While the replacement for NAFTA may have many great aspects, it also erases the one key law that would protect conservative voices from being censored online.
Big tech censorship is one of the greatest threats to conservatives’ electoral and cultural success. Conservative leaders from Ted Cruz to Brad Parscale have suggested prosecuting big tech for censoring conservatives based upon section 230 of the Communications Decency Act. While the NAFTA replacement USMCA (United States-Mexico-Canada Agreement) has many good features, Michigan State University law professor Adam Candeub warns in a RealClearPolitics piece that it will also strip the key protections that conservatives depend on.
Candeub is also the director of the Intellectual Property, Information & Communications Law Program at MSU’s College of Law. He also served an attorney adviser at the Media and Common Carrier Bureaus of the Federal Communications Commission. In his opinion piece for RealClearPolitics he warned,
….unless it’s revised, the agreement will thwart the president’s explicit promises to address social media censorship. Article 19.17 of the USMCA stealthily removes seven words from Section 230 of the Communications Decency Act’s “Good Samaritan” provision, which would give Big Tech the statutory right to censor whatever content it finds “objectionable.”
Section 230 of the 1996 Communications Decency Act designates social media platforms strictly as “platforms” rather than “publishers.” This is an important legal distinction because it makes companies immune to legal prosecution for illegal activity which occurs on their websites. The purpose of this was to ensure that they serve as an online arena for public debate. If they don’t behave as platforms for open debate, then they risk being stripped of this immunity.
This ability of this legislation to protect conservative speech will be gutted if USMCA passes, because it will allow websites free reign to decide what is or isn’t “objectionable.” Candeub cites previous incidents where social media platforms have completely failed to be politically neutral platforms,
[to] remove the context for “objectionable” would likely lead courts to interpret it to mean whatever the platforms object to — which has thus far included the word “illegal alien,” pro-life advertisements, videos defending “Israel’s Legal Founding,” and President Trump’s own immigration advertisements.
He later clarified that while 230 has not prevented online platforms from censoring, there is still legal room for Republicans like Ted Cruz to take action on this issue and enforce the legislation’s rules. The problem is that this USMCA legislation would empower tech companies to decide what it or isn’t objectionable, removing that last viable defense that Republicans have online as the 2020 election approaches.