The current online speech regulatory structure resembles Lochner-era libertarian and laissez-faire economic policy.
By Ashley M. Gjøvik
Freedom of expression is a fundamental human right and includes both the rights to speak freely and to listen to the speech of others.1 Most legal systems recognize the concept of a public forum: that speech requires space for ideas to be offered and debated: where we each have freedom to speak individually, to shop in the marketplace of ideas, and to choose the ideas we find most persuasive.2 The internet, as a neutral forum for deliberation and debate, facilitates freedom of expression and the realization of other human rights.3
Speech is at the core of the democratic process. When speech is censored, those impacted begin to self-censor, which chills public discussion and debate. The correlation between censorship and tyranny is well known:
“Those who [eliminate] dissent soon find themselves exterminating dissenters; compulsory unification of opinion achieves only the unanimity of the graveyard.”
— Supreme Court of the United States (1943)4
Who ultimately governs freedom of expression and other human rights? After the horrors of World War II, there was worldwide consensus that human rights should be protected by the international community, and not only by individual states, because national governments and domestic laws do not provide sufficiently stable safeguards.5 Private companies should not get to govern human rights either, but they are obligated to respect and protect international human rights, and remedy any human rights abuses caused by their business activities.6
The private sector has gained unprecedented influence over individual’s right to freedom of expression and access to information. Today, we find ourselves in a world where private companies act as human rights gatekeepers, government intermediaries, and even cyber-sovereigns.7 Private actors were never supposed to be empowered to make or adjudicate law.8 Private regulation invites corruption, arbitrary decisions, and blurs the lines between public and private spheres. Technology companies undertaking traditionally public functions become de facto private cyber-regulators and cyber-police.9
By delegating to private actors, states are able to run-around the rule of law, and bypass established checks and balances.10 Conferring private individuals with the authority to regulate “the affairs of an unwilling minority” is “legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.”11 Indeed, public U.S. companies have a fiduciary duty to act in the interests of their shareholders, not in the interest of the common good. 12
“One way the government can regulate without accountability is by passing off a government operation as an independent private concern.”
— U.S. Supreme Court Justice Samuel Alito 13
The current regulatory structure of online speech resembles Lochner-era libertarian and laissez-faire economic policy. Laissez-faire policy promoted minimal government interference in the economic affairs of individuals and society, such as today when governments are deferring to technology companies to make market-based decisions about fundamental human rights. With secret regulations written and enforced by private actors, there is little accountability or transparency. The controls are invisible and the invasions and frustrations of human rights occur in the darkness. While a government claims some local rule and a company claims some private contract, state and private power are commingled, public and private governance collide, and the people are fortunate if they even hear a crash.
Even in cyberspace, the fundamental right to due process requires targeted restrictions are provided with a reasoned explanation, indicating what evidence was relied upon, and a way to appeal decisions.14 To protect against arbitrary encroachment, due process also requires some form of hearing before an individual is deprived of property or a liberty interest. Due process demands that a law be clear enough for a person to anticipate the consequences for violating it. 15
Legitimate restriction to freedom of information & expression requires transparency about what is restricted, that the restrictions are necessary for a legitimate purpose and established in law, are narrowly tailored and proportional to the purpose, and contain accountability to the people the restriction seeks to protect.16 “Laws which are so incoherent that they cannot be understood pose a serious threat to liberty.” 17
Content moderation by transnational technology companies at the request of foreign governments, also inherently implicates foreign affairs. In the U.S., governmental power over foreign affairs powers are vested exclusively within the national government.18 International affairs are not to be subject to interference from the states or private actors.19 Further, many transnational technology companies are subject to persuasion and coercion (if not outright control) by foreign states through licenses, property, assets, and local employees in the states in which they do business.
Apple is known to censor: applications, music, podcasts, books, movies, television, flag emojis, political terms (digital and physical), and inclusive design.20 As AppleCensorship wrote last year, “Despite its claim of practicing transparency in its management of users’ data and the App Store, Apple does not always inform developers when it removes their apps, and when it does provide notice, it typically uses vague accusations of illegality or violation of Apple policies. Apple must become more transparent about its actions. Whenever Apple removes an app from one of its App Stores, it needs to reveal the law and/or Apple policy the app broke, and it should provide for a chance at appealing the removal. It should provide such information not only to developers, but also to the general public.” 21
Apple’s so-called Transparency Reports do not reveal which apps have been censored, and remain questionably vague on the reasons, legal or not, behind this censorship. The resulting opacity has become Apple’s true trademark: from how it curates content on the App Store; to how it implements its arbitrary App Store Guidelines; to what data it communicates to governments; to the deals the company makes with even the most repressive regimes in the world. Apple conceals almost everything about its operations. 22
In 2021, after working at Apple for nearly seven years, I went public with documents and testimony to expose Apple’s corruption, hypocrisy, and reckless disregard for human rights. While I worked with a lot of good, well-intentioned people at Apple, Apple’s leadership have been shown to lie, cheat, steal, and evade the law in order to drive profit. Those at the helm of the ship are steering Apple, and us along with it, into a storm.
We need NGOs, press, and other watchdogs to report on these issues, to name and shame, and demand a better system. However, while it is a start, it will not be enough on its own. Formal national and international action will be required to ensure global transparency, accountability, due process, and the protection of human rights in cyberspace, as everywhere else.
States receive legitimacy by consent of the governed. The longer we allow corporations to act as delegated, private police forces and iRegulators, the more we acquiesce and consent to their unlawful power.
We must resist.
— Ashley M. Gjøvik
This is the forward I wrote for GreatFire’s 21 April 2022 AppleCensorship watchdog report: “Taken Down” A Look into Apple’s Transparency Reports [link]. Substack version: [link]
Footnotes:
1. U.N. G.A. A/HRC/17/27; Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Human Rights Council (2011); Derek E. Bambauer, Orwell’s Armchair, University of Chicago Law Review Volume 79 Summer 2012 Number 3 (2012)
2. Derek E. Bambauer, Orwell’s Armchair, University of Chicago Law Review Volume 79 Summer 2012 Number 3 (2012)
3. U.N. G.A. A/HRC/17/27; Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Human Rights Council (2011); Nathalie Maréchal1, Ranking Digital Rights: Human Rights, the Internet and the Fifth Estate, International Journal of Communication 9 (2015).
4. West Virginia State Board v. Barnette, 319 U.S. 624 (1943).
5. Christian Tomuschat, International Covenant on Civil And Political Rights: Introductory Note, United Nations (Oct 2008)
6. United Nations Human Rights Council and the Guiding Principles on Business and Human Rights
7. James M. Rice, The Private Nondelegation Doctrine, 105 Calif. L. Rev. 539 (2017).
8. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Carter v. Carter Coal Co. 298 U.S. 238 (1936)
9. United Nations Internet Governance Forum, Platform regulations: how platforms are regulated and how they regulate us, UN IGF Dynamic Coalition on Platform Responsibility (December 2017).
10. Boyle, James. “Introduction: A Nondelegation Doctrine for the Digital Age?” Duke Law Journal, vol. 50, no. 1, Duke University School of Law (2000)
11. Congressional Research Service, Privatization and the Constitution: Selected Legal Issues, No. R44965 (September 25, 2017)
12. eBay Domestic Holdings, Inc. v. Newmark, Delaware Court of Chancery, 16 A.3d 1 (Del. Ch. 2010).
13. Dep’t of Transp. v. Ass’n of Am. R.Rs., 135 S. Ct. 1225, 1234 (2015) (Alito, J., concurring)
14. Derek E. Bambauer, Orwell’s Armchair, University of Chicago Law Review Volume 79 Summer 2012 Number 3 (2012).
15. Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863); Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
16. United Nations Internet Governance Forum, Platform regulations: how platforms are regulated and how they regulate us, UN IGF Dynamic Coalition on Platform Responsibility (December 2017); Universal Declaration of Human Rights, Article 10
17. James Madison, The Federalist No. 62, at 379
18. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937).
19. United States v. Pink, 315 U.S. 203 (1942); The Logan Act, 1 Stat. 613, 18 U.S.C. § 953 (1799)
20. QZ, https://qz.com/1250884/you-cant-use-the-taiwan-flag-emoji-on-a-chinese-iphone/; Ars Technica, https://arstechnica.com/information-technology/2018/07/iphone-crashing-bug-likely-caused-by-code-added-to-appease-chinese-govt/; ZDNet, https://www.zdnet.com/article/citizen-lab-finds-apples-china-censorship-process-bleeds-into-hong-kong-and-taiwan/; Engadget, https://www.engadget.com/2018-08-31-apples-pride-watch-face-blocked-russia-lgtbq.html
21. GreatFire, AppleCensorship’s: Censored on the App Store (2021).
22. GreatFire, AppleCensorship’s: Censored on the App Store (2021).