An Internet Bill of Rights for Americans
A Speech to The Heritage Foundation Legal Conference
June 6, 2018
We have arrived at a moment in American discourse when our constitutional speech rights are being overridden by a small number of commercial digital organizations who are reshaping the limits of speech in alarming ways. We need a better answer, and one such idea is a new Internet Bill of Rights to reestablish a core set of guarantees around how we communicate.
For over 200 years, we have been constitutionally guided by speech principles organized to guarantee maximum freedom for even odious ideas. This was neither callous nor happenstance; it was rooted in the belief that most people are fundamentally decent, and the knowledge that they will reject hatred and bigotry of their own volition. Those who came before us recognized that regulating speech is a slippery slope, and once started would lead us to a world we would not recognize. And now, that world is all too close.
Google, Facebook, and Twitter have responded to a variety of internal and external pressures around the idea of “protecting us” from odious ideas by putting their thumb on the scales of free speech. They have altered the natural order in which you would receive news you chose to see, and information you selected.
As one example, I work with publishers, public companies, and advocacies that are universally reporting massively falling organic audiences and engagement on Facebook. At the same time, Facebook has embarked on an unprecedented and Orwellian initiative to render their platform, and I am quoting cynically here, safer… by using a euphemistically named algorithm to play favorites with news reporting and business-related posts on their platform.
Let’s talk about this algorithm. When you use Facebook, you choose the publishers and businesses you want to see by following or liking them, much as you do with your friends. Your expectation is that every time they post, it will turn up in your feed in natural or chronological order. But they don’t, simple as that. Facebook has decided that they know better than you do what you should see, and so without telling you when, why or how they are doing it, some news and information you want is suppressed, and some you don’t care about is featured. This is not an on-off switch you can control. It has no settings you can manage. You cannot turn this algorithm off, nor can you know exactly how it is being applied. So you are relying on Facebook’s goodwill in deciding what news you get to see.
Similarly, Google and Twitter use algorithms to make their own decisions about what you see and when you see it.
I am not a lawyer, which is why I am going to be bold enough to sit in a room full of them and propose some legal remedies to these issues. And while we have been discussing Facebook alone for brevity, variations of these same problems exist with every Internet giant, from Google to Twitter. Here are three legal remedies to consider as we fight the excesses of the gilded era of geekdom:
1. Bring forth an Internet bill of rights, guided by fundamental fairness in neutral access to information, user control of all placement algorithms, and user control of all tracking and targeting through advertising. It’s called a Bill of Rights to harken back to the constitution, which has been entirely adequate to this challenge of protecting speech for nearly 250 years. Mark Zuckerberg is smart enough, but he is no Thomas Jefferson.
2. Many people are unaware that more than one out of every two ad dollars spent digitally go to Facebook and Google. That is because they have absolute control over who can place advertising on their gigantic content platforms. News flash: they only allow their own ad networks on their sites. Treating them like a public utility and forcing Google and Facebook to accept advertising through third party networks neutrally would reduce their ability to stand on the throats of business in America.
3. It’s time to end opaque publisher and payment processor blacklisting. Many ad networks have a blacklist of publishers banned from receiving ads and thus, revenue, as a matter of policy. And many payment processing organizations, notably PayPal, have a similar blacklist of organizations they will not process payment transactions for, which separates these organizations from their revenue. These two functions of business, advertising and transaction processing, are vital, and business and advocacies should not be denied without transparency, a legal rationale, and a fully sanctioned due process to remedy negligent or deliberate business interference. The ad networks and payment processors won’t do it alone; lets give them a hand.
The Digital Giants are today as much a choke point for business as they are for information. They stand in the center of much of American life. It is time to hold them accountable and insist that they do much better… or become much smaller.
Brian Glicklich is CEO of Digital Strategies, a Los Angeles based crisis and strategic communications consultancy.
