Privacy, Free Speech and Technology

I am at work on the book! Here is an introduction to the second chapter, mainly on privacy, but begun with an discussion of how free speech and privacy increasingly intersect as a result of business and user practices on the Internet. The law in this area has yet to catch up, however, which is the thesis of the chapter. Here I present the first few paragraphs. What do you think?

As is well known, free speech was a key explicit issue in U.S. law right from the start. Privacy was not. Wearing my historian’s hat, as I have argued elsewhere, founders did not explicitly identify privacy as a constitutional value not because the culture had no sense of it – I would argue that it is as old as the human civilizations – but because it was so intimately embedded in the culture as a set of norms that it did not require codification. Encroachment on cultural norms prompted prescient scholars such as Brandeis to give it legal definition. As law, privacy emerged increasingly in both civil and criminal contexts throughout the twentieth century. As we move into the twenty-first, this area is of ever-increasing importance.  It is no coincidence that in all areas technology has been the driving force. From photography through telephony, birth control and abortion, technology is the persistent dynamic. The Internet has exponentially expanded and accelerated that development. 

Before diving into a deeper discussion of how the Internet – a combination of both market and technological aspects – has profoundly affected the social and legal landscape of privacy, it is worth explaining Constitutional application to it. To state a complex jurisprudence most simply: the constitution does not apply to Google, Facebook, or Amazon. These sites, and hundred of thousands of other like them, are private. If compared to physical space, it is as if a user who visits these sites has “stepped” on private property. Therefore the user must abide by the rules that the company sets.  If I were to drive up to General Motors Corporation headquarters in Detroit, Michigan, for example, I would be directed to a showroom someplace else. There would be no expectation that I could willy-nilly enter the grounds or walk around either its business or operational offices.  The same is true for the Internet.  If I go to the main Google search page, it is as if I were at the showroom. I am not invited into Google headquarters to be a part of its backline operations or its corporate boardroom where business plans and decisions are made. In short, I have to abide by these rules in physical space, just as with a click through license I abide by the rules that Google or Facebook have set, even if that means that they can and will limit my speech and breach my privacy. 

Let’s first examine how the private corporate entities of these sites affect free speech. For more users, this impingement may not be apparent to users.  Facebook’s Terms of Service, for example, reserves the right to delete or block content, and it has done so in health and safety circumstances or when the expression becomes too vulgar by the standards that is founder’s have set. Given U.S. law on obscenity, Facebook’s standards are far more restrictive than are allowed under the First Amendment. Likewise, Google – or any other online service – can set whatever rules it likes. Yet social norms and the First Amendment are in sufficient alignment that the distance between the site’s rules and what its users expect is not significant.  Still, it is important to remember that it is this cultural alignment, and not the law per se.  Their rules comport with “free speech” as most people in the U.S. understand it. As private entities, these sites can do as they like, keeping in mind, of course, that as a for-profit business, to become too restrictive or out of line with common cultural expectations would inevitably have a deleterious effect on the bottom line. Financial considerations, in line with social norms that the law helps to share keep these sites in alignment.