Academics Call on Trump to Address Digital Trade in New NAFTA

The North American Free Trade Agreement (“NAFTA”), is a trilateral trade agreement between Canada, Mexico and the United States that was signed in 1992 and came into force in 1994. Upon coming into office, President Trump has called for the renegotiation of the agreement and is threatening to withdraw altogether.

NAFTA Initialing Ceremony, October 1992 From left to right (standing) Mexican President Carlos Salinas de Gortari, USPresident George H. W. Bush, Canadian Prime Minister Brian Mulroney. (Seated) Mexican Secretary of Commerce and Industrial Development Jaime Serra Puche, United States Trade Representative Carla Hills, Canadian Minister of International Trade Michael Wilson.

The sixth of seven negotiation rounds began this week in Montreal. Canadian Foreign Minister Chrystia Freeland said that this round “will be a high-noon moment . . . for the agreement.” That is because the Trump administration has pursued, what many commentators in the U.S. (including the US Chamber of Commerce), Canada and Mexico deem to be “poison pills’ to sabotage the talks.

During the last round of negotiations, Trump stated a willingness to terminate NAFTA.

The Business Roundtable, however, estimates that withdrawal from NAFTA would lead to a net loss of 1.8 million U.S. jobs within the first year according to a study, which was prepared by Trade Partnership Worldwide.

In this context, Santa Clara Law Professor Eric Goldman, along with 38 leading academics and 16 advocacy groups have called on the North American Free Trade Agreement negotiators to modernize NAFTA to include digital trade

and to include protections for online intermediaries from liability for third party online content, similar to the United States’ “Section 230” (47 U.S.C. §230). Section 230 is directly responsible for the success of major Internet companies that aggregate and publish third party content, including Google, YouTube, Facebook, Twitter, Amazon, eBay, Yelp, Wikipedia, and so many more.

The full letter is below.

The Electronic Frontier Foundation has questioned this push.

The difficulty with the inclusion of Section 230 style safe harbors in NAFTA is that it would either require Canada and Mexico to change their law, or it would require the provision to be watered down in order to become compatible with their existing law—which would make its inclusion pointless. Therefore, the first option is the better one. For Canada, in particular, strengthening legal protection for Internet platforms could help roll back the precedent set in the Google v. Equustekcase, in which the Canadian Supreme Court required Google to globally de-index a website that purportedly infringed Canadian trade secret rights.

View this document on Scribd