Whenever something really bad happens, we tend to rush to do something quick and fast which makes us feel better, but throws out important principles and thus has severe negative longterm consequences. The Patriot Act post 9/11 comes to mind. We just had a failed coup, the risk of which one could see coming from a mile away (actually going as far back as Trump’s election). But now that it has taken place, however weirdly farcical, everyone seems to finally wake up and so urgent action is required. Banning Parler from the app stores and cloud service providers feels good. And legal. Companies just choosing not to do business with someone who helped facilitate a coup, clearly a Terms of Service violation. How could this possibly be a bad thing?
The starting point for thinking about this should be the recognition that one of the biggest accomplishments of modern democracies is that the rule of law is administered by a government accountable to the people, with a balancing of powers between the executive, legislate and judicial branches. Unaccountable power, such as vigilantes, mobs, warlords, etc. are the hallmarks of poorly functioning countries and tend to suppress both freedom and economic activity. Who else might be unaccountable? Corporations that have lots of market power.
Over the last decades we have allowed many markets to become highly concentrated (see this excellent book by the economist Thomas Philippon). But nowhere is this effect stronger than online. Google, Apple, Amazon, Facebook, Twitter have massive global market power. They control to an absurd degree not only what we can and cannot do on our phones (which are effectively globally connected supercomputers) but also what we defacto wind up doing every day.
So now in this moment of crisis shouldn’t we celebrate that they are using their power to come to the rescue? Nevermind that this begs the question of what they were doing for the last four years, including in the immediate run up to January 6th. More importantly though, what standard are they applying? That of public opinion? Seems easy enough here given current public opinion. Then again, public opinion post 9/11 was broadly supportive of the Patriot Act. The judgment of their executives? Who are those accountable to? Why drop Parler but not also Reddit and Youtube? Or for that matter WhatsApp, which was used prominently in Rohingya genocide?
The answer that most people seem to give to these questions is some kind of “clear and present danger” argument. But if that’s really the case, why shouldn’t this be determined by a court of law? Present the evidence to a court and ask for an injunction. There may be some questions at to who has standing to seek such an injunction, but I believe a court of law to be the correct place for such a determination to be made.
Lots of people seem to think: what’s the harm? These are corporations enforcing their Terms of Service and they should have every right to do so. And yes, if there were lots of competitors (e.g. multiple app stores) then this line of reasoning would be perfectly fine because the Terms of Service don’t suddenly substitute for the law. We have to keep in mind that Terms of Service can and have been changed again and again and thus something that’s perfectly fine today may run afoul of a change tomorrow.
What is the worst the can happen? I believe there is a high likelihood that we are witnessing the visible emergence of the government-IT infrastructure complex. Government will be even less inclined to try and generate competition in this space. It is so much more convenient to have just a few large entities that an executive agency can influence behind the scenes rather than having to bother with the rule of law. We have already had this in the payments space for a while where instead of targeted interventions against actual abuses payment providers withdraw wholesale support for companies in certain categories (most prominently anything related to sexwork).
Where will this power be used next? One obvious place is crypto and blockchain technology, which threatens both the power of governments and the power of large corporations. A difficult set of topics that would require judicious law making and novel regulations. So much easier to just deal with it behind the scenes. Or take encryption. Why bother trying to come up with good regulation? Get Facebook to backdoor WhatsApp and then have everyone agree that Signal represents too much of a risk and needs to be banned. The big companies are inviting this approach. It will be good for them and good for executive power. But it will be bad for democracy.
Sure it is absolutely possible that none of this will happen. That Parler will be a one time emergency event. An exception and not a precedent. I would love nothing more than to be wrong with my concerns here, just as I would have loved to be wrong about Trump.
