The North American Free Trade Association (NAFTA) was a free trade agreement between the USA, Canada and Mexico. It became operative in 1994, although free trade between two of the three, Canada and the USA, had existed since 1989.

In 2020 NAFTA was updated by the US-Mexico-Canada Agreement (USMCA). One of the principal differences between NAFTA and USMCA was the inclusion in USMCA of a raft of provisions which set limits on what any of the three countries can do in respect of policies impacting on the internet. In 1989 and 1994 the internet was still in its infancy, a long way from the massive and pervasive presence it has today.

USMCA is not an agreement made by three parties of equal status and power

Lest anyone runs a way with the idea the USA felt obliged to agree to conditions advanced by the Canadians or the Mexicans following discussions between equals, even the most cursory glance at the terms of the deal makes it clear the USA was calling all the key shots. This is not surprising given the size and value of their economy.

Here are some explanatory extracts from the article linked to above

“Unfortunately, not everyone is free to experience the full benefits of the internet age, because so many national governments restrict access to online services and websites…. (emphasis added).

To counter this trend, the USMCA prohibits a broad range of digital trade restrictions…. (ditto)

The agreement’s most important digital trade provisions enshrine policies essential to the effectiveness and operation of the global internet….

Another essential policy mandated by the USMCA is liability protection for online intermediaries. It may seem arcane and technical, but liability protection is a core policy of the laissez-faire approach that enabled the digital revolution to occur in the first place. In the United States, laws like the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act prevent website operators from being held liable for the conduct of users on their sites….. (ditto)

……. liability protections are a key reason why the world’s most successful and innovative internet companies were built in America. (ditto)

The authors of the article did not add, but I will, liability protection is a major reason why the internet is the way it is today. Think “move fast and break things.”

Digital businesses were given unique privileges.  At the time the rules were being set the technology itself and the likely dynamics of the way the internet would develop were poorly understood by policy makers and judges. Thus companies were not incentivised to root out and prevent harm. On the contrary they were incentivised to wrap themselves up and remain inert in the warm blanket of immunity.

Are you getting the picture? So to speak

How did all these clauses and provisions get included in USMCA? Big Tech lobbied for them.  By that I mean Silicon Valley. American Big Tech. They wanted to export the American way, their way.

A more naked statement of self-interest it would be hard to find. Never mind what ideas these pesky “national governments” might get into their heads. “It’s our way or the highway” was the message. US companies were particularly concerned to get certain clauses in USMCA because the Canadian Government and the Canadian Supreme Court in particular were starting to get their act together and be more assertive. They needed putting back in their box.

Nice work if you can get it

Do I blame American tech companies for seeking to further their own interests? No. I do not. Why wouldn’t they? I might have a slight complaint that very often the lobbying done on their behalf was  executed by or through well-funded intermediaries like trade associations because the individual firms did not want to become identified in the public eye with such stark expressions of commercial self-interest and/or nationalist sentiment while, because of a shortage of resources, children’s organizations were not able to mount an effective counter lobby. But hey! Whoever said life was fair? The playing field is not level across a vast acreage, not just here.

So this Wednesday in the UK Parliament

Following the publication last month of the UK Government’s  final response to the consultation on online harms, the UK is about to embark upon its own online regulatory odyssey. I will be writing about that odyssey in due course, meaning soon, but let me say now there is much in what the Government is proposing which I heartily welcome. And a great deal of it would be completely nullified or circumscribed if US interests managed to do a repeat performance in respect of the UK-US trade negotiations currently underway. Our world-leading Age Appropriate Design Code would also be threatened.

We must not let that happen which is why, in the House of Lords on Wednesday 6th January 2021, it is very much to be hoped that as many Peers as possible  will vote in favour of the cross-party amendment standing in the name of Baroness Kidron, Lord Stevenson of Balmacara, Lord Clement-Jones and Lord Sheikh. A big majority in the Lords will encourage  Members in the Commons to get behind it when it reaches them.

PS Just in case it isn’t obvious, similar considerations would apply to any trading bloc or individual country that enters into discussions with the USA about a free trade agreement.