I will confess, I did not expect to still be writing about Donald Trump’s losing war against Section 230 of the Communications Decency Act in December. While there is some genuine desire for reform from both parties on Capitol Hill, Trump’s interest in the law has always seemed more instrumental. The president and his allies devoted a surprising amount of time and energy to the issue in the run-up to the election, in the midst of a pandemic, no less. I figured they must have perceived some hidden electoral advantage to criticizing the law that grants companies legal immunity for user-generated content.
In hindsight, I may have been giving the president too much credit for strategic thinking. It seems Trump really believes his own garbled propaganda about Section 230—namely, that the law unfairly allows platforms like Twitter to get away with labeling or suppressing his posts spreading lies about the election, among other offenses. (It does not. If anything, the law allows Twitter to host Trump’s tweets without fear of being sued over their content.) On Tuesday night, Trump announced that he would veto the upcoming National Defense Authorization Act, which provides hundreds of billions of dollars to fund the US armed forces, if it didn’t include a repeal of Section 230. I hardly need to tell you where he made the announcement: on Twitter, obviously. The next day, his press secretary insisted at a press conference that the president was serious.
Trump has targeted Section 230 before, but this is by far the most serious escalation. Past threats have been limited to “REPEAL SECTION 230” tweets and legally flimsy executive orders. Now, for the first time, Trump is demanding specific legislation from Congress, and threatening to use his very real veto power to get what he wants. All of which puts the Trump administration’s position on internet immunity on a collision course with another powerful political actor: the Trump administration.
You see, for all Trump’s stated opposition to Section 230, his administration’s own trade deal with Mexico and Canada—the United States-Mexico-Canada Agreement, or USMCA—specifically includes a version of the same law. The deal, which took effect over the summer, prohibits the signatory countries from adopting any measures that would hold an interactive computer service liable for content created by others. The inclusion of this provision was seen as a huge win for Silicon Valley lobbyists. It’s easy to see why: Tech companies like being shielded from liability, and as they do more and more business outside the US, they want to make sure they’re protected from expensive litigation in other countries. (House Democrats belatedly and unsuccessfully tried to remove the provision last year.) Even now, despite Trump’s public assault, the US is pressing for the same sort of provision in the post-Brexit trade agreement it’s currently negotiating with the United Kingdom.
I know, I know. Knock me over with a feather, the Trump administration is behaving hypocritically. But the conflict actually raises an interesting legal question: Given our commitments under the USMCA, could Congress repeal or alter Section 230 even if it wanted to? Some observers have suggested that it can’t. “Big Tech has already solved this potential problem—in a way only they can love,” wrote David Dayen in the American Prospect in June. “Adding the Section 230-style provision into the USMCA created an enormous hurdle.”
But according to experts I spoke with, the hurdle may not be so enormous after all. Yes, under the new trade deal, the US has committed to preserving Section 230-type immunity. But unlike past trade deals, the USMCA doesn’t give companies or investors the ability to sue to enforce the provisions, outside of a small set of exceptions. That looks a lot like a right without a remedy.
