Exporting the first amendment through trade: the global 'constitutional moment' for online platform liability

• Author: Han-Wei Liu
• Position: Senior Lecturer, Monash University, Australia
• Pages: 1-56

ARTICLES

EXPORTING THE FIRST AMENDMENT THROUGH

TRADE: THE GLOBAL “CONSTITUTIONAL

MOMENT” FOR ONLINE PLATFORM LIABILITY

HAN-WEI LIU*

ABSTRACT

The United States in the recent United States-Mexico-Canada Agreement

and Japan-U.S. Digital Trade Agreement adopts a new clause which mirrors

Section 230 of the Communications Decency Act of 1996, shielding online

intermediaries from third-party contents liability. For policymakers, the seem-

ingly innocuous “Interactive Computer Services” title creates the fundamental

challenge in balancing free speech against competing interests in the digital

age. This Article argues against globally normalizing this clause through its

diffusion in trade deals. Internally, as the Biden Administration has

offered a clean slate to discuss reforms to the controversial regime, it is

unwise for U.S. trade negotiators to export the same clause in future nego-

tiations. Externally, it is problematic for other partners to accept this clause,

born from American values deeply rooted in the First Amendment. Each

country is entitled to achieve the fundamental right of free speech through

their own economic, social, and political pathways, towards an optimal

balance—and rebalance—against other interests. The clause should be

dropped from future trade negotiations while policymakers worldwide grap-

ple with the challenges posed by online platforms and reconf‌igure their regu-

latory frameworks in the digital era.

* Senior Lecturer, Monash University, Australia. Earlier drafts of this paper were

presented at the 2021 Biennial Conference of the Asian Society of International Law, the

European Society of International Law (ESIL)-Kraków-Leiden Second Symposium on

“Exploring the Frontiers of International Law in Cyberspace,” the Seventh Biennial

Global Conference of the Society of International Economic Law (SIEL), and the 2021

Online Research Workshop on Digital Trade Law Governance in the Asia-Pacif‌ic by

National Yang Ming Chiao Tung University School of Law (Taiwan). The author is grateful

for the comments of the participants of these conferences and would like to thank Petros

Mavroidis (Columbia), Ching-Fu Lin (National Tsing Hua University), Thomas Streinz (NYU),

Mengyi Wang (Graduate Institute, Geneva), and Lucia Oriana (UNSW) for their comments. The

author thanks Tiana Moutaf‌is, Grace Pittar, Lourdes Luna Valdez, Guanqing Liu, and Max Davie

for excellent research assistance. The author can be reached at han-wei.liu@graduateinstitute.ch.

Usual disclaimers apply. V

C 2021, Han-Wei Liu.

1

I. INTERACTIVE COMPUTER SERVICES: WHAT IS IN THE NAME?. . . . . . . 2

II. SHAPING THE NORMATIVE ORDER OF ONLINE SPEECH THROUGH TRADE 8

A. The Rise of the Intermediary Immunity Clause in Trade Agreements 8

B. Anatomy of the Intermediary Immunity Clause: A Contextual

Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. The Intent of Intermediary Immunity Clause and

CDA 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. The Structure of Intermediary Immunity Clause and

CDA 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. A Deep Dive Reading of CDA 230 and Intermediary

Immunity Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. The Normative Impacts of The Intermediary Immunity

Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1. Clarifying the Scope of Liabilities. . . . . . . . . . . . . . . 22

2. ONLINE Platforms as the New Global Ruler of

Internet Speech in the Post-Intermediary Immunity

Clause Era? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

3. Intermediary Immunity Clauses: All Bark and No Bite? 29

III. THE CASE AGAINST INTERMEDIARY IMMUNITY CLAUSE THROUGH TRADE 37

A. Locking the U.S. in with Moderator’s Dilemma . . . . . . . . . . . . 38

B. MY Trade, Your First Amendment—External Boundaries of

Intermediary Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

I. INTERACTIVE COMPUTER SERVICES: WHAT IS IN THE NAME?

International trade agreements have been viewed by some—espe-

cially major trading powers like the United States (U.S.)—as a promis-

ing tool to export their domestic laws, substantive or procedural, in the

name of harmonization. On substantive laws, a prime example is that

the U.S. has pursued intellectual property rights (IPRs) through prefer-

ential trade agreements (PTAs).

1

Likewise, the U.S. has attempted to

1. See, e.g., Kenneth Chiu, Harmonizing Intellectual Property Law Between the United States and

Singapore: The United States—Singapore Free Trade Agreement’s Impact on Singapore’s Intellectual Property

Law, 18 GLOB. BUS. & DEV. LAW J. 489, 499 (2005) (reporting that in the early 2000s, Singapore

did not “appear to have an interest in increasing intellectual property” for the lack of “a large

amount of intellectual property owners within its borders” and although it is true that Singapore

viewed “adopting foreign standards as a part of trade agreements” to strategically benef‌it its

economic development, it is also obvious that the U.S. has leveraged the trade negotiations by

requesting Singapore to align its IPRs laws with those of its own). On this score, see generally

Margot E. Kaminski, The Capture of International Intellectual Property Law Through the U.S. Trade

Regime, 87 S. CAL. L. REV. 977, 983–89 (2014) (outlining the sea change of the U.S. trade policy in

relation to IPR protection and suggesting that the IPR arrangements in the U.S. trade agreements

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

2 [Vol. 53

export its Administrative Procedure Act (APA) type of rulemaking pro-

cess by the “regulatory coherence” or “good regulatory practices” mecha-

nisms in recent mega-regional pacts, notably, the Comprehensive and

Progressive Agreement for Trans-Pacif‌ic Partnership (CPTPP) and the

United States-Mexico-Canada Agreement (USMCA).

2

Comprehensive and Progressive Agreement for Trans-Pacif‌ic Partnership ch. 25, opened for

signature Mar. 8, 2018, [2018] A.T.S. 23. (entered into force Dec. 30, 2018) [hereinafter CPTPP]

(incorporating, by reference, the provisions from the Trans-Pacif‌ic Partnership). Although the

U.S. has left the TPP, Chapter 25 on Regulatory Coherence remains intact. See Agreement between

the United States of America, the United Mexican States, and Canada ch. 28, Nov. 30, 2018, Off‌ice

U.S. Trade Rep., https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-

canada-agreement/agreement-between [hereinafter USMCA]. For a detailed analysis of the global

norm diffusion of regulatory coherence, see generally Regulatory Rationalisation Clauses in FTAS: A

Complete Survey of the US, EU and China, 19 MELB. J. INT’L L. 1 (2018).

With the data-

driven economy continuing to grow and “Big Tech” penetrating virtually

every corner of our digital life,

3

the U.S. has quietly set yet another

foothold for its high-tech f‌irms by exporting Section 230 of the

Communications Decency Act of 1996 (CDA 230) in the name of

“Interactive Computer Services” under the USMCA and later the

Japan-U.S. Digital Trade Agreement (Japan-U.S. DTA).

4

CDA 230 is, in short, the provision that affords online intermediaries broad immunity in

respect of legal claims arising from the content posted by users on their platforms.

Communications Decency Act of 1996, Pub. L. No. 104-104, §502, §223 (a), (e)(5), 110 Stat. 56,

133-34 (1996) (codif‌ied as amended at 47 U.S.C.A. § 230 (2018)); see Agreement between the

United States and Japan Concerning Digital Trade, Japan-U.S., Oct. 7, 2019, https://ustr.gov/

sites/default/f‌iles/f‌iles/agreements/japan/Agreement_between_the_United_States_and_Japan_

concerning_Digital_Trade.pdf [hereinafter Japan-U.S. DTA].

While aligning the normative order of the online environment with

U.S. domestic laws and policies through international trade and invest-

ment agreements is nothing new,

5

much of the existing literature

focuses more on American efforts pushing the unfettered cross-border

data f‌low and the implications of the U.S.-EU divide on data protection

are “close to, but not precisely, the U.S. law”). One may however argue that such a pattern

predated the turn to free trade agreements and thus inf‌luenced the Uruguay Round and the

TRIPs Agreement.

2.

3. The term “Big Tech” often refers to four major technology f‌irms in the U.S., including

Facebook, Apple, Google, and Amazon (FAGA). Occasionally, Microsoft is added to the list. See,

e.g., Richard Waters, Move Over Faangs, Make Way for Maga, FIN. TIMES (July 28, 2018) (referring to

“Maga” as including Microsoft, Apple, Google, and Amazon).

4.

5. Some commentators however argue that the U.S. trade policy has not adequately addressed

the digital economy and its contributions. See, e.g., Markham C. Erikson & Sarah K. Leggin,

Exporting Internet Law Through International Trade Agreements: Recalibrating U.S. Trade Policy in the

Digital Age, 24 CATH. U. J. L. & TECH. 317, 318 (2016).

EXPORTING THE FIRST AMENDMENT THROUGH TRADE

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