On Wednesday, January 29, President Donald Trump signed the United States-Mexico-Canada Agreement (USMCA) into law, which will replace the North American Free Trade Agreement (NAFTA) that came into effect in 1994. The agreement enjoyed wide bipartisan support in both chambers of Congress, with only ten senators voting against the USMCA, including 2020 presidential candidate Bernie Sanders, eight Democrats, and one Republican.
Despite opposition, a contentious provision remained in the USMCA that grants liability protections for internet platforms, echoing language from Section 230 of America’s Communications Decency Act of 1996. In the agreement, many technology companies aren’t considered “publishers” of third-party content, but rather “platforms,” protecting them from liability through safe harbor provisions. Effectively, this shields companies like Google and Facebook from legal penalty for illicit or misleading content posted by their users and advertisers.
These provisions were met with backlash from both sides of the aisle. In December 2019, Democratic House Speaker Nancy Pelosi made a push to remove safe harbor provisions from the draft USMCA, but her request was made after the deal’s finalization. Similarly, Republican Senator Ted Cruz wrote in a letter to U.S. Trade Representative Robert Lighthizer that “members of both the Senate and House of Representatives [are] seriously considering whether to amend or eliminate Section 230’s grant of immunity” and that he believed “enshrining it in our trade agreements would be a mistake.” Despite their qualms, both Pelosi and Cruz voted in favor of USMCA in their respective chambers.
Although Democrats and Republicans have found common ground in questioning these liability protections, they have done so for different reasons. Senator Cruz has been an outspoken critic of what he’s called “Silicon Valley’s blatant political censorship,” echoing the widespread Republican sentiment that technology companies have been trying to curb conservative messaging on social media platforms. Conversely, Democrats have condemned what they see as the rise of hate speech, misinformation, and conspiracy theories on social media.
Outside of the trade agreement, the original Section 230 has also come under fire from both the Department of Justice (DOJ) and some in the private sector. In a speech on December 10th, Attorney General William Barr stated that the DOJ is looking into Section 230, and that the law has “extended far beyond what Congress originally intended.” He stated that platforms have legal immunity from “blocking or removing third-party speech–including political speech–selectively” and allow communications within terrorist organizations. Outspoken technology company opponents to Section 230 include Oracle, Salesforce, and Microsoft. Facebook CEO Mark Zuckerberg has stated that without Section 230, he wouldn’t have been able to start Facebook, but the company now must take a “broader view of its responsibility.”
Section 230 and an array of social media regulations are currently being reevaluated by stakeholders. In June 2019, The New Center suggested potential reforms in a policy paper entitled “Big Tech: Public Discourse and Privacy.” The New Center proposes the following solutions to create a sustainable framework for platform liability and responsibility:
- In line with the First Amendment, online speech should be free unless inciting violence or promoting dangerous obscenity
- Operators should have liability for any demonstrable negligence, as determined by the Federal Trade Commission
- Platforms should provide meaningful notice to those who have their content removed
- Platforms should allow users the right to appeal any content takedown
- Platforms should issue public reports detailing the amount and types of removed content, along with justifications for removal
For solutions forged in the center, read the full paper here.
Earlier this month, the California State Legislature passed the year’s final amendments to the California Consumer Privacy Act (CCPA), a bill to enhance personal data privacy and consumer protection online. These changes are expected to be enacted into law by October 13th, pending a signature from California Governor Gavin Newsom. On September 25th, policymakers released an additional “CCPA 2.0” initiative—The California Privacy Rights and Enforcement Act of 2020—to be placed on next year’s presidential election ballot. Among other things, CCPA 2.0 would establish an independent data protection agency, create a new class of “sensitive information” (such as passport and social security numbers), and include additional notice requirements for businesses.
Since its inception, the CCPA has been a political lightning rod. Congressional Democrats have called the bill a “floor,” not a “ceiling,” for federal privacy legislation. Conversely, Republicans have argued that stringent privacy laws create high compliance costs which pose a threat to small businesses, innovation, and consumer choice.
Policy experts have noted that California’s privacy laws often become de facto national standards. Members of Congress on both sides of the aisle have warned against simply transposing the CCPA into a model for federal legislation, even though Congress has yet to produce a politically viable alternative.
One major sticking point in the federal legislation debate is “preemption”—the ability for a federal law to preempt (override) state laws, such as the CCPA. Republicans have advocated strongly for preemption, warning against a patchwork of state laws that may disrupt interstate commerce and compound compliance costs. Some Democrats, particularly those with a hand in crafting or promoting the CCPA, are opposed to the idea of preemption, fearing that a national law might water down state laws.
In 2018, Congress had reached a consensus on the need for a strong federal privacy framework in the United States. Senator Robert Wicker (R-MS), head of the Senate Commerce, Science, and Transportation Committee, stated that he anticipated “a federal law on the books by the end of 2019.”
But Congress has yet to act. Still, many in Congress and the tech industry recognize that a clear nationwide privacy standard would be easier to comply with than different state by state laws.
Earlier this year, Senate Majority Whip John Thune (R-SD) stated that “the question is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape it should take.”
In June 2019, The New Center suggested potential reforms in a policy paper entitled “Take on Big Tech: Protecting Privacy and Public Discourse”. The New Center proposes the following solutions to create a sustainable and sensible framework for managing privacy concerns:
- Enacting federal legislation to protect online privacy
- Allowing the FTC to issue trade rules under the guidelines of the Administrative Procedure Act (APA), or creating a new privacy watchdog organization with APA rulemaking ability
- Creating a legal framework to promote transparency in content moderation
- Fostering a system of algorithmic accountability for AI use in moderating online content
- Restoring of the Office of Technology Assessment
For privacy solutions forged in the center, read the full paper here.
Olive Morris is a policy analyst for The New Center, which aims to establish the intellectual basis for a viable political center in today’s America.