Computers, Privacy & the Constitution
The digital era has created a barter system that most people are unaware they are participating in. In exchange for seemingly unlimited freedom to express themselves online, users of social media and other algorithmic online functions are implicitly feeding the digital economy with the right to surveil and collect their personal data. Freedom of expression under the First Amendment is not a bargaining chip with the government. However, online freedom of expression has far less to do with the First Amendment than would be expected for such a pervasive and public forum. One of the shrewdest features of the digital economy is that much of the practical functions of speaking online are controlled by search engines, social media companies, broadband providers and webhosting services owned and operated by private companies. None of these companies are bound by First Amendment protections. Increasingly, the protection of freedom of speech and expression online exists in its own, privately controlled ecosystem, safe from the regulations and protections enshrined in the U.S. Constitution. Without this line of defense, there is little to prevent private companies from overreaching into users’ constitutional freedoms.

Network neutrality regulations are one of the ways in which private infrastructure on the internet can protect users’ freedom of speech and privacy. “Net neutrality” refers to the basic principle that the internet exists as a public utility, similar to electricity or phone services, and that consumers have the right to use the internet without being charged for faster access or censored for content. The idea was built on the concept that consumers should be able to make their own choices about which services they want to use on the Internet, without such services decisions being shaped by what you have access to or who has access to you.

In 2015, that principle prompted the Obama Administration to put in place robust net neutrality protections by ensuring that all data is delivered to all consumers in the United States at the same standard rate. These protections prevented broadband providers from exercising discretion over their power as gatekeepers of data. Under the 2015 FCC rules, users were guaranteed a level internet playing field regardless of content, payment, size, or politics, as opposed to companies being able to outright block or slow the delivery of disfavored content or to distribute data more quickly to companies who paid more (in stark contrast, China’s internet “firewall” sees the Chinese government selectively blocking, censoring and promoting content that suits its own agenda with unfettered impunity). In 2017, however, the FCC voted to eliminate the 2015 protections and instead to embrace a “transparency regime”, under which companies may do what they like vis--vis content access provided this behavior is transparently disclosed.

There are many problems with this regime. First, the “transparency” requirement is easily met by companies burying a line about their behaviors somewhere in their terms of service, which are rarely accessible enough for lay-users of the internet to understand the implications of. Second, no net neutrality means that large internet service providers are authorized to manipulate what and how we consume content online, while keeping the barrier to entry for newer alternatives with less resources too high to be able to challenge the competition. With the courts increasingly holding that free speech rights only apply against government censorship, and that private companies are free to engage in expression regulation without implicating constitutional protections, net neutrality principles fundamentally exist so as to ensure equal access to all service providers in the vast marketplace of ideas that is the Internet. Abolishing these protections places the virtues of the First Amendment at stake, even if technically such protections are neither infringed nor implicated. As we saw with the removal of the Parler app following the insurrection on the U.S. Capitol in January, the Internet is increasingly vulnerable to politicization and constraining Internet platforms’ discretion is essential for our democracy to function as conceived. What’s more, a lack of net neutrality laws in the age of COVID-19, when most people in the country has relied on the Internet in order to access to schoolwork, health care, jobs or unemployment applications, risks providing unequal access to a society reliant not on government intervention but on equally accessible broadband.

An affirmative conception of free speech principles and First Amendment protections must be adapted for the Internet age. The vast majority of human expression and information is now shared and distributed online through presiding private conduits. Entrusting decisions over speech and expression to these private regulators contradicts the democratic principles of free speech that democracy adheres to. Without government intervention, the public is forced to trust the goodwill of private companies, at an age and in an ecosystem where “trust” is at its most precarious and exploitative. Either the state must step in and regulate, or a fundamental rethinking of free speech values must take place.

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r1 - 15 Apr 2021 - 18:25:21 - GiliKarev
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