Now is Not the Right Time to Export Internet Immunity

After three years of revelations of platforms are used for nefarious purposes — companies harvesting data from Americans’ Facebook profiles without their consent, criminals using YouTube, Instagram and Twitter to peddle drugs and terrorists using platforms to recruit and spread hateful propaganda — it’s fair to say the future of digital platforms is at a crossroads.

Which is why now is the wrong time for U.S. policymakers to insist that legal protections that immunize tech platforms like Facebook and Google from accountability for harms caused by dangerous and illicit activities on their networks be included in trade agreements negotiated with other countries.

As a society, we have to decide what is the proper role for digital platforms in our lives. What we have discovered in recent years is troubling. The Digital Citizens Alliance has raised alarms about the way the platforms are used to harm Americans, most recently releasing the findings of a six-month investigation showing the role Google and Facebook play in the illegal distribution of steroids and other appearance and performance-enhancing drugs.

That report followed investigations that showed how terrorists used Google Plus, Instagram, YouTube and Twitter to recruit members and spread hateful propaganda and previous reports on how stolen credit cards, dangerous opioids, and fake passports are peddled online.

The Trump administration is well aware of problems on the platforms and is taking steps to hold Big Tech accountable. However, largely below the radar screen, elements of the administration insist that the digital “safe harbors” that protect digital platforms from liability for what occurs on their sites — the same “safe harbors” that helped facilitate these harms — be incorporated into bilateral trade agreements.

Section 230 of the Communications Decency Act and its companion safe harbors shield internet companies from civil liability for a huge array of crimes and abuses that occur online. Already, trade agreements including the US-Mexico-Canada trade agreement, a U.S. trade pact with Japan, and the U.S. government’s negotiating position on the World Trade Organization E-Commerce Paper all include provisions essentially “exporting” Section 230 to our trading partners.

This is curious timing. Section 230 was never treated as a trade issue in the prior two decades of its existence. And in the wake of growing awareness of problems in our current system and seminal events like the Cambridge Analytica scandal and the live-streamed Christchurch shooting, Congress is weighing whether these protections are still appropriate in their current form. Until that debate takes place, we shouldn’t cement protections that our own policymakers have signaled may need to be revised.

This looming congressional debate has spurred digital platforms to turn to the more secretive, insular world of trade negotiations in a backdoor effort to shut down efforts on Capitol Hill to hold them accountable. It’s a smart strategy.

First, if we embed the protections in trade agreements, it will become much harder for Congress to change the immunities and protect Americans on the internet, because treaties are difficult to alter and can “lock in” U.S. law when amending it may violate treaty obligations.

Second, it gives the platforms the same immunity in other countries they exploit in the United States – cementing in the status quo and preventing our trading partners from experimenting with their own approach to platform responsibility.

Congressional leaders with oversight responsibility for the Internet have recognized this threat and pressed the U.S. trade officials to leave current safe harbors out of future trade deals until Congress can review them. So far the administration has ignored this request.

Every day we see examples of digital platforms in crisis.

Over the last three years the companies have been fined a total of $15 billion for illegally collecting data on children (Google), violating Americans’ privacy (Facebook), squeezing out competition in online advertising (Google), leveraging an operating system to harm competitors (Google), and illegally using search to favor its own products (Google).

Public confidence in the platforms is collapsing. Seventy-two percent of Americans reported that their trust in platforms had declined in the last year, according to a Digital Citizens Alliance survey done this past summer. Additionally, fifty-three percent of respondents no longer believe the platforms are trustworthy.

Given this crisis, let’s decide here at home what’s the right role for digital platforms in our lives before we demand that other countries to follow our lead.

Tom Galvin is executive director for the Digital Citizens Alliance, a consumer-focused group whose mission is to raise awareness among the public and policymakers about how to make the internet safer.

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