earlier this year by Kevin Madigan of the Center for the Protection of Intellectual Property (CPIP) at Antonin Scalia Law School. He wrote: “The internet was in its infancy when NAFTA was negotiated in the mid 90s. But the internet was also in its infancy when Section 230 was enacted. Instead of inserting into NAFTA overly broad safe harbors that were shaped over two decades ago — and have been exposed as deeply flawed — updates to NAFTA should strengthen web intermediary accountability in the digital age.

But let’s put the merits aside for a moment. Importing Section 230 into a binding trade agreement is just bad policy, period. It imposes a static legal framework on a rapidly changing world. Hey, if you don’t believe me, just listen to Senator Wyden, CCIA, CEA and TechAmerica — the 2010 version. While they were wrong on the merits, they were right about the process. Trade agreements by definition involve some dilution of national sovereignty. Having worked in the trade arena for thirty years, I support carefully considered agreements that may limit the scope of Congressional authority. But we have to be ever vigilant to ensure that these provisions advance the national interest, and that we both bind ourselves and our trading partners only when the equities are clear.

Section 230 is at the center of the storm in addressing platform accountability. Indeed, various members of Congress have openly suggested a rethinking of its principles, from Senator Graham to Senator Warner who recently published a comprehensive document with a series of potential legislative solutions. Senator Warner noted: “The size and reach of these platforms demand that we ensure proper oversight, transparency and effective management of technologies that in large measure undergird our social lives, our economy, and our politics…The hope is that the ideas enclosed here stir the pot and spark a wider discussion — among policymakers, stakeholders, and civil society groups — on the appropriate trajectory of technology policy in the coming years.

To lock in safe harbors at this time — either those in CDA Section 230, or Section 512 of the DMCA, is to invite a future that we are incapable of shaping. We’re at the dawn of internet governance 2.0. Why would we bind ourselves to the foundational principles of the beta version of governance? Some parties want to ensure that Congress can’t meaningfully engage in the discussion of “the appropriate trajectory of technology policy,” or at a minimum, that some ideas are off the table. Do we really already know what we want to eat?

NOTE: the various documents referred to in this piece may be found here.

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