Guest Post: Impeachment, Freedom of Speech, and the Failure to Regulate Tech Corporations

I am really pleased to share this very topical post by Dr Michael Kearney, a fellow graduate of the Irish Centre for Human Rights at NUI Galway and currently a senior legal researcher with Al-Haq in Ramallah, Palestine.

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As US President Donald Trump is facing impeachment on charges of incitement, and is blocked from accessing his social media accounts, the question of regulation of social media tech firms, as well as the role they are playing in international law making, might finally focus attention on corporate power and whether accountability for such power is feasible.

An Ever Changing Marketplace of Ideas

Human rights law textbooks in the 1990s would have presented the US approach to freedom of speech as one where all expression, infamously in cases concerning the Ku Klux Klan in Brandenburg v. Ohio (1969), and Nazis in National Socialist Party of America v. Village of Skokie (1977), was constitutionally protected. This jurisprudence, contemplating the prohibition only of a limited notion of incitement to immediate violence, would have been discussed alongside a reference to the famous phrase from Schenck v. United States (1919) which had cited as an example of speech not constitutionally protected ‘falsely shouting fire in a theatre and causing a panic’.

Today, after a presidency characterised by bombastic, racist, and surreal speech through social media, and the amplification and propagation of conspiracy theory, Trump faces the somewhat incredible prospect of being impeached on the basis of having incited insurrection in a public speech delivered to his supporters at an old fashioned street rally.

It is easy to forget, or perhaps difficult now to grasp, that the likes of Youtube, Google, and Facebook, as platforms and as corporations, have only existed since the popularisation of the technology that prompted Web 2.0, really only from around 2004. At the time there was a definite sense that this new internet could facilitate a decentralised, and progressive alternative to the dominant media. A welcome and possibly emancipatory development against the backdrop of internationalised resistance to globalised capitalism, and to the state propaganda and lies that marked the 2003 invasion of Iraq.

Instead, the skill, agility, and power that the tech firms were able to so rapidly consolidate, by harvesting personal data and packaging it into a product for advertisers – notably for savvy and ruthless political advertisers – saw a small group of businesses rapidly wield enormous and concentrated financial, political, social, as well as legal, influence. In the wake of Citizens United v. Federal Election Commission (2010) which abolished speech related restrictions on corporations around elections, and the introduction of state and federal legislation penalising Boycott, Divestment, and Sanctions advocacy, as an element of the Palestine Exception to Free Speech, the base from which to reflect as to the protection of, and the meaning of, free speech, must today inevitably pivot less around questions of content per se, but around questions of regulatory power and democratic accountability.

Tech Firms as International Law Makers

Among the most useful analyses of recent years on the relationship between tech firms and human rights and international law is the August 2019 report of the UN’s special rapporteur on counter-terrorism, Fionnuala Ní Aoláin. The report recommends that ‘States should play close attention to the importation of ‘soft law’ produced in closed and non-transparent settings into hard law norm production’ at the UN Security Council. What is described in the report is a process by which international law-making has been seconded to certain state-centred initiatives ‘augmented by public-private partnerships, such as Tech Against Terrorism or institutions modelled after the Global Counterterrorism Forum, reflecting the increasingly crucial role of the private sector’.

Utilising the framework of the UN sponsored Global Counter-Terrorism Coordination Compact, coalitions of tech firms, think tanks, and academic institutes are displacing the established development and human rights NGOs from the UN system, and circumventing the UN Charter based human rights bodies to arrive direct within the Security Council. Given the power the tech firms wield, and the promise they hold out to politicians, as well as the immense violence and racism characteristic of their platforms, it is not surprising that they have been incorporated into the UN system, nor is it surprising that such access would be via the convenient entry point of the UN’s counter-terrorism framework.

Tech firms are participating in, and contributing to the development and making of international law, in a process low on transparency or participatory governance regarding the rule of law or protection of human rights. Tech Against Terrorism for example, ‘an initiative launched and supported by the United Nations Counter Terrorism Executive Directorate (UN CTED) working with the global tech industry to tackle terrorist use of the internet whilst respecting human rights’, works closely with the Global Internet Forum to Counter Terrorism, a body formed in 2017 by Facebook, Microsoft, Twitter, and YouTube, and which now includes businesses including Dropbox, Amazon, LinkedIn and WhatsApp.

Ní Aoláin observed that while the ‘individual and aggregated impact and influence remains underexplored’ the firms, within the various public-private partnerships operate ‘generally unrecorded’, in a counter-terrorism landscape freed from human rights oversight, and which ‘between 2001 and 2019 might be described as a rather disorganized and uncoordinated proliferation of new legal practices, principles, rules and institutions’.

Microsoft is a tech corporation keen to adapt its brand to align with the ‘human rights’ vernacular, and functions, of the UN, and to engage with international law making. In seeking to appear statelike, for example in its sponsorship of workshops held at Oxford, and calls for international law academics to endorse the Oxford Statement on the International Law Protections against Cyber Operations Targeting the Health-Care Sector, a notable gap in the international legal regime, Microsoft has also been seeking to develop a Digital Geneva Convention. President Brad Smith proposes that ‘the global tech sector’, inspired by the role of the ICRC, should take on the mantle of a ‘neutral Digital Switzerland’, and has called on ‘the world’s governments to come together, affirm international cybersecurity norms that have emerged in recent years, adopt new and binding rules and get to work implementing them.’

Confrontation or Appeasement?

Schenck, where Oliver Wendell Holmes made his famous reference to ‘falsely shouting fire in a theatre and causing a panic’ was a case concerning the prosecution of socialists for anti-conscription advocacy, similar to the prosecution of anarchists in cases such as Abrams v. United States (1919). A century later, the form and content of propaganda, or hate speech, or incitement, of anti-war and anti-capitalist agitation, of censorship, or of human rights advocacy, has not dramatically changed. Many of the contested issues remain very recognisable.

What has changed significantly is the impact of the social media and tech firms. Where developments in mass media technology, through the press, radio, or television, were amenable to regulation and control by the state, there has been little indication that states are willing or able to bring the tech firms within the ambit of their regulatory powers.

Reports that European governments expressed concern at the power of Twitter et al to unilaterally deny Trump access to his account, says very little as to whether they approve or not of Trump’s policies, but rather expresses fear that this rupture between the tech firms and the President of the United States presents a precedent that will next be applied against their interests. They have after all, no right to a twitter account or to a Facebook page, and no control over how the algorithms promote or hide their messaging. The need to regulate the power of the tech firms should be plain, but how the relationship between these corporations and states is to play out over the coming years remains, quite frankly, unpredictable. With the tech firms embedding themselves across all aspects of international society, including international law making, what is clear is that the reach of the theatre, the scope of the panic, and the threat of the fire has spiralled into something which we might not yet comprehend.

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