New free trade treaty between Mexico, Canada and U.S. backstops digital business safeguards

12 December 2019 by Steve Blum


The text hasn’t been published yet, but statements from people involved indicate that online liability protections were included in the final version of a trade agreement between the United States, Canada and Mexico (a draft version is here). Those protections are said to closely follow the language in a 1996 law passed by the U.S. congress that puts responsibility for online content on whoever posts it online, rather than the operator of the platform or server that hosts it. An earlier draft of the treaty certainly does that.

Baking it into a major international treaty means it’ll be difficult, if not impossible, to change this U.S. law, as many in Washington D.C. want to do.

That 1996 law – section 230 of what’s called the communications decency act – says “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. At the time, the thinking was that companies that rent out web servers shouldn’t be responsible for policing information that their customers upload. Under the law, they could also take action if they thought third party content was objectionable, without incurring liability.

That protection from civil lawsuits now extends to social media platforms, like Facebook, and content aggregators like Google. Which upsets people in both the democratic and republican parties who want to regulate Internet content because someone else’s version of The Story gets noticed instead of their version of The Story. They can’t do that directly – the first amendment to the U.S. constitution is unmistakably clear on that point – but unleashing the predatory bar can achieve the same end, with an added cash bonus – contingency fee lawyers write big checks to lawmakers.

As the Electronic Freedom Foundation observes, the U.S. has those protections and other countries don’t. And the U.S. is home to the world’s major online companies, and other countries aren’t (those operating behind the Great Fire Wall of China aside). Assuming the new North American trade agreement is ratified, the odds that we’ll continue to enjoy that freedom, and that it’ll be extended to our neighbors, just got a lot better.