Section 230 Should be in Our Trade Agreements. Here’s Why.

By Robert Winterton — October 15, 2019

Including American digital rules and regulations in trade agreements empowers American businesses to expand their reach internationally. The presence of Section 230 language in trade deals enables the U.S. to push back on foreign restrictions on speech and innovation, while lowering the costs of exporting for online entrepreneurs and making it easier for American small businesses to reach global customers. Trade agreements provide sufficient flexibility for Congress to continue to regulate in this area.

Yet some mistakenly hold concerns about the effect of putting Section 230 and other American internet rules into trade agreements.

So it’s time to clarify this misunderstanding.

Including Section 230 language in trade agreements…

1. Empowers American Businesses

Section 230 has transformed the ability for American entrepreneurs and small businesses to connect with markets across the country. Section 230 enables the unprecedented growth of user-created content — an internet where anyone can log on and produce their own content without needing to learn how to code a website.

Section 230’s clarity creates an environment where new online services and the businesses that use them had confidence that accessing online markets wouldn’t open them up to unnecessary liability and risk. With a few key exceptions for areas such as intellectual property and criminal law, the general rule is if user-created content broke the law, it is the person who posted that content and not the online service that is held liable.

Unfortunately, the law is not as clear in other countries making it harder for American businesses to expand to new markets. This uncertainty over who is liable for what online impacts hundreds of thousands of American small businesses who are looking to reach new customers overseas through user review websites and marketing platforms that depend on Section 230.

By including Section 230 in trade deals, the U.S. is providing greater certainty for entrepreneurs looking to expand their services abroad.

2. Spreads American Soft Power

Enshrining key American principles that created the modern internet in trade agreements with foreign nations will enable the United States to spread its economic influence in the digital age.

Other more authoritarian countries are pushing our allies to follow a very different example, with heavy internet regulations that constrain free speech and free enterprise.

By putting Section 230 in trade agreements, America is advancing its view of how the modern internet should work to our allies. Countries that enjoy the benefits of a free internet will be less influenced by foreign attempts to expand styles of government incompatible with free expression and free enterprise online.

3. Enshrines American Tech Leadership

The United States has a thriving internet ecosystem and has largely led the world in harnessing the internet’s potential. Under American leadership, the internet has become a place for free expression and free enterprise, creating millions of jobs and driving a digital trade surplus of hundreds of billions of dollars.

Our leadership in tech is no coincidence. The combination of America’s rich history of constitutionally guaranteed freedoms and smart internet regulation in the 1990s enabled us to create a tech industry and an internet economy unrivaled in the world. As a result, the American tech sector is uniquely successful.

By putting American internet rules in trade agreements, our tech sector will be empowered to further succeed internationally.

But Doesn’t This Prevent Congress from Amending Section 230?

Of course not.

Domestic opponents of Section 230 also oppose putting Section 230 language into trade deals. They claim that rules with which some elected officials have concerns shouldn’t be put into trade agreements, and if they are, then Congress won’t be able to amend the rules domestically.

These arguments are both wrong.

First, modern trade agreements must contain many rules and commitments due to the complexity of modern trade. Sometimes these rules are uncontroversial, but often they are not.

Yet whether rules are controversial or not says little about their importance for trade. Some examples of rules that can be domestically controversial but are included in trade agreements regardless are labor and environmental measures as well as copyright and trademark rules.

A large number of bills have been introduced in 2019 that in some way reference or amend copyright and trademark laws. Yet, many rightly argue that trade agreements should include these American IP laws so they are modern and work in America’s best interests, and that future agreements can be amended if domestic law changes.

The argument for including American rules on intermediary liability is similar. Over the next 10 years, Section 230 and associated rules will contribute over $440 billion to the U.S. economy.

Yet, regardless of their presence in trade deals, all U.S. internet laws can be amended by Congress. The digital language in both USMCA and the Japan trade agreement are particularly flexible, allowing for signatories to update digital intermediary laws (read: Section 230 here in the U.S.) particularly for protecting public morals and other public interest objectives.

The Trade Promotion Authority Act of 2015 also protects the supremacy of federal, state and local law over provisions in our trade agreements. Regardless of what is in USMCA or any future trade agreement, U.S. legislatures remain sovereign over the law in their respective jurisdictions.

The bottom line is that including Section 230 in U.S. trade agreements is a key driver of U.S. economic growth, is necessary to counteract foreign regulation of speech online, and will preserve Congress’s flexibility to deal with current and upcoming challenges on content regulation.