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.
“There’s a difference between the fact that the USMCA provision is on the books and the possibility of ever enforcing it,” said Vivek Krishnamurthy, a law professor at the University of Ottawa who has studied the immunity provisions in the trade deal. “Let’s assume Section 230 is repealed in its entirety. Who can do something about it? Under the USMCA, it would only be the governments of Canada or Mexico.” Unless Facebook or Google decided to relocate to one of those countries, he added, that’s not going to happen. After all, it was the US that pressed our neighbors to commit to the liability shield, not the other way around.
So while repealing—or significantly altering—Section 230 could technically put the US in violation of the USMCA (along with other trade deals, including one with Japan), Congress could still get away with it. The only real consequence would be weakening other countries’ faith that the US honors its international agreements—which could pose a problem for any future efforts to coordinate with the European Union on issues like privacy and content regulations.
“This would be a further erosion of the ability to trust the US to live up to a bargain, and an example of the willingness of Trump to negotiate a deal, and agree to it, and then turn around and do the opposite,” said Joshua Meltzer, an international trade expert at the Brookings Institution.
We should pause here to note that the chances of Congress acquiescing to Trump’s latest demand appear to be roughly zero. Republican Senator James Inhofe, chairman of the Senate Armed Services Committee, told CNN that he plans to move ahead with the existing NDAA bill without including a Section 230 repeal. This prompted an angry tweet from Trump, of course, but that probably won’t get the job done. Congress has passed the NDAA for 59 years in a row. If Trump vetoes it, there should be enough votes to override him. If not, the House and Senate can fast-track the legislation in January so it’s ready for Joe Biden to sign when he takes office. Even people on the Hill aren’t exactly sure what would happen in the meantime under that scenario—again, Congress always votes to fund the Defense Department, so these would be uncharted waters—but they don’t seem terribly worried about it, either. “The dirty little secret about authorizations is that they don’t usually matter,” said one congressional staffer who wasn’t authorized to speak publicly. “We pretend they do in order to keep up momentum for passing reauthorization bills because that’s a useful mechanism for getting shit done.”
Which neatly explains both why Trump is using the NDAA as a lever to take out Section 230, and why it probably won’t work.