Big Tech is Big Trouble

To read Part 1, 2 and 3 in this series, click here, here and here.

What is the difference between tyranny and totalitarianism?

Respected scholar and Hillsdale College President Larry P. Arnn clarifies that Greek philosopher Aristotle defined tyranny as the rule of one person or a small group in their own interests and according to their own will.

Totalitarianism is a modern concept that refers to the domination by those seeking not merely to know (through science) but to make (through technology). Today’s technological rulers seek to re-make our natural world and even human nature through control over our information and communication.

Arnn’s students study dystopian novels like George Orwell’s “1984,” Arthur Koestler’s “Darkness at Noon,” Aldous Huxley’s “Brave New World,” and C.S. Lewis’ “That Hideous Strength.” Unfortunately, the historical reality of the domination of individuals continues in our modern era via fascist, communist, and authoritarian regimes that continue to brutalize hundreds of millions of people with imprisonment and impoverishment, forced labor and torture, slavery and death, and continuing efforts to eliminate independent thought and human freedom.

For example, in China there are cameras nearly everywhere, recording misdeeds and punishing citizens according to their digital “social credit score” based on facial recognition and biometric data algorithms set to support the Chinese Communist Party’s (CCP) absolute rule. The CCP’s dictatorship also leads the world in environmental damage as the key player in the use of rare earth minerals, which are required for the massive industrialization of computer software, storage, and hardware.

The Big 5

In the United States, our voluntary actions and thoughts are now also increasingly recorded and anticipated not only by our government, but also by the new rulers of our information age, such as the “Big 5” technology companies (Amazon, Apple, Facebook, Google, and Microsoft).

The belief at the founding of the World Wide Web was that no one would own our data or personal websites except ourselves. But ethicists, consumer advocates, and defenders of our democracy now raise deep concerns over the dangerous power of Big Tech as social media companies collect, store, and commercialize our personal data, risking digital abuse and injustice.

Canadian social scientist Ronald J. Delbert has been among the most prolific of investigative critics of the problems and challenges arising from the internet, which relentlessly searches into our private lives. In his book, “Reset: Reclaiming the Internet for Civil Society,” Delbert asserts that human society has reached a “turning point,” and that “we risk irreversible losses of human freedom and privacy if we do not impose democratic controls on digital technologies and the companies and governments that deploy them.”

Cyber capitalism, combined with cyber surveillance by government and corporate actors, has achieved an awesome power to incite us and monitor us as consumers and as voters in ways we are just now beginning to understand.

The classic concerns around the internet include cyber bullying, doxing, consumer fraud, loss of privacy, mob shaming, vicious language, hacking and extortion, and foreign interference in domestic elections, among others. We now must add the quickly growing political bias and censorship being practiced by those in control of the modern marketplace of ideas.

Google, Facebook, Twitter, Amazon, and YouTube are the arbiters of what may or may not be searched or said on their massive platforms. Google manipulates the visibility of websites and the content it disfavors. These companies have banned politicians, medical doctors and scientific panels, opinion journalists, lawyers, comedians, parent groups, and advocates for a wide range of social causes and views. Twitter and Facebook frequently block content they don’t like, such as the New York Post’s revelations prior to the 2020 Presidential election that Hunter Biden, inter alia, was aggressively involved in leveraging for financial gain his father’s position as Vice President.

Social media companies now regularly ban or suspend accounts they deem controversial or that, they casually assert, promote “misinformation” or “hate speech.” YouTube has even restricted numerous Prager U videos discussing ethical issues such as the 10 Commandments, which led to a lawsuit won by the defendants, who argued that as private companies they have the right to censor content.

Those seeking to participate in an alternative to the current dominant social media companies have had a rough go as well. Parler, the social media company that bills itself as a free speech safe zone and competitor to Twitter, was kicked off Google Play and Apple’s ubiquitous app stores. Amazon Web Services, which controls much of the available public cloud infrastructure, removed Parler from its hosting service.

Millions of Americans have now lost their access and ability to follow organizations, commentators, and content they prefer. Accounts are locked capriciously, often with no explanation or appeal. The social media landscape has become another partisan and biased political war zone, with only one side having weapons. And free speech rights are at risk of further decline if the model of the United Kingdom, where citizens have been jailed for “grossly offensive” electronic communications even if the speaker is found not to have “intended” harm, is adopted.

A growing number of citizens now believe that Big Tech is harming our democracy, cherry-picking content to favor its partisan desires, and serving as judge, jury, and executioner in limiting the free expression of ideas. It is stifling not only free speech but also innovation as a dominant monopoly.

What can be done about the purposeful suppression of online speech by media companies that have seized control of our digital conversation? Put legally: Is this a violation of free speech by non-governmental actors? Might the use of antitrust laws help to combat censorship?

Defending Against Big Tech

Noted constitutional attorney Alan Dershowitz has argued that Big Tech companies are no longer mere platforms, but publishers who should be liable for their actions like any other media companies and disqualified from protection by the now infamous Section 230 of the 1996 Communications Decency Act, which provides legal protection to tech companies so that they are not liable for every post by millions of users.

Section 230 was meant to “clean up the internet” by empowering “carriers” to deny degrading and violent content without fear of liability for any posts they missed. And so, there is a role for content moderation to disallow the kind of obscenity, criminal activity, or terrorist advocacy and training that might cause irreparable harm to society. But as content moderation has now turned into viewpoint discrimination, the demand for the regulatory role of government is growing.

Here are six options for addressing the abuse of free speech by Big Tech companies.

a) Repeal or modify Section 230

Senator Josh Hawley (R-MO) (author of “The Tyranny of Big Tech”) has suggested this path. The tech exemption from liability as a mere neutral platform appears no longer to be valid. By choosing some content over others, Twitter, Facebook, and YouTube are now among the universe of publishers who should be subject to the same rules as other media companies. Enforcement might include large fines or breaking up companies through the precedent of antitrust laws.

Justice Louis Brandeis famously argued that big is often bad, leading to higher prices and less innovation. Today, tech isn’t driving up prices, but it is arguably harming democratic voices.

Judge Robert Bork’s antitrust precedent offers potential consumer welfare protection — is the product defective or immoral? One could argue that banning and de-platforming speakers one does not like is against the interest of consumers.

b) Company liability for viewpoint discrimination through jury trials

A plaintiff could argue that he or she was excluded from the town public square and harmed by being silenced. No one may be denied entry into a restaurant because of their skin color. Why shouldn’t a jury be able to determine the damages to one who was denied entry into a social media conversation? Preventing a citizen from joining a platform that is literally the modern town public square is a denial of equal access and violative of civil rights.

c) Enforce the Common Carrier obligation to allow various viewpoints on public issues

Scholar Richard Epstein has suggested the standard here would be to require a fair, reasonable, and non-discriminatory approach to speakers by carriers such as Facebook, Twitter, or YouTube. The Department of Justice and the Federal Communications Commission would likely be the relevant authorities to enforce equal justice under law to speak and assemble.

As well reported, Supreme Court Justice Clarence Thomas recently opined in the case Biden vs. Knight First Amendment Institute: “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” Further, “[i]f the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.”

d) State by State regulation

If some states are now sanctuaries for illegal immigrants, couldn’t other states become sanctuaries for those denied access to social media platforms?  States are already going their own way on a range of issues, from immigration laws to educational standards, and from gun control to the legalization of cannabis.  5 states have already enacted legislation to fight back against Big Tech censorship.

e) A Fairness Doctrine

This would require that private social media companies in control of the mass public square abide by basic non-discrimination and due process requirements. In the past, the telegraph, telephone, radio and TV airwaves, and cable networks were regulated to ensure they did not use their power to discriminate in favor of certain political viewpoints. If social media companies are now broadcasters, they could become subject to such revived oversight.

f) Competition

Without much government regulation, consumer choice will have to create the space for alternative voices in the social media landscape. Recall that in the Citizen’s United case, the Supreme Court allowed private companies to be considered private citizens entitled to free speech. Well then, let them compete under a libertarian model of free and open competition.

Not unlike in China, Silicon Valley’s Big Tech companies are collecting and manipulating data, favoring “authoritative” sources, and filtering internet users to assign “quality” scores to citizens based on their preferences and networks of friends. The American public is late to the game, but the good news is that most citizens across the political spectrum share deep unease at the commercial and political power of companies that are becoming far more ruthless and totalitarian than we ever suspected.

Larry Greenfield is a Fellow of The Claremont Institute for the Study of Statesmanship & Political Philosophy.

The Speech Project is an initiative of the Jewish Journal that brings together some of the most compelling voices from across the political spectrum to address the topic of free speech. In a cultural moment where civil liberties often seem to be under siege, we encourage freedom of expression, independent thinking, and personal choice. The articles, podcasts, books, and other resources you’ll find here all challenge the growing illiberalism of our time in their pursuit of balance and authenticity.