USMCA’s Outsourcing of Free Speech to Big Tech

Shealah Craighead – The White House from Washington, DC

When Trump signed the United States-Mexico-Canada Agreement (USMCA) last November, he said that
this was “the most advanced trade deal in the world with ambitious provisions on the digital economy”—and he wasn’t lying.  The USMCA has effectively replaced the North American Free Trade Agreement that was signed by Canada, Mexico and the US under the Clinton administration in 1994. This redraft, however, does not look like its predecessor in scope or political aims and dangerously treads upon the freedom of speech guaranteed by the U.S. Constitution, by the Canadian Charter of Rights and Freedoms and Article 6 of Mexico’s Constitution in addition to all three countries’ accession to the International Covenant on Civil and Political Rights (ICCPR).

To understand what has happened here, we need to examine the Communications Decency Act of 1996 (CDA, also known as Title V of the Telecommunications Act of 1996). Section 230 states: “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” (47 U.S.C. § 230). What this means is that the host which acts as an online intermediary by republishing our speech is protected against a series of laws that would otherwise hold them accountable and legally responsible for what we post online as individuals. Those protected under this section are every entity from our ISPs to the platforms upon which we publish, be it Twitter, Instagram, Google, and any online service that publishes third-party content.

While there are certain exceptions for mostly criminal content and anything related to intellectual property, the CDA 230 created a wide range of protections allowing for free speech online. This translates to if The Guardian publishes a defamatory piece about me, I could sue this newspaper for libel. But if The Guardian tweets the very same claims, Twitter would not be held legally accountable for libel. One caveat to CDA 230, however, is that this bill had been wrongly interpreted to shield websites that participate in sex trafficking from any criminal liability. So, last year an important piece of legislation removed this loophole, the bipartisan “Allow States and Victims to Fight Online Sex Trafficking Act,” H.R. 1865, 115th Congress (2018), provides websites immunity for content posted by third parties with the exclusion of sex trafficking. Additionally, two to bills with online provisions were passed into law—one in the House known as FOSTA (the Fight Online Sex Trafficking Act) and the Senate bill, SESTA, (Stop Enabling Sex Traffickers Act)—have held big tech responsible for child pornography and human trafficking.

So, for many people who have been pushing for Facebook and Twitter to remove the rape and pedophilia posts that these tech companies have allowed over the years, it was not surprising to learn that big tech fought back on this exclusion, warning that the bill could oblige them to block controversial political speech losing the legal battle. Indeed, these tech companies have been trying to reinvoke their immunity as previously held under Section 230 of the Communication Decency Act through NAFTA (North American Free Trade Agreement) renegotiations. So last November they were successful as the USMCA will now extend the immunity Congress had earlier provided with Section 230 of the Communications Decency Act of 1996 (CDA) into neighboring North American countries. Not only is this is a gift to the tech industry, but it is a complete series of contradictions that muddle our right as users to engage in free expression and here’s why.

The tech industry, to include Google, Amazon, Facebook, Twitter and Netflix, lobbied heavily to get back Section 230 immunity since last April by invoking “free expression” for its users while conterminously taking on the policing free speech on its platforms. So, big tech’s request for complete immunity, in light of its use of Section 230 to justify political bias and censorship, reveals a troubling present for free speech on the net. Additionally, the U.S. pressured Canada and Mexico, its top export markets, to agree to the limits of “civil liability of online platforms for third party content,” according to the list of U.S. negotiating priorities published on 17 November.  U.S. technology group, the Internet Association,  argued against framing the issue as “a binary choice” where, the IA’s general counsel, Abigail Slater, stated that, social media websites, might be aware of communications between users but that this in itself not the same as facilitating illegal activities. In essence, Google, Facebook, Twitter and many other big tech companies were trying to push for the creation of USMCA which would allow for big tech companies to return to the pre-2018 immunity from any criminal responsibility for facilitating sex trafficking, child trafficking and prostitution.

As human rights groups became aware of big tech’s attempt to influence this trade deal, many  former victims of sex trafficking and major organizations such as National Center on Sexual Exploitation and World Without Exploitation, along with dozens of other signatories, sent a letter to Congress on 13 September, 2018 requesting that the new NAFTA  negotiations remove the “Section 230-like language” in the new NAFTA agreement in order to hold internet and tech companies accountable for “knowingly facilitating” sex trafficking in what they deemed to be “the tech lobby’s strategy to undermine FOSTA-SESTA.” And these signatories were spot on in their critique given that in an August 2017 letter to congressional staffers, Google lobbyist Stewart Jeffries wrote that FOSTA “has the potential to seriously jeopardize the internet ecosystem” and that the bills “undercuts one of the foundational statutes for the Internet: Section 230 of the Communications Decency Act.”

As social media giants are increasingly behaving like publisher and editors, removing content they dislike or that dos not match up to their own political ideals, we have seen in recent years largely conservative voices such as Ted Cruz and Ann Coulter have been at the forefront for fighting against the censorship of these tech giants.  As I have argued in previous articles on big tech’s stranglehold of free speech, it is important that we understand that these platforms like Twitter, Facebook, And Google are the public square today.  Increasingly the “in real life” public square has shifted from the Main Street and discussions around the pool table to the Internet, and these tech giants are wanting to have all the protections of immunity from criminal or civil liability while also wanting to exercise their control of free speech. It’s a situation of big tech both wanting to have and eat its cake.

And it’s not just the recent revelations with Google having created Dragonfly, its censored platform for China, it is that big tech companies are pretending to extend the exercise of free expression while actually doing just the opposite: censoring content and putting free expression under erasure, especially speech that does not match the political ethos of these tech giants.  Given that free speech is at the epicenter of Internet vitality, we are currently witnessing the control over free speech being handed to big tech by governments such as the U.S. simply because these companies have budgets that exceed the GDPs of many countries on the planet and can have a seat at the table with Trump to ensure their politically liabilities are safeguarded. It is almost as if they are being granted de fact political power extra-judicially.

Where the Internet was designed to be a platform to ensure that free speech flourished, we are in the throes of free speech being repressed to meet with big tech’s desire to increase their monopoly over the public domain. And here’s the kicker, most of these platforms openly acknowledge that they are the new public square while conterminously stating that they are a private business exercising and controlling rules, regulations and whose accounts they can censor or remove. Google, Twitter, and Facebook want all the rights of a dictatorship while being able to reap the rewards of a carefully staged democracy while usurping the space of public spheres. Or, as many users are instructed when Twitter locks people out of their account for violations of its rules which generally amount to political disagreement, Twitter sends the user the following message with an image of the “banned content” and the bold instruction: Remove Tweet.

By clicking the above button, you are removing the content of your Tweet and forgoing the option to appeal this violation. Please note that the original content will be replaced with a notice stating your Tweet is no longer available because it violated the Twitter Rules. This notice will be accessible via direct URL and from your profile timeline for 14 days.

The choice is clear here: users must either be punished with a ban for so many hours or days, or they can have this ban extended for days, even weeks, in order to appeal the attempt to censor free speech. If you choose to remove the “offending” tweet, the removal becomes codified in a Scarlet Letter-esque message alerting the pubic that you have “sinned” while also serving as an admission of having committed an offense. Yet, many simply remove the tweet to get back onto the platform, not as any form of tacit agreement of rule breaking. If you choose to stand up for free speech, you click through an extra page and submit and wait for days—if not weeks—for Twitter to respond.

Most troubling of all, Twitter is not accountable to anyone for the exercise of its rules which are inconsistent at best. And in today’s climate where social media is very much a part of one’s ability to work, users booted from its platform are faced with economic hardship if kicked off the platform. Indeed, many employers today require that their staff maintain social media accounts as part of their job description and being locked out of these social media platforms is not only a way of no-platforming people from free expression, but it is a way of rendering unemployable those in certain sectors that deal with the public. Freelancers and companies rely on social media as a means of maintaining a public profile for online marketing and for maintaining a public presence. In short, these platforms, when they remove content and user accounts, are acting as an uncontrolled system of excluding opposing voices from public participation and survival.

Facebook today has over 2.23 billion monthly users and Twitter has 328 million monthly active users. Both these tech giants have user numbers that easily dwarf the populations of  even large countries and these companies were given input into how USMCA was drafted. They argue that they are private companies, but it is pretty clear that they are behaving as unelected officials who are influencing public policy and legislation to their own benefit. Similarly, lawmakers in the U.S. are pretty much aloof as to how these companies are curtailing the free expression of the very users they ostensibly serve. But there’s good news, folks!

Canadian feminist and journalist, Meghan Murphy, is suing Twitter. Having been permanently suspended from Twitter last November, Murphy’s lawsuit fundamentally challenges Jack Dorsey’s contention made last September to the House Energy and Commerce Committee on Twitter Transparency and Accountability: “I want to start by making something very clear. We don’t consider political viewpoints, perspectives, or party affiliation in any of our policies or enforcement decisions, period.” Murphy’s lawsuit is taking Twitter to task for the fact that it unevenly and unfairly exercises its own policies, censors content by users based on political perspectives, and has acted against its own company mandate: “to give everyone the power to create and share ideas and information instantly without barriers. Our business and revenue will always follow that mission in ways that improve and do not detract from a free and global conversation.” In Murphy’s video explanation of her lawsuit, she eloquently lays out the reasons for her lawsuit, elaborating the many contradictions of how Twitter has exercised egregious censorship of users, especially feminists. This lawsuit is bound to be a game-changer for us all as it points to how these tech giants are controlling public opinion through censorship fundamentally.

When interviewed by Sam Harris about Meghan Murphy last week, Jack Dorsey is asked about why Murphy was banned when Twitter has kept accounts by numerous people and groups that have posted inflammatory content. Dorsey’s answer flies in the fact of what he told the U.S. government last fall: “I don’t believe that we can afford to take  a neutral stance any more…I don’t believe that we should optimize for impartiality.” Harris then asks Dorsey, “Why not take refuge in the First Amendment?” as a comprehensive response. Dorsey’s response: “The enforcement of [our rules] is not always apparent….If you just look at one enforcement action, we don’t suspend people purely for saying one particular thing permanently.” He goes on to exempt violent threats from this rule. “I don’t think we can be this neutral passive platform any more.”  Effectively, Dorsey is advocating for censorship and this is a problem where Twitter claims to be that public arena for democratic sharing of ideas and against what Dorsey calls the “shutting down” of those who “weaponise” Twitter. He goes on to state:

We are moving to a world where we want to be a lot more pro-active about how we think about enforcement by actually doing the inverse: how do we promote more healthy conversation?… Less of a world where we take things down and more of a world where what are we amplifying? and what are we giving attention to? I don’t think it will necessarily be what accounts are we giving attention to but what conversations are we giving attention to.

As Harris warns the listener before this interview, Dorsey is skilled at stepping around difficult questions, but here Dorsey effectively promotes censorship by stating that the focus is on the subjects wants to promote, not the people. But what better way to cull unpleasant or disagreeable viewpoints than to eliminate speakers from its platform? It’s as if Dorsey buys his own lie that by renaming the censorship on his platform as promoting “healthy conversation” we can’t see through what Twitter is actually doing.

Like Twitter, fellow tech giants are dangerously treading on becoming censors of free speech in their respective empires which many had claimed, years earlier, they had created to provide platforms for free expression. Dorsey clearly expresses a desire for “healthy conversation” but he misses the point of what free expression is about. Or as George Orwell writes in the preface to Animal House,  “If liberty means anything at all, it means the right to tell people what they do not want to hear.”

Julian Vigo is a scholar, film-maker and human rights consultant. Her latest book is Earthquake in Haiti: The Pornography of Poverty and the Politics of Development (2015). She can be reached at: