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Law in the Internet Society
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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.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. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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