68 Pages Posted: 10 Jul 2018 Last revised: 12 Aug 2019
Date Written: June 29, 2018
U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, as well as increasing public demands for the companies to protect users from governments. The companies’ power raises serious questions about how to understand their role. Scholars have proposed varying conceptions, suggesting that the companies should be understood as public utilities, information fiduciaries, surveillance intermediaries, or speech governors. This Article takes up another possibility, one suggested by the companies themselves: that they are “Digital Switzerlands.”
The Digital Switzerlands concept encompasses two ideas: (1) that the companies are on par with, not subordinate to, the countries that try to regulate them, and (2) that they are, in some sense, neutral. This Article critically evaluates the plausibility of these claims and explores how the companies differ from other powerful private parties. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. government and foreign governments, but it also means that the companies do not always counter governments. Understanding the relationship between companies, users, and governments as triangular, not purely hierarchical, reveals how alliances among them affect the companies’ behavior toward governments. But the companies’ efforts to maintain a posture of neutrality also carry a risk of passivity that may allow governmental attacks on users to go unchallenged.
Turning to the normative, this Article proposes several considerations for assessing the desirability of having companies be Digital Switzerlands. Does the rise of the companies as competing power centers benefit individual users? Does the companies’ lack of democratic attributes render them illegitimate powers? If the companies claim the benefits of the sovereign analogy, should they also be held to the public-law values imposed on governments, and if so, how? And if there is value in the companies acting as Digital Switzerlands, how can this role be entrenched to prevent backsliding? This Article offers preliminary answers to these questions, while acknowledging that the answers may well evolve along with the companies’ behavior.
Keywords: technology, neutrality, international law, privacy, Google, Microsoft, Facebook, Twitter, privacy, security, cybersecurity, sovereignty
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