Biden’s resolve on tech will face early test in U.S. trade talks

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As a presidential candidate, Joe Biden floated making Silicon Valley giants legally responsible for user material on their platforms. His resolution on the issue is poised to face an early test when his administration takes over trade talks with U.S. allies.

Like President Donald Trump, Biden has called for the repeal of a crucial set of liability protections that shield online companies from lawsuits over the user content they host. But he has yet to say whether his White House will push to enshrine those legal safeguards in U.S. trade pacts, something the Trump administration has continued to do even amid the president’s own attacks against that liability shield.

The issue has emerged as a bipartisan flashpoint in Washington, with a broad cast of lawmakers ranging from Democratic House Speaker Nancy Pelosi to conservative Sen. Ted Cruz (R-Texas) calling on U.S. trade officials to erase that language from their deals. Lawmakers say baking those protections into trade pacts could make it more difficult to revamp the legal shield at the federal level. Congress is considering changes to the law, known as Section 230, amid heightened scrutiny of how tech companies police user material on their sites.

While Biden has called for upending those legal protections — his most aggressive proposal targeting the tech industry to date — lawmakers, foreign leaders, industry executives and advocacy groups told POLITICO in interviews that his administration’s stance on the trade front will signal how serious he is about following through.

“The trade deals will be an early barometer of where the Biden-Harris administration stands on 230,” said Gretchen Peters, executive director of the Alliance to Counter Crime Online, a group that is pushing to revamp the legal shield and strike it from trade deals.

A spokesperson for the president-elect declined to comment on the matter. But a key congressional Democrat said she expects Biden to back their bids to remove the online liability language from U.S. trade pacts.

Rep. Jan Schakowsky (D-Ill.), a leading negotiator on trade issues for House Democrats and a critic of Section 230, said she expects those efforts to be “fertile territory” under Biden.

“The president-elect has not been super friendly to 230, the immunities that are provided, and certainly would not be, I believe, amenable to including those” in U.S. trade pacts, she said.

Schakowsky and other leaders on the House Energy & Commerce Committee have sharply criticized current U.S. Trade Representative Robert Lighthizer for continuing to include language mirroring Section 230 in trade deals, even as Trump has ratcheted up calls for Congress to revoke the legal shield, altogether. While she expects the incoming administration to be more receptive to that argument, Schakowsky said she still plans to keep up the pressure as the White House looks to re-engage global allies in negotiations under Biden.

“I think that that has to be part of the discussion of any early trade agreement,” she said. “We don’t want to extend it any further than it already has been so we’ll be making sure that that question is on the table.”

The Biden administration’s first major decision on the matter could arrive quickly if U.S. efforts to strike a new trade agreement with the United Kingdom spill into next year. If so, Biden’s trade officials will also face pressure from officials overseas to drop the Section 230-like language.

Damian Collins, a conservative Member of Parliament who has spearheaded calls for tougher tech regulations in Europe, said the Trump administration has continued to push for the inclusion of the online liability language in trade talks with the U.K. He’s hoping that the Biden administration will reverse course.

“The change in administration in America should allow a moment to re-look at the trade agreement that’s been proposed so far and … how we can make sure that these Section 230 protections aren’t built in,” Collins said.

The European Union’s Brussels-based institutions are also debating whether platforms should be subject to additional liability for content they host, under pressure from France, which wants to see stronger action against terrorist and other hate speech content, and other member countries.

The push to strike the legal protections from U.S. trade deals is expected to face fierce opposition from tech industry groups, who say Section 230 is crucial for the financial success of a broad swath of online companies — not just tech giants like Facebook and Google.

Jason Oxman, president of tech trade association ITI, said the law has been “absolutely vital to the robust development of the internet.” And he suggested the debate over whether to change the legal protections or remove them from trade agreements should take place outside of a campaign context.

“I think what we have to look forward to is perhaps a removal of the discussion of Section 230 from the campaign and election rhetoric that has surrounded it on both sides,” said Oxman, whose organization represents Google, Apple and other tech companies.

The push to keep the legal liability language in U.S. trade pacts has its own allies on Capitol Hill. Sen. Ron Wyden (D-Ore.), who co-wrote Section 230 as a member of the House in the 1990s, plans to “continue to push for open internet principles consistent with U.S. laws, in trade agreements,” according to a spokesperson.

In an interview with The New York Times published in January 2020, Biden said “Section 230 should be revoked, immediately.” Biden took aim in particular at Facebook and its CEO Mark Zuckerberg, both of whom he said should be subjected to civil liability for “propagating falsehoods they know to be false.” For Biden, who rarely discussed major tech issues like data privacy or antitrust on the 2020 campaign trail, it marked his most distinct stance to date.

Trump has also called for repealing Section 230, but for opposite reasons than Biden. While the Democrat says tech companies haven’t cracked down enough on political misinformation, the president says they’ve “censored” too much content from him and his allies.

“Right now the approach is incoherent,” said Rep. Ro Khanna (D-Calif.), a progressive lawmaker who represents Silicon Valley. “You have literally two different camps on moderation. One camp is telling tech companies to remove more content, and the other camp is saying remove less content.”

Trump has pushed his GOP allies on Capitol Hill to hold hearings drilling into the legal shield, and his Justice Department has proposed legislation to pare back the protections.

Biden, however, has yet to say whether he would push lawmakers on Capitol Hill to repeal the protections, nor has he elaborated on how he thinks they should be replaced, if at all. His campaign told POLITICO in May he plans to seek legislation to hold social media companies accountable for knowingly propagating falsehoods, but has yet to unveil any such proposal. And with his White House set to prioritize coronavirus relief efforts, racial justice and climate change in their early agenda, it’s possible legislative action on harmful online content could slip even further down the line.

Still, critics of the tech industry and its legal shield say they’re optimistic the president-elect will quickly emerge as a leader in the push to revamp them.

“There’s a lot of concern among just regular consumers who feel they have lost any kind of control over the internet and what’s on it," said Schakowsky, "and I absolutely think this will be a very vibrant discussion early on.”

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