Privacy as a Right to the Freedom of Thought

-- By ConradNoronha - 16 Jan 2021

In the United States the right to privacy exists as a constitutional right which can be enforced against the government and a common-law right of torts which can be enforced against private individuals. The right to privacy has been thought to protect an individual’s right to secrecy—that is to be known only by the people of one's choosing—anonymity—that is to be unknown to others—and the right to autonomy—that is to control one’s identity. But privacy wasn’t always considered a constitutional or a common-law right.

In 1890, Louis Brandeis and Samuel Warren wrote a famous law review article arguing for the common-law right to privacy. They described privacy as “the right to be let alone.” They argued that this right does not originate from the principles of private property—even though it can sometimes resemble property rights—but instead arises from that of “an inviolate personality.” This right to privacy protects against undesired publicity. It gives to individuals the right to keep certain thoughts secret and to decide how to express other thoughts and to whom. This common law right to privacy is derived, in part, from the right to the expression of thought.

The American constitution does not explicitly contain the right to privacy. In Griswold v. Connecticut, 381 U.S. 479, 484 (1965), the Supreme Court propounded the idea that the specific guarantees in the Bill of Rights create penumbras of unenumerated rights. That is to say, that the rights mentioned in the Bill of Rights give rise to other rights which may not have been specified in the Constitution. The Court found that privacy was one such right. It held that this right to privacy is derived from the First-Amendment right to association and certain other rights. The right to association is considered to be part of the right to freedom of thought. Thus, the even the constitutional right of privacy is derived, in part, from a right protecting the freedom of thought.

The right to the freedom thought is a common fixture in most liberal constitutions and international instruments of human rights. The US constitution does specifically protect the freedom of thought. But the First Amendment freedoms—of religion, speech and press, and assembly and petition—are considered to be protections against encroachment on an individual’s freedom of thought. Some international instruments, like the Universal Declaration of Human Rights, specifically mention the freedom of thought which includes the right to change one’s religion or belief.

Freedom of thought, in these instruments, has a few core characteristics. First, the freedom of thought includes the freedom to influence others and to be influenced by others. Second, its primary objective is to create and protect conditions in which people can think freely. These conditions include the right to choose one’s religion, the right to freely express one’s thought, and the right to decide whom to associate with and thus whom to be influence by. This is because, barring mind control, people always have some degree of autonomy over their thoughts. Finally, freedom of thought protects against violations of these conditions by the government or quasi-governmental bodies. Because freedom of thought is premised on the assumption that the government is the only authority which can take away these conditions necessary for thought.

But the rise of social media has challenged some of the assumptions on the which the freedom of thought has been historically premised. For example, today social media companies exercise huge control over what speech can be published on their platforms and who can see it. Many have argued that this power is akin to sovereign powers of censorship exercised by states. By being able to ban certain groups on their platforms, these companies also exercise influence on people’s freedom to associate. Thus, in the digital age, the government is not the only authority which can curtail the conditions necessary for securing the freedom of thought.

More importantly, today’s digital companies can manipulate people’s thoughts directly in unsettling ways. Many internet companies operate in what is called the market for eyeballs or the market for human attention. Their business models are based on keep their users constantly engage by attempting to extract responses from users through stimuli. These companies compete for the increasingly scarce attention of their users. To be able to succeed many of these companies use user data to optimize content for their users, thereby keeping them engaged. This has given rise to the phenomenon of surveillance capitalism whereby companies constantly collect data from their users. They then use this data along with addictive design tools—like auto play for videos and dynamic news feeds which resemble casino slot machines—to grab their users’ attention. These companies use artificial-intelligence algorithms whose job it is to keep their users engaged on the platform. One way in which these algorithms keep people engaged is by invoking certain emotions like outrage which are not only addictive but also contagious. These companies also prey on their users’ insecurities like the fear of missing out. Through these tools, digital companies have the ability to influence people’s behavior for the benefit of their advertisers. The most notorious example of this was when a political consultancy firm named Cambridge Analytica obtained vast amounts of data from Facebook’s users and used that data to manipulate voters’ opinions with precision.

This reality of the digital world changes the way in which the freedom of thought needs to be protected. We now know that our thoughts can be manipulated directly, without our consent or volition. Ensuring external conditions like freedom of expression, association, and belief—as modern democracies have done so far—are insufficient to protect against direct manipulation of thought. But the freedom to influence one another is not only tolerated within our notion of the freedom of thought but is crucial to thought itself. It is thus hard to distinguish what messaging or format of messaging manipulates thought from that which merely influences thought. We can probably draw the line at messaging which uses an individual’s personal data to target an individual and influence her behavior. If individuals can genuinely decide who can collect what data from their online activities and how that data can be used in messaging aimed at them, they would’ve exercised control over their thoughts.

In the digital age, the right to privacy is important not just as an end in itself, but also as a means to protect thought. Because if we do not have the ability to use the internet and interact with our friends and family on it without being spied upon, our conscious and subconscious actions can be weaponized against us to manipulate our thoughts. Thus, we must view privacy as another right in the pantheon of rights aimed at protecting the freedom of thought.

This is a draft chock-full of ideas, too full to live within the confines of 1,000 words and the inevitable limitations of readers' energies. It needs more focus. Your task is to sort out what's most important to you. I think this is probably less about whether Alphabet or Tencent are "like" the British East India company than it is about whether provisions intended to restrain government in its relation to citizens should be enforceable ex propria vigore against non-governmental parties who are powerful and important.

Your present effort to turn state action requirements into non-state liability for constitutional torts would benefit from having something in addition to its own speculations to depend upon to cover the terrain between "I wish the Constitution were like this" and "Let's pretend I can get two thirds of both houses of Congress and three quarters of the State legislatures to agree with me about what the Constitution should be like." It seems more promising to inquire whether the Supreme Court might have erred in the Civil Rights Cases, or whether Section 1 of the Fourteenth Amendment might not be the only source of power to protect civil rights. Hence the cases, like Shelley v. Kraemer, NY Times v. Sullivan, and Pennzoil v. Texaco that raise questions about the state action doctrine, and Charles Black's Decision According to Law, all of which might be good places to look. I think you're entirely correct that this is an important element of dealing with constitutional problems in the network age: I'll spend two weeks on the subject next term, in Parts Nine and Fourteen of the other course.

A Case for An Internet Bill of Rights

-- By ConradNoronha - 21 Nov 2020

Many compare today’s internet giants with colonial trading companies of the 18th Century. Arguing that today’s tech giants enjoy the same level of monopolistic control over their sectors of the economy as colonial trading companies did and hold a similar share of the global economy. And like colonial trading companies, today’s tech giants are more powerful than many national governments and affect domestic politics across the world. But this comparison is over simplistic. Today’s tech giants are far more nefarious. They operate on a business model of surveillance capitalism which has immense repercussions on societies, human relationships, and human behavior. It has gained an unprecedented ability to change human behavior and societies in ways which would have been unfathomable even a decade ago. It has impacted elections, made societies more polarized, contributed to lynching and genocides, made itself an extension of the human body, changed the ways people fall in love, and exacerbated mental health issues. Tech giants thus exert an extraordinary amount of control over our basic rights, such as, our right to the freedom of thought, freedom of speech, freedom of association, right to privacy, right to anonymity, and to the right to life itself and the ability to pursue happiness.

Over the past few centuries, almost all democratic states and the international community at large have recognized many of these rights as being fundamental to the dignified existence and autonomy of human beings. Yet, today’s tech giants threaten the very existence of these rights. Unfortunately, these rights are protected by and guaranteed against the state. The only rights that people have against tech companies, however, are those which they agree to when the use their services and general civil rights like those contained in tort law.

Many aggrieved persons have tried to enforce their fundamental human rights against tech companies by arguing that these companies perform sovereign function and thus must have the same duties as a state. In the United States, for example, plaintiffs have tried, unsuccessfully, to enforce these constitutional rights against tech giants by asserting the state-actor doctrine. See, e.g., Forbes v . Facebook , Inc ., 2016 WL 676396, at *2 (E.D.N.Y. Feb. 18, 2016) (finding that Facebook is not a state actor for Section 1983 First Amendment claim); Green v . America Online (AOL) , 318 F.3d 465 , 472 (finding that AOL was not a state actor). According to this doctrine, in some cases the law will impose upon private parties the same duties which states owe their people. The relevant test, in the internet-giants context, for finding whether a private person was a state actor is the public-function test. See Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997). That is, to be a state actor, the private party must have carried out a function that was traditionally and exclusively reserved to the state. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1972).

This test has a very high threshold. Because “[w]hile many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the state.’” Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 158 (1978). Courts have used this reasoning to hold that hosting internet forums is hardly an activity exclusively reserved to the state. Prager Univ. v. Google LLC, 951 F.3d 991, 998 (9th Cir. 2020). Courts have reasoned that one does not preform public function merely by inviting the public on to one’s property. Because that would mean every retail and service establishment in the country would be a state actor. Id. The courts’ reasoning seems to be correct. Surveillance capitalism has never been something the state has engaged in. States indeed engage in mass surveillance but it is different from surveillance capitalism. States’ surveillance has not, at least until now, tried to change the behavior of the people it surveils for its own benefit. And even if states were to do it now, it would be by using surveillance capitalism as a tool to do so. Thus, even though surveillance capitalism is extremely powerful, its power and functions differ from those of states.

One possible way to hold internet giants responsible for violating basic human rights is to argue for a new test to determine whether a party is a state actor. The public-function test is not the only test under the state-actor doctrine. The Supreme Court has over the years found various private parties to be acting under the color of the law in a variety of different situations. And so, it may be possible to convince the courts that determining whether internet companies perform state actions requires a different test. But even if courts were to create a different test making it easier to hold internet companies as state actors, enforcing traditional fundamental rights—which were owe by states—against internet companies will not be easy. Take for example, Facebook’s algorithm which decides what posts you’ll see. Assuming one were to sue Facebook on the grounds that this algorithm—by forcing you to think in a particular way—violates your freedom of thought. The problem is that the traditional doctrines of freedom of thought were not developed to address this level of mind control packaged in an illusion of choice. And courts may probably be hesitant to broaden the existing understanding of freedom of thought fearing that this would have onerous repercussions on states against whom this originally applies.

Therefore, a potential solution could be to demand a new bill of rights for the 21st century and beyond. The Bill of Rights or the Magna Carta were documents of social contract where the governed agreed to accept the rule of their government in return for some basic rights. Similarly, the members of the internet—which include every person who has access to the internet and all entities which use the internet for business or otherwise—need to enter into a contract with each other, with internet distribution companies, and with the governments of the world. Under this contract, people may use the internet for profit, distribution companies may make money while providing internet connectivity, and governments may carry out certain sovereign functions on the internet and in return they will accept to not infringe on some of basic internet related human rights. It’s time to start discussion what an Internet Bill of Rights would look like.

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