A recently decided Supreme Court case has triggered a debate about how much (or little) governments can regulate the use of online spaces. Specifically, in Packingham v. North Carolina, a case about a state prohibitions on social media use by sex offenders, the court has weighed in with an opinion that would seem to suggest that social media sites and services are no different than streets or parks where the First Amendment is concerned. While I tentatively agree with the majority that the government should not issue sweeping restrictions on internet access based on an individual’s criminal record, justifying this position by portraying internet sites and services as public space is misleading and, in my opinion, dangerously naïve. Writing as if he had just read the collected essays of John Perry Barlow, Justice Anthony Kennedy writes in the majority opinion: “in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace…” Kennedy correctly asserts that ‘cyberspace’ plays an increasingly important role in people’s lives, but he overlooks how the spaces and places provided by the internet are fundamentally different from those that can more accurately be described as public spaces, such as streets and parks.
On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose…In short, social media users employ these websites to engage in a wide array of protected First Amendment activity…(emphasis added.)
Like many observers who have written paeans to the free-wheeling uses and democratizing potential of the internet, the majority opinion in Packingham demonstrates an ill-informed exuberance about the freedoms enjoyed by users of social media platforms. Even Justice Samuel Alito in his concurrence with the majority criticizes what he calls the court’s “loose rhetoric,” stating, “there are important differences between cyberspace and the physical world…” Yet Alito only criticizes the breadth of Kennedy’s claims while similarly failing to recognize the myriad ways our civil rights cannot be asserted on the internet. The resulting opinion promotes a popular but inaccurate narrative about the beneficence and neutrality of the internet in general, and social media platforms in particular.
Let’s be abundantly clear: social media sites and services are not public spaces and those who use them are not free to use them as they please. Social media platforms are wholly owned and tightly controlled by commercial entities who derive profit from how they are used. While, as is argued in Packingham, governments may be limited as to the extent they can tailor regulations over the access or use of an internet resource, social media users are already subject to the potentially sweeping choices made by site operators. Through a combination of architecture (code) and policies (terms of service), social media users are guided and constrained in what they can do or say. Twitter, Facebook, and other platforms routinely block users and delete content that would most likely be considered protected speech if it took place in a public venue. So, while we can probably agree that social media platforms have become central to the social lives of many millions of people, this means only that these services are popular. It does not make them public.
Justice Kennedy attempted to link the free speech rights that have been upheld in cases concerning other venues, such as airports, with the rights that should be available on the internet. While I do not disagree that the full extent of our constitutional protections should be available in online venues, the fact of the generally unregulated status of the internet and the commercial ownership of most of its infrastructure means that cyberspace bears very little resemblance to ‘realspace.’ Airports, for example, are public institutions operated by government agencies. A social media site—almost the entire internet now—is more like a shopping mall. In much the same way that social media platforms reproduce features of life in public places like city streets, shopping malls only mimic the interactive spaces they have come to supplant. A mall is neither street nor park. Different rules—and laws—apply to malls. When the Mall of America in Minneapolis shut down a Black Lives Matter protest in December, the mall operators were able to assert their property rights over the expressive and assembly rights of the protestors. A municipality would have risked a civil rights lawsuit had they broken up a peaceful protest on a city sidewalk or in a public park.
Packingham is a case about constitutional rights that overlooks the increasing privatization of those rights. It is also part of a larger problem of misrepresenting cyberspace as a zone of freedom. This transformation in our relationships to rights, and our perceptions about those rights, is aided by the invisibility of power online. Facebook, Twitter, etc., by providing expressive spaces in which their users supply the visible content, do not appear to us much as actors in this drama. We are led to believe that they simply provide appealing services that we get to use so long as we follow some seemingly benign ground rules. We fail to recognize that those rules are not designed for the best interests of users, but for the goals of the platforms themselves and their advertisers. Facebook in particular has worked hard to encourage dramatic changes in human social behavior that have enabled them gain deep knowledge about their users and to monetize that knowledge.
Justice Kennedy’s opinion is especially irksome because, while it purports to preserve important rights as our lives migrate online, it overlooks the distressing trend of privatization of the very rights that the constitution promotes. Yes, we may engage in first amendment activities online without undue interference by government officials, but the ability to do so is not guaranteed by the government because the government is barely involved. Ever since the internet ceased being a project of the Department of Defense, most of it has been privately owned and the government has avoided regulating most of the activities that take place there. While it may be true that an unregulated internet is a good thing, a side effect of this approach has been the growth of enormously powerful online businesses based on manipulating and spying on users and profiting from the resulting data. Every single communication and transaction that takes place on the internet passes through infrastructure belonging to dozens, even hundreds of private companies; any of whom may be asserting their combinations of architectural and policy restrictions on how that infrastructure is used. Where it suits a company to operate with total neutrality and openness, they do so. When it does not, they act in whatever manner suits the bottom line. Facebook, by example, is frequently lauded for its capacity to support political organizing as well as other modes of first amendment activity. But if Facebook decided tomorrow to block access to an NAACP page or to prevent the use of its messaging system to organize a legal street protest, there is nothing but the potential for consumer backlash to prevent them from doing so. If Google decided to choose the next U.S. president by subtly shaping “personalized” search results, there are no law on the books to prevent it. Packingham says nothing about this kind of power over free expression, which dwarfs that of the government when it comes to online activity. Until the government and the courts begin to address the privatization of our rights online, court opinions celebrating our online freedoms will continue to ring hollow while amplifying perceptions of government irrelevance in the internet age.
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