NAFTA and Unsafe Harbors: Why Calls for Blanket Immunities Must be Rejected

By Neil Turkewitz

A group of academics and advocates, including organizations such as EFF, Public Knowledge and R Street, have just published an open letter to the chief trade negotiators for the US, Canada and Mexico reiterating the importance that they attach to the inclusion of limitations on the liability of internet services in an updated NAFTA. The letter begins: “When NAFTA was negotiated, the Internet was an obscure electronic network. Since then, the Internet has become a significant — and essential — part of our society and our economy.” NAFTA was negotiated in 1994. The authors of the letter are correct in observing that the “Internet” (which was then capitalized and continues to be so for some — particularly those that think of it as a place rather than as a tool for communication between sentient beings) was obscure and just emerging. Not yet the vehicle for a new generation of billionaires and the production of unicorns. But I am getting ahead of myself.

So exactly what does this group of academics and advocates want to do in a new NAFTA to take account of the changes in our world since 1994? Here’s the truly fantastic part. They urge inclusion of the limitations on platform liability contained in the Communications Decency Act of 1996! Yes, you are reading that correctly. 1996. While they don’t explicitly mention it in their letter, by implication they are also proposing inclusion of the internet platform safe harbors contained in the DMCA, enacted when we were much wiser in 1998. You know, when the internet was fully mature and we could clearly see the advantages and disadvantages of various ways of addressing internet governance. Something that adequately responded to the challenges of invasions of privacy, of fake news and intellectual property theft, of cyber-bullying, of interference in free and open elections. Oh wait, the rules being proposed here are the very ones that ushered in, or at a minimum facilitated, these various problems, not ones that respond to them. The groups and individuals endorsing the open letter want to preserve the status quo, not change it. Because everything is working so well.

Returning to the land of the living, it is abundantly clear that the US Congress and governments around the world, including Canada and Mexico, will be re-examining their legal frameworks to create greater accountability throughout the internet ecosystem. Changes that respond to developments of the past twenty years, and in particular to the vulnerabilities of present internet governance exposed by recent events. Changes that reflect experiences rather than ones rooted in quasi-religious fundamentalism. Changes that will hopefully meaningfully address misconduct and breathe life into the potential of the internet to drive prosperity and cultural diversity. To enhance an understanding of our connectedness rather than fueling fear and divisiveness. It is increasingly clear that absolving internet platforms from responsibility for the manner in which they conduct their businesses is not a well-considered way of effecting these changes. If we reward lack of accountability, we surely invite an unaccountable universe.

The path ahead is complicated and nuanced as we seek to balance a series of important public policies. Fostering freedom of expression in ways that reflect the realities of our new online marketplaces for ideas will require original thinking. Fully realizing the potential of the internet to drive economic development and cultural diversity will require new business and legal paradigms. But one thing is abundantly clear — we must not cling to the status quo. We can and must do better. And no country should be fooled by the rhetoric of this letter. Canada and Mexico should not adopt the framework chosen by the US at the birth of the commercial internet. Nor should the US seek to so bind our trading partners.

While the timing is unknown, there is little doubt but that the US Congress will amend the provisions of the CDA and DMCA. SESTA is on the near horizon. Other changes will follow. The one constant will be a rethinking of the once quaint, but now terrifying, notion that internet services need to be free from any responsibility for their conduct in order to have breathing room to innovate. We should certainly encourage innovation by guarding against the imposition of liability for platforms/services that operate in a reasonable manner, but we have already seen the consequences of rewarding conduct regardless of whether it is reasonable, and it is not a good model of governance. We must not make impossible demands of internet services by making them responsible for everything that takes place through their networks and systems. But we must demand accountability for how they respond to acts which take place via proprietary systems, and most importantly, for how they conduct themselves. Blanket immunities enrich irresponsible actors and undermine the public interest. And they ignore the fact that platforms are not neutral: they define the possible and monetize the probable. In short, they shape the future. Seems preferable to not be blind when doing so. The status quo rewards blindness. I would rather have engineers and architects work with their eyes open.

NOTE: For those interested in further background, please note that CCIA and the Internet Association have been on this beat for some time, and have been powerfully rebuffed by members of Congress and by Consumer Watchdog. The joint letter from members of Congress contains the following warning about the consequences of including Section 230 in NAFTA:

“Including Section 230 in NAFTA in its current form would export a destructive legal battle that will harm sex trafficking victims advertised in Mexico and Canada. Given that Mexico may be the largest source country for sex trafficking victims in the United States, and that Mexico is ranked as a Tier 2 country on the U.S. State Department’s Trafficking in Persons report, we urge you to ensure that any digital trade language in NAFTA does not immunize any company from profiting from the commercialization of sex trafficking, at home or abroad. The United States is a leader in the fight against modem-day slavery, and it would be devastating to set such a harmful example by including Section 230 in NAFTA in its present form.