In the debate over freedom versus control of the global network, China was largely correct, and the U.S. was wrong.
Covid-19 has emboldened American tech platforms to emerge from their defensive crouch. Before the pandemic, they were targets of public outrage over life under their dominion. Today, the platforms are proudly collaborating with one another, and following government guidance, to censor harmful information related to the coronavirus. And they are using their prodigious data-collection capacities, in coordination with federal and state governments, to improve contact tracing, quarantine enforcement, and other health measures. As Facebook’s Mark Zuckerberg recently boasted, “The world has faced pandemics before, but this time we have a new superpower: the ability to gather and share data for good.”
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As surprising as it may sound, digital surveillance and speech control in the United States already show many similarities to what one finds in authoritarian states such as China. Constitutional and cultural differences mean that the private sector, rather than the federal and state governments, currently takes the lead in these practices, which further values and address threats different from those in China. But the trend toward greater surveillance and speech control here, and toward the growing involvement of government, is undeniable and likely inexorable.
In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.
Beginning in the 1990s, the U.S. government and powerful young tech firms began promoting nonregulation and American-style freedom of speech as essential features of the internet. This approach assumed that authoritarian states would crumble in the face of digital networks that seemed to have American constitutional values built into them. The internet was a vehicle for spreading U.S. civil and political values; more speech would mean better speech platforms, which in turn would lead to democratic revolutions around the world.
China quickly became worried about unregulated digital speech—both as a threat to the Communist Party’s control and to the domestic social order more generally. It began building ever more powerful mechanisms of surveillance and control to meet these threats. Other authoritarian nations would follow China’s lead. In 2009, China, Russia, and other members of the Shanghai Cooperation Organisation announced their “agreement on cooperation in the field of international information security.” The agreement presciently warned of a coming “information war,” in which internet platforms would be weaponized in ways that would threaten nations’ “social and political systems.”
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During the George W. Bush and Obama administrations, the United States helped secure digital freedoms for people living in authoritarian states. It gave them resources to support encryption and filter-evasion products that were designed to assist individuals in “circumventing politically motivated censorship,” as then–Secretary of State Hillary Clinton put it in 2010. And it openly assisted Twitter and other U.S. tech platforms that seemed to be fueling the Arab Spring.
Two events were wake-up calls. The first was Edward Snowden’s revelations in 2013 about the astonishing extent of secret U.S. government monitoring of digital networks at home and abroad. The U.S. government’s domestic surveillance is legally constrained, especially compared with what authoritarian states do. But this is much less true of private actors. Snowden’s documents gave us a glimpse of the scale of surveillance of our lives by U.S. tech platforms, and made plain how the government accessed privately collected data to serve its national-security needs.
The second wake-up call was Russia’s interference in the 2016 election. As Barack Obama noted, the most consequential misinformation campaign in modern history was “not particularly sophisticated—this was not some elaborate, complicated espionage scheme.” Russia used a simple phishing attack and a blunt and relatively limited social-media strategy to disrupt the legitimacy of the 2016 election and wreak still-ongoing havoc on the American political system. The episode showed how easily a foreign adversary could exploit the United States’ deep reliance on relatively unregulated digital networks. It also highlighted how legal limitations grounded in the First Amendment (freedom of speech and press) and the Fourth Amendment (privacy) make it hard for the U.S. government to identify, prevent, and respond to malicious cyber operations from abroad.
These constitutional limits help explain why, since the Russian electoral interference, digital platforms have taken the lead in combatting all manner of unwanted speech on their networks—and, if anything, have increased their surveillance of our lives. But the government has been in the shadows of these developments, nudging them along and exploiting them when it can.
Ten years ago, speech on the American Internet was a free-for-all. There was relatively little monitoring and censorship—public or private—of what people posted, said, or did on Facebook, YouTube, and other sites. In part, this was due to the legal immunity that platforms enjoyed under Section 230 of the Communications Decency Act. And in part it was because the socially disruptive effects of digital networks—various forms of weaponized speech and misinformation—had not yet emerged. As the networks became filled with bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content, private platforms faced growing pressure from governments and users to fix the problems.
The platforms are also cooperating with one another and with international organizations, and sometimes law enforcement, on other censorship practices. This collaboration began with a technology that allows child pornography to be assigned a digital fingerprint and placed in centralized databases that the platforms draw on to suppress the material. A similar mechanism has been deployed against terrorist speech—a more controversial practice, since the label terrorist often involves inescapably political judgments. Sharing and coordination across platforms are also moving forward on content related to electoral interference and are being discussed for the manipulated videos known as deepfakes. The danger with “content cartels,” as the writer Evelyn Douek dubs these collaborations, is that they diminish accountability for censorship decisions and make invariable mistakes more pervasive and harder to fix.
And of course, mistakes are inevitable. Much of the content that the platforms censor—for example, child pornography and content that violates intellectual-property rights—is relatively easy to identify and uncontroversial to remove. But Facebook, for example, also takes down hate speech, terrorist propaganda, “cruel and insensitive” speech, and bullying speech, which are harder to identify objectively and more controversial to regulate or remove. Facebook publishes data on its enforcement of its rules. They show that the firm makes “mistakes”—defined by its own flexible criteria—in about 15 percent of the appealed cases involving supposed bullying and about 10 percent of the appealed hate-speech cases.
But the basic approach to identifying and redressing speech judged to be misinformation or to present an imminent risk of physical harm “hasn’t changed,” according to Monika Bickert, Facebook’s head of global policy management. As in other contexts, Facebook relies on fact-checking organizations and “authorities” (from the World Health Organization to the governments of U.S. states) to ascertain which content to downgrade or remove.
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What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated “normal” to return to. We live—and for several years, we have been living—in a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.
Over the past decade, network surveillance has grown in roughly the same proportion as speech control. Indeed, on many platforms, ubiquitous surveillance is a prerequisite to speech control.
The public has been told over and over that the hundreds of computers we interact with daily—smartphones, laptops, desktops, automobiles, cameras, audio recorders, payment mechanisms, and more—collect, emit, and analyze data about us that are, in turn, packaged and exploited in various ways to influence and control our lives. We have also learned a lot—but surely not the whole picture—about the extent to which governments exploit this gargantuan pool of data.
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In other cases, federal, state, and local governments openly work in conjunction with the private sector to expand their digital surveillance. One of the most popular doorbell cameras, Ring, which is owned by Amazon, has forged video-sharing partnerships with more than 400 law-enforcement agencies in the United States. Ring actively courted law-enforcement agencies by offering discounted cameras to local police departments, which offered them to residents. The departments would then use social media to encourage citizens to download Ring’s neighborhood application, where neighbors post videos and discuss ostensibly suspicious activity spotted on their cameras. (A Ring spokeswoman said the company no longer offers free or discounted cameras to law enforcement.)*
Meanwhile, the company Clearview AI provides law-enforcement agents with the ability to scan an image of a face across a database of billions of faces, scraped from popular apps and websites such as Facebook and YouTube. More than 600 law-enforcement agencies are now using Clearview’s database.
These developments are often greeted with blockbuster news reports and indignant commentary. And yet Americans keep buying surveillance machines and giving their data away. Smart speakers such as the Amazon Echo and Google Home are in about a third of U.S. households. In 2019, American consumers bought almost 80 million new smartphones that can choose among millions of apps that collect, use, and distribute all manner of personal data.. Amazon does not release sales numbers for Ring, but one firm estimated that it sold almost 400,000 Ring security devices in December alone.
America’s private surveillance system goes far beyond apps, cameras, and microphones. Behind the scenes, and unbeknownst to most Americans, data brokers have developed algorithmic scores for each one of us—scores that rate us on reliability, propensity to repay loans, and likelihood to commit a crime. Uber bans passengers with low ratings from drivers. Some bars and restaurants now run background checks on their patrons to see whether they’re likely to pay their tab or cause trouble. Facebook has patented a mechanism for determining a person’s creditworthiness by evaluating their social network.
Apple and google have told critics that their partnership will end once the pandemic subsides. Facebook has said that its aggressive censorship practices will cease when the crisis does. But when COVID-19 is behind us, we will still live in a world where private firms vacuum up huge amounts of personal data and collaborate with government officials who want access to that data. We will continue to opt in to private digital surveillance because of the benefits and conveniences that result. Firms and governments will continue to use the masses of collected data for various private and social ends.
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The harms from digital speech will also continue to grow, as will speech controls on these networks. And invariably, government involvement will grow. At the moment, the private sector is making most of the important decisions, though often under government pressure. But as Zuckerberg has pleaded, the firms may not be able to regulate speech legitimately without heavier government guidance and involvement. It is also unclear whether, for example, the companies can adequately contain foreign misinformation and prevent digital tampering with voting mechanisms without more government surveillance.
The First and Fourth Amendments as currently interpreted, and the American aversion to excessive government-private-sector collaboration, have stood as barriers to greater government involvement. Americans’ understanding of these laws, and the cultural norms they spawned, will be tested as the social costs of a relatively open internet multiply.
COVID-19 is a window into these future struggles. At the moment, activists are pressuring Google and Apple to build greater privacy safeguards into their contact-tracing program. Yet the legal commentator Stewart Baker has argued that the companies are being too protective—that existing privacy accommodations will produce “a design that raises far too many barriers to effectively tracking infections.” Even some ordinarily privacy-loving European governments seem to agree with the need to ease restrictions for the sake of public health, but the extent to which the platforms will accommodate these concerns remains unclear.
