WASHINGTON -- Big internet companies are pushing for language in a renegotiated North American Free Trade Agreement that would undercut attempts by members of Congress, including many from the St. Louis area, to curb liability protection for platforms that host the controversial online advertising site Backpage.

Until recently, the prime policy fights surrounding Backpage, which critics say runs ads for illegal sex, have been in Congress and in the states.

A spate of bills in Congress aimed at Backpage, including those primarily sponsored by Rep. Ann Wagner, R-Ballwin, and Sen. Claire McCaskill, D-Mo., are aimed at curbing legal protection for internet platforms contained in the 1996 Communications Decency Act. Internet companies are fighting them, saying that those protections are necessary for robust economic growth on the internet, and point out that they do not protect illegal activity.

Now the fight has gone international, as President Donald Trump has begun following through on campaign promises to rewrite trade deals.

As new NAFTA talks began this month, major internet companies pressured United States Trade Representative Robert Lighthizer to include language mirroring Section 230 of the 1996 Communications Decency Act, which protects third-party platforms that host sites, including Backpage, from liability on content posted by those sites.
Section 230 says, in part: “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.”

The Internet Association, which represents Google and other internet giants along with the United States Chamber of Commerce, the Electronic Frontier Foundation and other internet and trade groups, supports “the inclusion of intermediary liability protections in free-trade agreements like NAFTA,” said Internet Association President and CEO Michael Beckerman.

“These laws allow online platforms — everything from social media to restaurant reviews to sharing-economy sites — to operate,” he said, pointing out that the original NAFTA agreement “was written when the commercial internet did not exist.”

But opponents, including organizations fighting online sex trafficking, asked Lighthizer to “ignore calls from tech industry associations on behalf of tech giants like Google, Facebook and Twitter, to include language in a new NAFTA deal that would protect notorious websites like Backpage,” according to the Consumer Watchdog’s John Simpson.

Consumer Watchdog is funded by various liberal donors, and it has been highly critical of Backpage and of Google and other defenders of the third-party protections.

“Backpage is the prime example of how Section 230 of the Communications Decency Act allows websites to escape accountability for enabling child sex-trafficking,” said Simpson.

But the Internet Association’s Beckerman said that the Section 230 protection is “one of the few laws in the U.S. that allows the internet sector to grow and prosper here in America. It’s fundamental to the sector’s success.”
“It’s also important to note that intermediary liability is not blanket amnesty and does not protect individuals who break the law,” Beckerman said. “Platforms — as the law currently stands — are held criminally liable for knowingly assisting in illegal activity and individual acts that are subject to criminal law.”

Backpage lawyer Liz McDougall did not comment, but she has previously argued that Backpage has cooperated with law enforcement and that driving Backpage out of the sex advertising business would disperse online sex trafficking to darker areas of the internet.

The USTR communications office also said it would have no comment. Attempts to reach Google for a response were not successful.

Simpson said his organization has discovered that Google is funding many groups pushing for the protections in trade deals.

U.S. officials began negotiations on a new NAFTA with Canadian and Mexican counterparts earlier this month.
Lighthizer did not specifically mention third-party liability in a July statement of “NAFTA negotiating objectives.”
But Lori Wallach, director of global trade watch at the consumer advocacy organization Public Citizen, said such details were likely to arise in later negotiations, and that such provisions are often tucked in hard-to-find areas of international agreements. She also said that if future trade deals included third-party liability protection, it would effectively trump congressional action aimed at companies like Backpage.

“Basically, the trade agreements have become Trojan Horse mechanisms to lock in various … policies unrelated to trade,” she said.

Wallach said that if Section 230-like protections were included in a renegotiated NAFTA or other trade deals, congressional action like that pursued by Wagner, McCaskill and others, “would be a violation of the trade agreement that would basically make it impossible to change the laws.”

McCaskill last year helped push through a contempt of the Senate declaration on Backpage, and she and Sen. Rob Portman, R-Ohio, issued a scathing report on what they alleged were the site’s promotion of the sex trade and the exploitation of trafficked minors.

Missouri Attorney General Josh Hawley also launched his own investigation of Backpage this year.
McCaskill said efforts to put protections in NAFTA is “not going to work.”

“We are going to rise up and we will rise up on a bipartisan basis. I understand the paranoia of the tech industry, but really, the Senate bill only applies to sex trafficking,” she said. “It doesn’t apply to anything else.”
She also pointed out that a new NAFTA would require Senate approval and “they’re going to run into a brick wall if they try to put that in NAFTA.”

Wagner is in China on a congressional trip and unavailable for comment. A spokeswoman, Ali Pardo, said that “the fact that big tech is fighting to spread this protection for online sex trafficking to all of North America, instead of joining the fight to end the online slave trade, is sickening.”

Wagner, McCaskill, and other members of the Missouri delegation in July asked the Justice Department to investigate Backpage after allegations were raised that a contractor for the company was placing sex trafficking ads on the site.

“Sadly,” Pardo, Wagner’s communications director, said, “this is just the latest example of these companies desperately fighting to protect their bottom line by defending their ‘right’ to advertise and facilitate online sex trafficking.”

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