by Rod D. Martin
May 8, 2021

I hear from many people concerned that Big Tech has fully and finally killed both privacy and the freedom of speech. And they have a legitimate, if terrifying, point. We’ve certainly seen what’s possible in China, with the Communist Party’s implementation of a universal Social Credit Score: take the wrong position online, or attend a house church, and when you get to the airport your tickets are canceled, or you’re fired from your job.

Technology has enabled more freedom than we’ve ever known. It’s also brought Big Brother to life. The question is, which of those possibilities will prevail in America?

Let’s look first at privacy, and then at censorship.

Frankly, we have to be honest with ourselves: any semblance of true privacy is dead. The technology destroying it is now so advanced and so ubiquitous that the only way to maintain what I’d call “virtual” privacy is through legal solutions that make leaking your information more costly than it’s worth.

HIPPA is a great example of how that can work: imperfect but pretty scary if you’re on the wrong end of it (note my use of relative terms, “imperfect” and “pretty scary”, like “Pretty Good Privacy”, the de facto standard for email encryption). The key is not absolute privacy (which never truly existed anyway) but rather a combination of heightened difficulty and deterrence against misuse.

An example of how such an approach can work: In 2008, a Democrat state legislator’s kid (twentysomething) hacked Sarah Palin’s email account and released a bunch of embarrassing emails. He was successfully prosecuted and went to prison. We haven’t had a lot of similar incidents since. Thinking backward to older technology, Florida and ten other states have “two-party consent” laws. What this means is that you can’t record a conversation with me without my approval. That’s not just on the phone either: that’s everywhere (though there are exceptions for places where you have no reasonable expectation of privacy, such as in a busy restaurant). I can’t even record someone without their consent in my own home or office without committing a felony. Most states haven’t adopted this approach (so watch out). But it’s a good example of how to make the risk of prosecution greater than most people will indulge, even where the incentive to record is very high (such as spouses going through a divorce).

It would be almost trivial to apply such an approach to other technologies. There are some glaring holes in our current privacy law, but we could plug them in no time if we were just paying attention. The current crisis is forcing people to start doing so, as is also true in the heretofore widely ignored issue of election security.

Censorship is similar. The solutions are simple enough, at least once you get past the idea that any solution will be perfect. There simply has to be attention to the need plus the will to take action.

There are three general approaches to a solution:

1. The libertarian solution (FYI: I think this is head-in-the-sand stuff): do nothing because these are private companies, and the market will produce competitors for the Big Tech companies over time anyway. The problem with this is the same as with segregated lunch counters and motels: at some point, the private sector can act in such uniform fashion against a group’s rights so as to be effectively governmental in nature (the classic example, of course, would be the administration of a company town). And in the case of Big Tech, since they are specifically enforcing the speech preferences of one party against everyone else, in reality, the Democrat Party is outsourcing what would historically have been government censorship to the companies that support them. One might even reasonably make the argument, given Section 230, that they are “acting under color of state law”.

But what about the market producing competition, you might ask? Well, the problem is that at least in the near term, many of these companies truly are natural monopolies, and have effectively monopolized the ability to speak to the American public. And even if they aren’t, it is non-trivial to put together the sort of capital and talent needed to compete with a trillion-dollar enterprise that is busily squelching you at every turn.

Just look what Apple, Google and Amazon did to Parler, which actually had the sort of giant backers and large user base most startups lack. I would suggest that that was clearly a conspiracy in restraint of trade; but whether it was or whether it wasn’t, Parler got wiped off the map, and how will it ever recover? When it finally gets its day in court ten years from now, who will pay its legal bills? Meanwhile, you will be squelched and Facebook will be worth trillions more than today.

Justice delayed truly can be justice denied.

But the larger point remains that if Americans have to lose every semblance of free speech – even sitting Presidents of the “wrong” party – for years on end while waiting for alternative platforms to arise (and there’s no guarantee they will, and there’s no guarantee they’ll be better, technologically or morally), free speech has meaningfully ceased. And while that approach might fit more neatly into a libertarian box, it is a catastrophe for the Republic.

2. The public accommodation / public utility solution (FYI: I think this would quickly come back to haunt us). As implied by my lunch counter analogy, one could view Facebook, Twitter, et al. as public accommodations, which even though private nevertheless are intended for use by the public at large and thus must not discriminate any more than the government itself may.

That’s a good way of looking at this problem. However, if you stop right there, the nature of these businesses, and of regulators, is such that in practice Big Tech would likely thus be regulated as public utilities: though technically private, they’d effectively be nationalized and subject to the whims of the bureaucrats assigned to regulate them. Those regulators are invariably Democrats, so in this approach we’d just have government enforcing the censorship against us directly, as opposed to the current outsourcing. Nothing would really change.

3. The public square solution (Marsh v. Alabama). As in the public accommodation example, treating the social media companies as public squares would apply First Amendment protections to their users that normally only apply to interactions between individuals and governments. However, I am distinguishing these two approaches with regard to implementation.

A public square approach would not seek to regulate so much as place boundaries, and potentially offer a choice. Companies which chose to qualify as a public square would not be permitted to regulate content on their sites unless it actually violated the law. Companies which chose to censor their users beyond those limits would be treated as publishers, and would thus be subjected to all the dangers of litigation from which Section 230 currently exempts them.

I would add that perhaps they need not be given a choice. Perhaps a standard should be established that automatically subjects them to this provision, such as being a certain kind of platform with greater than a certain number of users (we certainly wouldn’t want unpaid bloggers with a handful of readers regulated this way). I think more choice is usually better, but it isn’t always, and this is a worthy discussion.

But regardless, the public square idea is to create a non-censorious environment with the least regulation possible, because less regulation means less interpretation by government, less arbitrary action by censors, and thus a more fully level playing field for everyone regardless of who’s in office.

I actually think we can get a handle on both of these issues, privacy and censorship, admittedly with difficulty and a lot of ongoing maintenance (“eternal vigilance is the price of freedom”, after all). The current crisis is forcing people to think about these issues, and there are clearly things that can be done to improve, or at least alter, the situation. We will need to win a future election or two to get to something better. But we already knew that much.

Finally, I would add that Big Tech is committing so many additional antitrust violations – primarily in how they handle advertising – that they are a target rich environment for more draconian action. And indeed, as of the end of last year, 48 state attorneys general plus the DOJ are suing Facebook alone for “predatory” conduct in exactly this area. So Big Tech may have bigger problems than anything I’m suggesting. Indeed, what I’m suggesting would make them (but also all of us) much healthier and wealthier. It’s a shame they can’t see that just now.

So I’m actually pretty hopeful for positive change.

But for now, the crisis of privacy and censorship remains a huge, indeed existential, threat to liberty. We must take it very seriously.

— Solving the Crisis of Big Tech, Privacy, and Censorship originally appeared as a Facebook post by Rod D. Martin.