Is it the Sunset for Unregulated Internet Speech?

By Ernest Worthman, AWT Executive Editor and IEEE Senior Member

May 2, 2019

Almost daily, Facebook is dinged for, yet, another transgression against the personal and private data worlds of its users. It has gotten to the point where they do not even offer an apology or move to correct the infractions.

It makes a sad statement when Internet players like Facebook (with Google, Yahoo, Amazon, Twitter, and others, not far behind) can pretty much do as they like with an individual’s data – and, with little more than verbal admonishment. This unbridled capability to run amok in what is being called the “wild west” Internet landscape has been much discussed, but little acted upon. Finally, however, it appears this era is about to come to an end.

The United States is, after much debate, finally considering enacting some kind of legislation to try to wrestle down these behemoths of the Internet landscape. Nevertheless, progress is slow.

The humorous part is that the cries for regulation are not coming from users who, blissfully, continue to ride off into this Internet sunset, oblivious to how this is affecting them, and those connected to them.

Many users are, simply, unaware of the dangers of the digital economy and the manipulation of their data. Others do not seem to care. The fact that so many devices are, still, inherently insecure just compounds this ecosystem. Therefore, it appears that this is one of those cases where the user must be protected from themselves.

One of the peripheral issues here is how the lack of concern over privacy affects tangential users. By that, I mean the potential wormholes that careless or ignorant users create. The issue is that these wormholes have the potential to allow data, from those who may be privacy conscious, to be visible to these players via other users.

Social media companies, such as Facebook, have slipped between the regulatory red tape for years, fitting nicely into the grey area between “platform” and “publisher.” However, the argument that they have been using about being a publisher is not holding up, since such players do not “create” content. Therefore, they are being seen as “regulate-able.” Even Mark Zuckerberg and Tim Cook think regulation is a good, and necessary, thing.

While the U.S. Government is haggling over what needs to be done, other countries have just about had it. As scandal after scandal is uncovered, revealing the underlying business model of these entities, it is beginning to force slumbering politicians into action.

For one, the UK’s Department of Digital Culture, Media and Sport, and the Home Office have jointly launched a new public consultation on proposals with an eye on introducing a new regulatory body to govern the internet economy. One of its primary charges is to ensure online safety and tackle illegal and harmful activity.

It also has teeth. If implemented, Britain can impose financial penalties similar to those under the EU’s online data privacy law, which permits fines of up to four percent of a company’s annual worldwide revenue. In extreme cases, the government can also fine individual company principals and prevent companies from operating there (although as rich as these entities are, that is a bit of a joke unless the fines, or loss of revenue, is substantial).

Other countries are hopping on the bandwagon. Australia just made it a crime for social media platforms to be lax in not removing “abhorrent violent material” immediately upon discovery. Failure to do so will result in fines of up to $10.5 million Australian dollars, or 10 percent of the platform’s annual revenue, whichever is larger. An additional provision even authorizes up to a three-year prison sentence for its principals. New Zealand’s Privacy Commissioner wants his country to do the same.

The United States, however, seems to be stuck around the First Amendment on this. However, some say that the free speech argument, for being a medium of despicable content (child porn, drug and sex trafficking, illegal gun sales, etc.), is weak because simply acting as a transfer platform for information does not come under the rules of free speech. The reasoning being, as I mentioned earlier, is that such platforms do not create the “speech,” so they are not protected.

Even if, by some odd chance, these platforms are protected by the first amendment, the free speech concept can be upheld while nefarious activities are regulated. One can look to the German Democratic Party’s (GDR) post-WWII constitution as an example. It has articles similar to our amendment that guarantees free speech.

Their constitution states: “Every person shall have the right, freely, to express, and disseminate, his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.”

However, there are exceptions. One being: “Hate speech or ‘incitement of popular hatred’ (Volksverhetzung) may be punishable if against segments of the population and in a manner that is capable of disturbing the public peace (Section 130 Agitation of the People), including racist agitation and antisemitism.” Such exceptions can be extended to dark web activities, some argue, without impinging upon free speech rights.

The question becomes one of what is reasonable. Do we really want our digital platforms to act as an agent that, freely, allows illegal and immoral activities to flourish?

It can be argued that there are laws in place to address such nefarious activities. Of course, that is true. However, such laws apply to the acts and activities, not to the transfer of data pertaining to them. That is the point needing to be addressed.

Some countries are beginning to see that as reasonable. We should, as well.