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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.
âNic 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 processâand 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 theyâre 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 platformsâsuch as Google, Facebook, YouTube, Twitter, and Tumblrânow exert control over the speech and visual expression of billions of the worldâs citizens. As of 2020, Facebook alone has more than 1.7 billion daily active usersâabout 300 million greater than the population of China.
Although they lack the heavy weaponry of nation-states, the role of dominant platforms âin the international legal order increasingly resembles that of sovereign states,â 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 trueâand 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, âA Declaration of the Independence of Cyberspace,â internet philosopher John Perry Barlow beautifully rails against the worldâs governments on behalf of fellow members of the online community, declaring âthe global space [they] are building to be naturally independent of the tyrannies you seek to imposeâ on them. âCyberspace does not lie within your borders,â he claims, deeming it âan act of natureâ that grows itself through âour collective actions.â2
Barlow, who died in 2018 after a long illness, viewed the internet as âa world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity,â a world where the legal concepts of âproperty, expression, identity, movement, and context do not apply âŠâ for âthey are all based on matter, and there is no matter here.â
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 âobsceneâ 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 âA Short History of the Internet,â he argues that the main reason people want to be on the internet is âsimple freedom,â adding that âthe Internet is a rare example of a true, modern, functional anarchy. There is no âInternet Inc.ââ3
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 excitingâexhilarating evenâand 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 todayâs 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 governanceâbased on the Golden Ruleâmight emerge. Sterling saw the internet as belonging to âeveryone and no one.â4 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 emergenceâfrom the 1648 Peace of Westphaliaâof 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 variesâas 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 Moroccoâwho share Islam in common but otherwise have considerably varied histories and systems of governmentâhave imprisoned those who dare insult the countryâs rulers living or dead.
Often, the more democratic a state, the more transparent it is when it comes to censorship. Germanyâs Basic Law, adopted as the countryâs 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 Germanyâs criminal code further restricts Volksverhetzung, or âincitement of popular hatred,â Holocaust denial, certain forms of insult, and a handful of other things. Furthermore, provisions exist against âanti-constitutional politics,â 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 Wikipediaâs global contributor base as âthe suppression of speech, public communication, or other information, on the basis that such material is considered objectionable, harmful, sensitive, or âinconvenient,ââ censorship is essentially the act of an authority asserting its dominanceâand its valuesâover the public by imposing regulations, punishments, or other measures on expression to which it objects.
âCensorshipâ 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 unconscionableâand what constitutes each of these categories differs from one society, or even one person, to the next. Most of the worldâs governments see value in censoring hate speech to some degree, but relatively few impose restrictions on insulting the countryâs 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 worldâs 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 âchild pornâ). This is a restriction put in place to protect children that all but the most depraved individual might agree with; it is alsoâdespite that consensusâcensorship. It is, simply put, censorship of which we approve.
Furthermore, freedom of speech (or freedom of expression) is not a synonym for the US Constitutionâs 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 âparrhesiaâgave license to societyâs 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 censorshipâand resistance to the termâmight help readers to understand our current dilemma. Todayâs 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 âkey actor in governing our lives.â7 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 fatherâs 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 foundedâFacebook, Google, and Twitter, respectivelyâlaunched 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 Statesâdubbed the âporn warsââled to the authorization of the Communications Decency Act in the United States, which was later deemed unconstitutional, though a piece of itâSection 230âsurvived 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 usersâ 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 usersâ speech, thus inhibiting them from innovation and growth.
The second component gives intermediaries the ability to police their usersâ 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 âfirmly 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.â8
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: âCurrent law often allows Internet intermediaries to have their free speech and everyone elseâs too.â9
This matters less when a platform is small or niche, created for a specific purposeâfew 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 platformsâ 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 timeâas their popularity and user bases have grownâso too have the restrictions they place on what we can and canât do or say, as well as the pressure placed upon them by external entities. As such, we should view platforms as operating as the âNew Governorsâ of online speech.
âThese New Governors,â writes legal scholar Kate Klonick, âare 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.â10
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...