President Donald Trump escalated his battle with social media firms on Thursday, signing an executive order that targets a longstanding piece of U.S. internet policy limiting platforms’ legal liability for things their users post.
Policymakers in Canada, the U.S. and other countries are increasingly reconsidering such “safe harbour” provisions for internet companies. But legal and policy experts are divided on whether the White House’s unilateral action flouts international trade obligations under the USMCA, and how it might affect Canada’s own regulatory efforts.
President Donald Trump’s executive order targeting safe harbour protections for online platforms comes amid growing international regulatory efforts aimed at tech firms. Legal and policy experts are divided on whether the White House move contravenes obligations under the USMCA trade deal, and how it will affect Canada’s own rulemaking efforts.
Section 230 of the 1996 Communications Decency Act (CDA) makes internet companies like Twitter, Facebook, and YouTube legally not responsible for things their users distribute or make available; because of this section of the law, Facebook can’t be sued for something libellous one of its users posts via their account. Section 230 also means companies can’t be sued for acting in “good faith” when they remove or restrict access to material they consider “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”
Trump’s directive asks the Federal Communications Commission (FCC) to set rules that address instances when companies aren’t acting in “good faith.” In these instances, the directive says, the companies should lose their protection from liability.
The White House is also ordering all departments and agencies within the executive branch to review their advertising spending through online platforms; the justice department will then decide whether any of those companies are “problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
The order tasks Attorney General William Barr with proposing legislation to address what it characterizes as the “dangerous power” of social media platforms to “censor opinions with which they disagree.” Barr will also convene a working group of state attorneys general to come up with model rules on unfair or deceptive online practices that local legislatures can enact.
Trump and other Republicans have long claimed that social media platforms selectively censor conservative viewpoints, which prominent party members like Senator Ted Cruz have argued violates the spirit of Section 230. While signing the executive order on Thursday, the president complained about Twitter’s decision to append a fact-checking note to one of his recent tweets.
But Twitter’s move doesn’t take advantage of Section 230’s safe harbour provision, according to Barry Sookman, senior counsel at McCarthy Tétrault. “The exception only applies when it publishes third-party content,” he said. “Here, [the fact-check is] its own content.”
The rules also protect takedowns. As the executive order itself points out, “the very purpose of Section 230” was to provide “a Good Samaritan defense to enable platforms to deal with content that was illegal or offensive,” Sookman said. “If they, in good faith, come to the conclusion that something is inaccurate or misleading, they would be within their rights not to publish it.”
Sookman also said it’s not clear that Trump has the power to modify the liability-limiting law through an executive order, since it was passed by Congress. “This is the president trying to do something to punish Twitter, as opposed to being a problem with the CDA,” he said.
Under the USMCA, governments in Canada, Mexico and the U.S. are forbidden from making rules that hold internet platforms liable for third-party content they host or distribute. Trump touted the online chapter as a key win when the USMCA was finalized. The Internet Association (IA) and the Computer and Communications Industry Association—both U.S.-based tech groups that count Amazon, Facebook, Google and Pinterest among their members—lobbied for the inclusion of a safe harbour provision during negotiations over the deal.
Legal experts disagree on whether Trump’s executive order contravenes those provisions. The policies in the directive are “completely contrary” to the USMCA, said Barry Appleton, managing partner at Toronto-based Appleton & Associates International Lawyers. “All of a sudden, they seem to [have changed] their minds on the central fundamental rules here for digital trade.”
Sookman said the USMCA doesn’t enshrine the CDA’s liability provisions wholesale. “The U.S. has leeway to make changes to Section 230 that wouldn’t violate the treaty,” he said. In March, opposition MPs told The Logic they were concerned that the USMCA’s digital-trade rules limited Canada’s ability to make internet policy and hold tech firms responsible for the spread and consequences of illegal content, as the federal government had promised. But Sookman said the provisions are consistent with existing Canadian law, which allows a platform to be held liable once they become aware that they’re hosting illegal information.
The office of Deputy Prime Minister Chrystia Freeland, the cabinet lead on the USMCA, did not respond to The Logic’s request for comment on the executive order.
While the USMCA doesn’t take effect until July 1, Appleton said under international law, signatories can’t act in ways that defeat the purpose of treaties before they come into force. Mexico has three years to comply with the deal’s digital-trade rules, so it could fall to Canada to enforce the safe harbour provisions against Trump’s executive order. “Social media companies will want to put pressure on the Canadian government to formally object to the Americans,” said Appleton, since that power is limited to signatory countries. But he warned that such action “could escalate trade tensions again between Canada and the United States very significantly.”
The international effort to regulate Big Tech
British lawmakers have pushed their government to avoid Section 230-like provisions in any post-Brexit U.K.-U.S. trade deal, and the European Union has drafted rules to incentivize platforms to take down illegal content while retaining liability-limiting protections.
“There’s a lot of debate about the future of [safe harbour rules], none of which seems to be factored in” to the White House move, said Fenwick McKelvey, an associate professor at Concordia University, noting that the unilateral action “highlights the fragility of the regulation of speech globally.” He said it’s difficult to determine how much stock to put in the move, or whether other countries should take direction from it—on several occasions, the courts have quickly struck down Trump’s executive orders.
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Tech firms have criticized the president’s move. Twitter called the executive order “a reactionary and politicized approach to a landmark law,” and said attempts to “unilaterally erode” Section 230 “threaten the future of online speech and Internet freedoms.” Google said undermining the provision will cause economic harm, while Facebook said any limitations to it will increase, not reduce, speech restrictions. The executive order “seems designed to punish a handful of companies for perceived slights and is inconsistent with the purpose and text of Section 230,” said Jon Berroya, interim IA CEO.
The global success of American internet companies is often attributed to the protections they enjoy under the CDA globally, McKelvey noted. “They’re willing to go to different countries [for] favourable tax conditions,” he said, questioning whether the weakening of Section 230 could prompt them to consider relocating. “This might be a strange blip in an otherwise much more complicated international process of platform regulation.”