Silicon Values

The Future of Free Speech Under Surveillance Capitalism

Jillian C. York

• Publisher: Verso
• Year: 2021
• ISBN:
  9781788738835
• Topic: Politics & International Relations
• Subtopic: Political Surveillance & Privacy
• Index: Politics & International Relations

The Internet once promised to be a place of extraordinary freedom beyond the control of money or politics, but today corporations and platforms exercise more control over our ability to access information and share knowledge to a greater extent than any state. In Silicon Values, leading campaigner Jillian York, looks at how our rights have become increasingly undermined by the major corporations desire to harvest our personal data and turn it into profit. She also looks at how governments have used the same technology to monitor citizens and threatened our ability to communicate. As a result our daily lives, and private thoughts, are being policed in an unprecedented manner. Who decides the difference between political debate and hate speech? How does this impact on our identity, our ability to create communities and to protest? Who regulates the censors? In response to this threat to our democracy, York proposes a user-powered movement against the platforms that demands change and a new form of ownership over our own data.

1

The New Gatekeepers

On a day to day basis, the rules that apply most directly to people on the internet are the rules set and enforced by intermediaries.

—Nic Suzor

Imagine a society where the laws are created behind closed doors, without public input or approval. This is a society where at any time the laws are subject to change, or be replaced with new ones altogether. There is no democratic participation, no transparency, and no due process—and the laws are enforced by minimally trained workers in faraway locales who often lack awareness of local conditions or, increasingly, by trained machines. Mistakes are, of course, inevitable and plenty, but when they’re made, individuals rarely have the means to rectify them.

This society exists, inside the social media platforms created in Silicon Valley and exported throughout the rest of the world. These platforms—such as Google, Facebook, YouTube, Twitter, and Tumblr—now exert control over the speech and visual expression of billions of the world’s citizens. As of 2020, Facebook alone has more than 1.7 billion daily active users—about 300 million greater than the population of China.

Although they lack the heavy weaponry of nation-states, the role of dominant platforms “in the international legal order increasingly resembles that of sovereign states,” argues legal scholar Julie E. Cohen.¹ For the impact that their regulations on speech have on ordinary individuals the world over, this argument is absolutely true—and also runs counter to the ethos of both Silicon Valley and the early cyberlibertarian thinkers, whose optimistic philosophies still hold significant sway in the Valley today.

In his manifesto, “A Declaration of the Independence of Cyberspace,” internet philosopher John Perry Barlow beautifully rails against the world’s governments on behalf of fellow members of the online community, declaring “the global space [they] are building to be naturally independent of the tyrannies you seek to impose” on them. “Cyberspace does not lie within your borders,” he claims, deeming it “an act of nature” that grows itself through “our collective actions.”²

Barlow, who died in 2018 after a long illness, viewed the internet as “a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity,” a world where the legal concepts of “property, expression, identity, movement, and context do not apply …” for “they are all based on matter, and there is no matter here.”

The manifesto was written in 1996 during the World Economic Forum in Davos, on the same day that President Bill Clinton signed into law the Communications Decency Act, an attempt to ban “obscene” material on the internet. Barlow was well aware of the looming threat from governments to the freedom provided by the internet, having co-founded the Electronic Frontier Foundation six years prior.

Science fiction writer Bruce Sterling also stands among those who wrote of the early promise of freedom online; in his 1992 “A Short History of the Internet,” he argues that the main reason people want to be on the internet is “simple freedom,” adding that “the Internet is a rare example of a true, modern, functional anarchy. There is no ‘Internet Inc.’”³

Growing up in the 1990s, I too believed anything was possible online. Although my first interactions with the World Wide Web were through Prodigy, an early provider not unlike the more popular AOL, I never encountered speech restrictions of any kind until well into the aughts. My early Web adventures were exciting—exhilarating even—and not without risk; I experienced harassment, hate speech. I witnessed images I cannot erase from my mind even today. All of the things, in other words, that today’s platforms are attempting to banish. But I also made lasting friendships that took me on some of my first solo trips to other US states, and learned things about the world that were not taught in my small-town public school.

Barlow saw the internet as a place beyond the reach of states, an unregulatable space in which a new form of governance—based on the Golden Rule—might emerge. Sterling saw the internet as belonging to “everyone and no one.”⁴ Both of them foresaw the influence that states would inevitably exert over the Web, but neither quite imagined what the next generation, undoubtedly influenced by their ideas, might accomplish through unbridled neoliberal capitalism.

A brief history of censorship

Throughout history, various bodies have imposed rules on what ordinary citizens can see or say. Traditionally, this was the domain of the church or the monarchy, but with the emergence—from the 1648 Peace of Westphalia—of nation-state sovereignty as a basic ordering principle for societies, the nation-state and the lesser governance structures contained within it became the predominant arbiter of what people can do or say, and which information they can access.

Today, throughout the world, most societies have agreed that democratically elected governments have some right to control our expression and access to information, though the degree to which each society believes in such a right varies—as does, of course, the degree to which governments exert such control.

Until the advent of the internet, censorship was a localized endeavor. A government (whether democratic or not) might decide that a given book, film, work of art, or newspaper article violated its laws or its sensibilities and barred access to it. Methods of censorship throughout history and the world have varied considerably: Whereas in the Soviet Union, it was common for the government to withhold information from its citizens by erasing content from books and reprinting them anew, and jailing writers who crossed red lines known or unknown, in modern-day Saudi Arabia, the government prefers to black out or otherwise obscure offending words and images in imported magazines or films while simultaneously barring the creation of certain content locally. Both medieval Italy and pre-modern Britain utilized the fig leaf to desensationalize works of art, while present-day Turkey and Morocco—who share Islam in common but otherwise have considerably varied histories and systems of government—have imprisoned those who dare insult the country’s rulers living or dead.

Often, the more democratic a state, the more transparent it is when it comes to censorship. Germany’s Basic Law, adopted as the country’s constitution when it reunified in 1990, guarantees freedom of speech, press, and opinion but allows for limits for the protection of young persons and the right to personal honor. Modern Germany’s criminal code further restricts Volksverhetzung, or “incitement of popular hatred,” Holocaust denial, certain forms of insult, and a handful of other things. Furthermore, provisions exist against “anti-constitutional politics,” such as having membership in National Socialist and other neo-Nazi parties, but also the far-left Red Army faction. These laws, while often controversial, are fully communicated to the public and the text of them is found easily in libraries or on the internet. Though citizens of Germany and other states that apply such measures may disagree with them, those who violate the law do so knowingly and with the awareness that there will be consequences.

Defined by Wikipedia’s global contributor base as “the suppression of speech, public communication, or other information, on the basis that such material is considered objectionable, harmful, sensitive, or ‘inconvenient,’” censorship is essentially the act of an authority asserting its dominance—and its values—over the public by imposing regulations, punishments, or other measures on expression to which it objects.

“Censorship” is in itself an inherently value-neutral term. There is censorship of which one approves (a majority of Germans, for instance, support the prohibition on Holocaust denial) and which one finds unconscionable—and what constitutes each of these categories differs from one society, or even one person, to the next. Most of the world’s governments see value in censoring hate speech to some degree, but relatively few impose restrictions on insulting the country’s rulers.

Although censorship as a concept is value-neutral, it is all too often used only to describe the restrictions of which we disapprove. The United States, which has arguably the world’s most permissible laws around speech, still enacts certain limits, one of which is on child sexual exploitation imagery (more commonly, and unfortunately, referred to as “child porn”). This is a restriction put in place to protect children that all but the most depraved individual might agree with; it is also—despite that consensus—censorship. It is, simply put, censorship of which we approve.

Furthermore, freedom of speech (or freedom of expression) is not a synonym for the US Constitution’s First Amendment or equivalent legal rights.⁵ Freedom of expression is, rather, a concept that dates back to, at least, ancient Greece. In Athens, all male citizens,⁶ rich or poor, were encouraged to address the democratic assembly, thus participating in the governance of the city-state. This concept, isegoria, formed the fundamental basis for Athenian society, while another —parrhesia—gave license to society’s philosophers to speak truth to power. Freedom of expression in Athens, as readers well know, was not without limits: the vote to convict Socrates may have been democratic, but it nonetheless resulted in the ultimate silencing of his speech.

Knowing the history of censorship—and resistance to the term—might help readers to understand our current dilemma. Today’s gatekeepers of speech, as I will demonstrate in this book, are not only nation-states, but giant global internet corporations that have become, in the words of Australian scholar Nic Suzor, a “key actor in governing our lives.”⁷ They are simultaneously bound to no one and to many, resulting in a complex tangle of rules that has become unnavigable even to experts, let alone their users. And, as a result, they are having a massive and under-documented impact on our speech, our individual and collective agency, our culture, and our memory.

The new gatekeepers

While John Perry Barlow was brushing shoulders with the Davos elite, a young Mark Zuckerberg was at home in Westchester County, New York, coding his first social network, ZuckNet, which linked together the computers between his home and his father’s dental practice. Meanwhile, across the country, Larry Page and Sergey Brin were at Stanford, forming an unshakable bond that, in a few short years, led to the incorporation of Google. And a young, restless Jack Dorsey was away at college in Missouri, ready to graduate so he could get to work.

These young would-be founders grew up with the same internet that I did, an internet where anything felt possible. They arrived around the turn of the century to a Silicon Valley whose predominant ideology was libertarianism, where laissez-faire capitalism was embraced and regulations pooh-poohed. They embraced the Californian Ideology and built their empires in its image.

The companies that Zuckerberg, Page and Brin, and Dorsey founded—Facebook, Google, and Twitter, respectively—launched during a period in which restrictions on online speech were minimal. The Digital Millennium Copyright Act, enacted in 1998, placed restrictions on the sharing and dissemination of copyrighted content, and extended responsibilities to platforms that might play host to such content. A handful of governments had found ways to restrict access to particular websites, while still others restricted access altogether, providing access only to certain citizens through licensing or other schemes. By and large, however, the electronic frontier remained a free-for-all.

Debates in the 1980s and 1990s over the widespread availability of pornography in the United States—dubbed the “porn wars”—led to the authorization of the Communications Decency Act in the United States, which was later deemed unconstitutional, though a piece of it—Section 230—survived that set the stage for social media platforms to flourish. Now known as Section 230 of the US Telecommunications Act and codified as 47 U.S.C. § 230, that original component of the Communications Decency Act was intended as a safe harbor for internet service providers and search engines. It allowed for these providers to argue that they were not publishers, but only provided access to the internet or conveyed information, and therefore could not be held liable for their users’ speech.

Section 230 has two components: The first prevents intermediaries from being held liable for the speech of their users, not unlike the protections afforded to telephone companies. This is an important provision, without which companies would be incentivized to proactively police their users’ speech, thus inhibiting them from innovation and growth.

The second component gives intermediaries the ability to police their users’ speech or actions without losing their safe harbor protections. Before the creation of Section 230, an internet intermediary risked liability for illegal or defamatory postings by its users if it moderated content on its services. Without this second component, it was more difficult for intermediaries to protect their customers from harassment or other abuse without facing legal risk for other content they might not be aware of.

Nic Suzor proposes that Section 230 “firmly establishes the ground rules for lawsuits over internet content: a victim can sue the person who is directly responsible for causing harm online but can almost never sue the service providers who host the content or facilitate communications. It is hard to overstate the significance of [Section] 230. The safe harbor that it provides is very generous: it gives platforms the right, but not the responsibility, to remove content as they see fit.”⁸

The downside of how intermediaries are regulated, of course, is the fact that the rules of the road can be and are determined by unelected leaders with no particular qualifications, and can be changed at a whim. An intermediary can censor speech or permanently boot a user from using its services, for any or no reason at all. In other words, as scholar Rebecca Tushnet explains: “Current law often allows Internet intermediaries to have their free speech and everyone else’s too.”⁹

This matters less when a platform is small or niche, created for a specific purpose—few would argue that Jewish dating service Jdate should have to play host to Christians, or that a site for knitting enthusiasts should have to become a space for political debate. But over the years, a handful of large, all-purpose platforms have become the agora for billions of people worldwide. Although Facebook or Twitter are, legally speaking, akin to the shopping mall, to their early users they were more a virtual public sphere, in which ideas and information could be exchanged and all had an equal opportunity to contribute to public debate.

Though many would (and have, in criticisms of my work) argue that we should have no expectations of freedom within the corporate confines of these platforms, it is not without reason that many have that expectation. As the following chapters illustrate, these platforms’ founders led us to believe early on that their sites were spaces for the free exchange of ideas. While none of them emerged without any rules, over time—as their popularity and user bases have grown—so too have the restrictions they place on what we can and can’t do or say, as well as the pressure placed upon them by external entities. As such, we should view platforms as operating as the “New Governors” of online speech.

“These New Governors,” writes legal scholar Kate Klonick, “are part of a new triadic model of speech that sits between the state and speakers-publishers. They are private, self-regulating entities that are economically and normatively motivated to reflect the democratic culture and free speech expectations of their users.”¹⁰

The triadic model of which Klonick writes can be attributed to Jack Balkin, a US constitutional law scholar who has written extensively about civil liberties on the internet...