Black Code: Inside the Battle for Cyberspace (14 page)

The companies behind all of this have become behemoths. In 2012, Facebook announced that it had over 1 billion subscribers, more than the entire Internet-using population in 2005. If it were a country, this would make it the third largest on earth, after China and India. Notwithstanding that its IPO failed to meet expectations, Facebook’s 2012 market capitalization was more than $60 billion. But Facebook is puny compared with some of its competitors: Apple’s quarterly profits in 2012 exceeded $11 billion, and its market capitalization was roughly $525 billion, more than Microsoft’s ($244 billion) and Google’s ($192 billion) combined.

The sheer size of these companies, combined with our dependence on them for all of our communications needs (and experiences), makes their decisions and policies enormously consequential. As MacKinnon argues in
Consent of the Networked
: “We have a problem: the political discourse in the U.S. and in many other democracies now depends increasingly on privately owned and operated digital intermediaries. Whether unpopular, controversial, and contested speech has the right to exist on these platforms is left up to unelected corporate executives, who are under no legal obligation to justify their decisions.”

As these companies grow and mature, we should expect them to exercise even more political influence both at home and abroad. Google’s lobbying and advocacy activities are a case in point of a company attempting to shape public policy in accordance with its commercial interests. In addition to issuing user warnings, Google has supported free-speech activists and research networks, and in
2011–2012 held two major “Internet at Liberty” conferences designed to raise awareness about threats to an open Internet and provide opportunities for free-speech activists to network and share ideas.
Its vigorous opposition to the SOPA and PROTECT IP (PIPA) bills – the Stop Online Piracy Act and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act – which together aim to curtail online copyright violations by granting the U.S. government new tools and powers to block user access to websites that sell copyright-infringing or counterfeit goods, were seen by many as instrumental to the bills’ defeat in the U.S. Congress.

Of course, having Google lobby on behalf of Internet openness is welcome, but there are justifiable concerns about the implications of such a wealthy and powerful company throwing its weight behind political causes in a selective and partisan manner. What if activists turn their attention to Google itself? If Google funds them, will they temper their criticism? What about Google’s resistance to privacy protections? Is its support for human rights online selectively applied to those areas that mesh with the company’s private interests? (A full disclosure is in order: like many other Internet research groups, the Citizen Lab has benefited from Google donations and, particularly, it is a host organization in the annual Google Policy Fellow Program, which funds a visiting researcher placed at the Citizen Lab each summer. This support is fully transparent and comes with no strings attached. Should that change, the Citizen Lab would not accept financial support from Google.)

We have come to depend on social media like Twitter and Facebook as the online equivalent of the public square, and we use these platforms not just for entertainment but also for political discourse. The companies themselves sometimes contribute. Beginning in 2009, for example, Facebook offered its users the opportunity to vote on its privacy policy, making its some billion users the largest
electorate in the world. But initiatives in this direction can also have their limits: In 2012 Facebook hinted that this voting structure was becoming burdensome, even unworkable. The company posted a statement saying it “found that the voting mechanism, which is triggered by a specific number of comments, actually resulted in a system that incentivized the quantity of comments over their quality. Therefore, we’re proposing to end the voting component of the process in favor of a system that leads to more meaningful feedback and engagement.” So much for direct corporate democracy.

Rarely do average citizens step back and examine the constraints and opportunities presented by these companies, the “
unprecedented synthesis of corporate and public spaces,” as Steve Coll put it in his 2012
New Yorker
essay, “Leaving Facebookistan.” As the Electronic Frontier Foundation’s Jillian York has suggested,
social media are less like town squares and more like shopping malls, bound by private regulations. Decisions taken by these companies for commercial reasons end up having enormous consequences for freedom of speech, association, and access to information. It is important to remind ourselves of the political economy of social media: If social media seems like “imagined communities,” in the language of Cornell University professor and author Benedict Anderson, the members are more like serfs than citizens, the users both consumers and product. Social media might thus best be described as
epiphenomenal
public spheres: while we may increasingly use these platforms for political purposes, politics is only a by-product of their intended purpose, and one that is highly constrained by terms of service that are outside the direct control of users.

•  •  •

The epiphenomenal nature
of political participation in social media is exacerbated when one factors territorial jurisdiction into
the equation. While almost all social media platforms have international customer bases, they are registered and headquartered in particular political jurisdictions, and are subject to the laws and regulations of those jurisdictions. As mentioned earlier, any data stored on Google servers, no matter their physical location, is subject to Patriot Act provisions on data sharing because Google is domiciled in the United States. (In 2012, in response to this reality, Norwegian legislators proposed regulations that would restrict the use of Google products and services by public officials.) More generally, when we use Gmail, Facebook, and other social media platforms, we may be subjecting personal data to laws and regulations over which we have no direct control.

While social media companies may wield growing political power, in turn they are increasingly subject to the assertion of state power in cyberspace, particularly around security concerns. There has been a sea change over the past decade in the way governments approach cyberspace security and governance. Whereas in the early days of the Internet, state policy was either absent or deliberately hands-off, today governments seek to shape and secure cyberspace as an urgent priority. Because much of what constitutes this realm is in private sector hands, in order to secure cyberspace governments must enlist or otherwise compel the private sector to police the data and networks they control within their territorial jurisdictions. These pressures have led to a gradual downloading of policing responsibilities to the private sector to monitor users, filter access to information, and control free speech.

How and under what authority the private sector polices cyberspace varies widely between political jurisdictions. Compliance with local laws often brings with it tough choices that, if taken, compromise larger principles, especially those related to human rights and privacy protections. Companies like Google, Microsoft, Research in Motion, Yahoo!, Twitter, Facebook, and many others
have all faced growing pressures as their operations have expanded worldwide, and
they have had to balance the desire to penetrate markets and the need to comply with local laws to do so against respect for freedom of speech and access to information. In September 2012, for example, a Brazilian court ordered the arrest of a Google executive when the company refused to remove an online video that criticized a mayoral candidate in the country’s upcoming municipal elections. The charge was that the video violated a local pre-election law which prohibits “offending the dignity or decorum of a candidate.” In a statement to the
Washington Post
, Google explained that it “is appealing the decision that ordered the removal of the YouTube video because, in being a platform, Google is not responsible for the content posted on its site.” Earlier that month, a different Brazilian judge fined Google for another video that criticized another candidate, and yet another Brazilian judge ordered the arrest of another Google official, a decision that ended up being overruled by a higher court. Needless to say, Google and Brazil have issues, and Brazil is not alone. In February 2010, the Italian government charged four Google executives over the posting of a video of a bullying incident involving an autistic boy in 2006 that a court ruled violated privacy laws. Three of the four executives were handed six-month suspended sentences.

And then consider the case of India, another democratic country that has pushed for an increasingly stringent set of requirements on Internet, social media, and mobile providers to police cyberspace through its 2011 Internet Intermediaries Guidelines. In 2012, the Indian government demanded that Yahoo!, Gmail (owned by Google), and other email providers store all emails accessed in India on Indian-based servers, even if the mail account was registered outside the country. After a prolonged and largely secret negotiation, RIM was compelled to do likewise for its popular BlackBerry service.

The same downloading of responsibilities can be seen in legislative proposals dealing with copyright enforcement. The Anti-Counterfeiting Trade Agreement (ACTA), signed by the United States, the European Union, Mexico, South Korea, Singapore, New Zealand, Australia, and Canada (and ratified by Japan) is hugely controversial owing to (among other reasons) its broad definition of criminal liability, which would hold the private sector legally responsible for what users do or share through their services. How such downloading of controls might be regressive is illustrated in the case of Twitter’s new “micro-censorship” policy, engineered to remove tweets only of Twitter users based in countries whose governments have asked Twitter to remove content. Although the company assuaged many critics by being transparent about the new policy and
stating that it archives content removal requests with the Chilling Effects Clearinghouse, a 2012 incident in France showed how such a policy can go terribly wrong in practice. Four accounts that parodied and impersonated the French president were terminated by Twitter, ostensibly because they violated Twitter’s terms of use policies around parodying. Although many citizens and observers disagreed with this assessment and were outraged, nothing was done to reverse the policy. When private companies are entrusted with the responsibilities and powers to police the Internet, questions of transparency, due process, and accountability inevitably arise.

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The cyber behemoths
of the social media world may be formidable, but they are hardly the first examples of large corporations wielding political influence. Going back in time, multinational corporations like England’s Hudson’s Bay Company and East India Company effectively ruled large parts of Canada and India in ways
that Google, Facebook, and others could never hope to match in scope and scale. Throughout the twentieth century, political economists lamented the rise and influence of multinational corporations who used their power and influence to manipulate the domestic political systems of the countries within which they operated. Similarly, resource extraction giants throw their political weight around in Washington, with a degree of sophistication that makes the Googles and Facebooks of the world look like amateurs. The relationship between the private sector, public authority, and citizen and consumer rights is constantly shifting, part of the ongoing process of industrialization, globalization and, with luck, increased democracy worldwide. Social media giants are but the latest manifestation of this dynamic.

But there is a difference. Social media giants may be just the latest incarnation of age-old corporate behemoths, but the markets they control are qualitatively different. As Rebecca MacKinnon says, “Not only do they create and sell products, they also provide and shape the digital spaces upon which citizens increasingly depend.” Those digital spaces include not only the spheres through which the public interacts but also increasingly a large amount of the space where we conduct our private lives – our close social relationships, even our innermost thoughts. As they grow in scope and scale, and take on a more important role in society, will citizens increasingly confuse social media companies with political institutions? Will political authorities continue to delegate core regulatory responsibilities to the private sector?

In November 2012
, Google released an update to its biannual “Transparency Report.” The reports cover six months of traffic to Google services from around the world (in this case, from January to June 2012), information essential for researchers attempting to verify blockages coming from certain countries that indicate tampering with Internet connectivity. For instance, this data helped illustrate the Internet blockades that occurred in Egypt and Libya during the 2011 Arab Spring. The reports also disclose the number of “removal requests” Google receives from copyright owners and governments, and the number of “user data requests” it receives from government agencies and courts. Until 2012 such disclosures were unique, but a week after Google’s June update, Twitter released a transparency report of its own.

Does this represent a growing trend towards corporate transparency? Google’s transparency efforts have their roots in the company’s contentious attempt to penetrate the Chinese market, which had
led to numerous requests from the Chinese government for blocks and for the release of user data and other information controlled by the company. But the issue goes far beyond China. Google (and other Internet companies) now routinely face a barrage of requests from governments worldwide looking to secure cyberspace, and to exert control over the companies that own and operate it. The Google and Twitter transparency reports are but a symptom of mounting government pressures. According to Google’s November 2012 report, “The number of government requests to remove content from our services was largely flat from 2009 to 2011. But it spiked in this reporting period. In the first half of 2012, there were 1,791 requests from government officials around the world to remove 17,746 pieces of content.”