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Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation

65 Pages Posted: 20 Sep 2017 Last revised: 13 Oct 2017

Jack M. Balkin

Yale University - Law School

Date Written: September 9, 2017

Abstract

We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.

The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.

The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are "information fiduciaries" toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in "algorithmic nuisance": they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.

The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.

In the pluralist model, territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society.

The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action.

As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies.

The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the "law" in this case being the publicly stated norms and policies of the company. Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.

Keywords: First Amendment, freedom of speech, algorithms, algorithmic society, Big Data, information fiduciary, algorithmic nuisance, private governance, digital infrastructure

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation (September 9, 2017). UC Davis Law Review, (2018 Forthcoming); Yale Law School, Public Law Research Paper No. 615. Available at SSRN: https://ssrn.com/abstract=3038939

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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