TR Daily Pallone, Walden Oppose Internet Intermediary Liability Shield in USMCA
Tuesday, August 6, 2019

Pallone, Walden Oppose Internet Intermediary Liability Shield in USMCA

House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.) and ranking minority member Greg Walden (R., Ore.) today urged the Office of the U.S. Trade Representative not to incorporate liability immunity for Internet intermediaries regarding third-party content into the U.S.-Mexico-Canada Agreement (USMCA), because the domestic safe harbor for such content under federal law has become controversial in recent years, with proposals for modifying or curtailing it under discussion.

In a letter to USTR Robert Lighthizer, Chairman Pallone and ranking member Walden said that they are concerned that section 19.17 of the USMCA “mirrors” section 230 of the Communications Decency Act, which says that no provider of an interactive computer service will be treated as the publisher of third-party content that it hosts or transmits.

“As you may know, the effects of Section 230 and the appropriate role of such a liability shield have become the subject of much debate in recent years. While we take no view on that debate in this letter, we find it inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing. For that reason, we do not believe any provision regarding intermediary liability protections of the type created by Article 19.17 are ripe for inclusion in any trade deal going forward. Given that our committee closely oversees Section 230 and all portions of the Telecommunications Act of 1996, we also hope in the future the Office of the United States Trade Representative will consult our Committee in advance of negotiating on these issues,” Reps. Pallone and Walden wrote.

Proposals and arguments for modifying section 230 cover a wide range of issues.

Rep. Walden himself has suggested that the Internet has outgrown the need for section 230 and Congress should reconsider it. “Online platforms are now major venues for communication and commerce, and not just in the United States but around the world. But Section 230 was also supposed to be about responsibility. With a liability limitation in their backpocket, we increasingly see the tech giants wield their power at the wrong targets,” Rep. Walden said at a hearing earlier this year (TR Daily, March 12). “When will this subcommittee seriously consider the role of the edge providers either as common carriers in the Internet age, or how they are the ones with business models that use our data for their profits? If you’re going to ‘protect’ consumers online, should those online protections apply to the whole internet ecosystem?” he added.

During the recent Members Day hearing before their committee, Rep. Ed Case (D., Hawaii) urged changes to section 230, saying that the immunity from liability for third-party content allows online platforms “to knowingly facilitate law-breaking behavior by hiding behind section 230.” Specifically, he expressed concern about ads on the platforms for Illegal short-term vacation rentals that don’t pay hotel taxes and “completely distort our already sky-high housing market” (TR Daily, July 25).

Among the recent arguments for changing section 230 is Sen. Ted Cruz’s (R., Texas) suggestion during a hearing on possible “censorship” by Google through its search results (TR Daily, July 16) that large technology platforms might be too protected by section 230. “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,” he said during the hearing. “Section 230 gives tech companies special privileges that nobody else gets.”

During a recent hearing on online child protections (TR Daily, July 9), Senate Judiciary Committee Chairman Lindsey Graham (R., S.C.) suggested that online platforms should have to earn section 230’s protections against liability from third-party exploitive actions or illicit content by adopting “best business practices” regarding online child protection.

Sen. Josh Hawley (R., Mo.) has offered a bill that would make the section 230 safe harbor dependent on an Internet intermediary’s submitting to an audit by the Federal Trade Commission “that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral,” according to a press release from the senator’s office (TR Daily, June 19).

Among lawmakers who have argued in defense of Section 230 in its current form are Sen. Ron Wyden (D., Ore.) (TR Daily, March 19), one of the authors of legislation that became the CDA when he was in the House, and Rep. Ro Khanna (D., Calif.) (TR Daily, July 12). —Lynn Stanton, [email protected]

MainStory: FederalNews Congress InternetIoT

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