Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation

Paper by Jack Balkin: “We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.

The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.

The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are “information fiduciaries” toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in “algorithmic nuisance”: they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.

The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.

In the pluralist model, territorial governments continue to regulate the speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is “new school” speech regulation….(More)”.