Saturday, May 26, 2018 | 2 a.m.
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As U.S. trade negotiators meet in Montreal to chart the future of NAFTA, Big Tech lobbyists are working feverishly to ensure any new deal includes broad “safe harbors” that shelter companies like Facebook and Google for antisocial behavior and crimes on their networks.
That would be a terrible mistake — one our NAFTA team must resist.
The internet is an incredible tool that powers virtually every aspect of modern life. One of the single most important inventions in all of history, it has changed how we learn, work, communicate and even love — in a single generation.
But it’s also plagued with growing pains. The election attacks of 2016 are the headline, but the big technology platforms actually enable and empower all sorts of antisocial behavior, abuse and outright crimes, such as sex trafficking, opioid sales and digital piracy. It has fueled the destruction of critical institutions like journalism, and decimated Main Street retail.
Women and people of color don’t need to be told how bad it is; those of us who are still online have simply grown numb to the appalling gusher of harassment and abuse that awaits virtually any outsider who chooses to speak up.
And as with Russia’s interference in our election and Cambridge Analytica’s industrial-scale breach of our data, instead of working actively to stop or minimize these abuses, the Big Tech giants repeatedly turn a blind eye to them — or worse, leverage them for further profits. One study found that YouTube siphons as much as a billion dollars a year from creative artists by tolerating massive piracy on its networks and then paying below-market royalties to artists for their work on the grounds that so many pirated copies are available for free.
A big reason these platforms don’t do more to police their networks is the “safe harbor” protection they enjoy under U.S. law. Found in Section 230 of the “You’ve Got Mail”-era Communications Decency Act (part of which was already struck down by the Supreme Court) and a parallel provision in Section 512 of the Digital Millennium Copyright Act, these laws largely immunize the big platforms for crimes and other antisocial acts they enable.
Most bricks-and-mortar businesses are subject to tort laws, negligence principles and criminal statutes that expose them to liability if they ignore obvious risks or fail to take minimal steps to protect their customers or stop their services from being misused. But the internet “safe harbors” largely exempt tech platforms from those principles.
When they were passed in the early 1990s, this approach made at least some sense. No one really understood what the internet would become, and the phenomenon of open networks where users could post anything was relatively new. Should a bulletin board be liable under copyright if a user posted a copy of a newspaper article? Should a messaging service be responsible if someone used it to harass or stalk?
Two decades later, some harms like massive copyright infringement are rampant, and now we know these safe harbors are much too broad and encompass more than economic injury. They create terrible incentives by allowing the tech platforms to profit off abuse and theft — while freeing them from any obligation to use their control over networks to police it. Facebook’s indifferent response to Cambridge Analytica’s misdeeds flows directly from this “see no evil” culture, as does Twitter’s tolerance of misogyny and the continuing presence of illegal opioid mills in Google search results.
U.S. policymakers finally have woken up to this problem and are moving to rein in the platforms by refining these immunities. Congress recently passed a law limiting their application to sex trafficking cases, and other reforms are expected. And the U.S. Copyright Office and the House Judiciary Committee are both in the midst of major reviews of the 512 copyright immunity.
But in Montreal, Big Tech is actively working to have the most expansive, unreformed versions of these broken and dangerous safe harbors embedded in the new NAFTA. That would effectively cut out the Congress and the Copyright Office, and prevent U.S. policymakers from fixing a 20-year-old mistake — right at the moment when reform is finally possible and imminently necessary. It’s the height of cynicism and irresponsibility, and a rude awakening for anyone who believed Mark Zuckerberg’s repeated claims that Facebook is ready to take responsibility for what happens on its network.
America’s NAFTA team, led by U.S. Trade Rep. Robert Lighthizer, must stand firm and resist any call to include unreformed safe harbors in NAFTA. While we struggle to clean up the U.S. internet, we must not export the worst of cyberspace to the rest of North America.
Stephanie Moore is an attorney and previously served as chief counsel to the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet, and as senior adviser to the Register of Copyrights, U.S. Copyright Office. She wrote this for InsideSources.com.
