It’s The Greatest Private Threat to Liberty in Our Modern Age
By Rachel Bovard
I haven’t always seen Big Tech as a big problem… Libertarian-leaning conservatives like me, who came of age under the presidency of George W. Bush before riding the Tea Party wave of the 2008, were steeped in a political movement that gave wide latitude and deference to the free market, focusing instead on the perils and pitfalls of big government.
The corrupt and distorting threat of big government remains a real and present danger. But in 2013, I noticed a peculiar nexus between big government and big business that fundamentally altered how I looked at the “private” industries of Big Tech.
As part of the spy program PRISM, detailed in information leaked by former CIA contractor Edward Snowden, the U.S. National Security Agency and the Federal Bureau of Investigation had been, for years, collecting audio, video, photographs, e-mails, and documents from the internal servers of a “who’s who” of Silicon Valley companies – Facebook, Google, Microsoft, Apple, Dropbox, and a host of others.
Not only that, but these companies had willingly thrown open the back door.
Largely without understanding what they were doing, Americans had willingly given Big Tech the full details of their inner and outer lives. And Big Tech was willing to hand it over to the government with little prodding. What else were they up to? The more I paid attention, the more I began to recognize the troubling implications of private power that existed at this scale, without transparency or accountability.
Since 2013, the power of the Big Tech companies has only continued to grow. These are hardly the garage-basement startups of the 1990s… Rather, Google and Facebook, in particular, are now mega-corporations capable of distorting speech, thought, and behavior – not to mention privacy and data property rights – on an international scale, exerting unprecedented levels of influence over billions of people.
How the Right – and libertarians, in particular – should respond to this development has been a particular focus of mine. I have testified before Congress about the need to make sure competition in the tech marketplace is preserved, debated the issue in places like Newsweek and USA Today, participated in policy symposiums, and discussed the dynamics of corporate power, government policy, and liberty on countless panels.
But where I expected to find some agreement with libertarians on the nature of the threat, there very clearly exists a divide on two key issues. The first is whether these companies are truly private, or if they benefit from special government protections – subsidies – that should be reformed or repealed. The second is whether or not private power can be a true threat to liberty.
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Washington, D.C.-based libertarians at the Cato Institute, Charles Koch Institute, the Competitive Enterprise Institute, Reason magazine, and others, frequently disagree with me on both of these points, arguing that any action by the government against the tech companies – even modifying the laws that govern them – would be antithetical to the principle of small government and to liberty itself.
But as the threat from Big Tech grows, continuing to advance such a case requires an ever-narrower definition of what liberty truly means… to the point where our rich tapestry of American liberties is reduced and redefined as a celebrated submission to Mark Zuckerberg, Sundar Pichai, Jack Dorsey, and Jeff Bezos, simply because they are not the government.
In other words, the arguments are intentionally narrowed to sidestep a growing threat from mega-corporate power that rivals – and in some cases, arguably supersedes – that of the government. In doing so, the definition of “liberty” is reduced to living under the corporate tyranny of two or three companies that distort the flow of discourse in a free society, bend independent thought in one direction instead of many, alter voter behavior and thus the nature of free elections, impede market access for small competitors, and otherwise change the nature of the social order.
It is a style of libertarianism so reductive that it seamlessly evolves into a corporatism that flips the American experiment on its head. Priority is given to the rights and liberties of corporate America to set the terms for how we, as a free people, will live together – over and above the free expressions, preferences, and independent choices exercised by Americans themselves, for whom this entire system was in fact built.
Applauding and promoting this backwards order of things as merely the freest expression of the free market requires a studious non-acknowledgement of some fundamental facts about Big Tech, the government, and how free societies operate.
Distorting the Marketplace of Ideas
Much of the ire toward Big Tech arises from the way in which they enforce against certain types of speech that occur on their platforms. For years, conservatives have pointed to examples that Big Tech companies treat right-of-center content differently, enforcing against narratives they do not like while amplifying others, all on ideological grounds.
Both Right-leaning and Left-leaning libertarians have dismissed these claims as baseless anecdotes. But there is an increasing amount of evidence that such narrative control is routinely exercised. Google has suppressed conservative content and tweaked its algorithms in favor of big business over small. The major platforms have allied themselves with the World Health Organization’s (“WHO”) narratives regarding COVID-19, removing any content that contradicts the WHO – despite the WHO being infamously wrong in January when it confidently asserted there was “no clear evidence of human-to-human transmission” of the virus.
Most infamously, Twitter and Facebook suppressed circulation of a negative story about Hunter Biden, son of President-elect Joe Biden, in the weeks leading up to the election. This behavior, in conjunction with a near-total news blackout of the story by mainstream cable networks, ensured that many Americans did not get news directly related to a presidential candidate that could have informed their vote.
Still, the Cato Institute defends behavior from the tech platforms – including behavior that limits the availability of medical information – as merely freedom of association for the tech platforms. The tech platforms, like you and me, are free to associate with or ignore whatever speech and ideas they want.
But such arguments fall flat in the face of scale. The legality of content moderation is not itself the issue – but, rather, the profound impact these actions have on the nature of free thought and expression when done at the scale at which these companies exist.
Facebook is not merely speechifying on a single billboard in the northeast corridor. Google is not simply one corner of a multifaceted Internet search marketplace. These companies very much are our news aggregators and information dispersal sites.
When Google decides what content to suppress or amplify, it does so for 90% of the global marketplace. Facebook, similarly, decides what 2.7 billion monthly active users will see – or not see. A single algorithmic decision made by a private corporation, accountable to no one, changes what kind of viewpoints and information are available to billions of people around the world.
Corporations at this massive scale can distort and alter the marketplace of ideas in ways that impact behavior, free thought, and information gathering – foundational elements necessary for a free society to not only thrive but to exist at all.
Ignoring the impact of this type of power – or denying that it exists at all – is a willful and one-sided ignorance reflecting an intentionally reductive version of liberty whose truest expression is freedom for the mid-level content manager at Google to reformulate the boundaries of our social order, unencumbered by the thoughts and opinions of the people and legislators who live in it.
Meanwhile we, the ungrateful proles, are told that any genuine criticism we might have about this re-formed order of things means only that we are too dumb to understand “how free speech is supposed to work.”
Defenders of Big Tech claim that such private censorship is a harmless exercise of the First Amendment, and that those unhappy with the moderation decisions can merely opt out, or, even better, build their own Facebook. Moreover, they say, private platforms are distinct from the government, from whom you cannot opt out, and which can use violence to imprison you.
But such an argument ignores the broader network effects of these platforms – how they change free thought and behavior – as well as the fact that merely “opting out” is hardly an option.
These companies are de facto monopolies, and the various antitrust lawsuits filed against Google and Facebook suggest they are per se monopolies, as well. Alternatives exist, but they provide no real competition. Opting out of Google, whose services are embedded in nearly every app on your phone and whose ads gather information on billions of individuals across the Internet, is virtually impossible if you live in the modern world.
But the network effects of these platforms – how they shape behavior – persist regardless of whether one uses the platform or not. So many people use them that the platforms can shape and alter society around the individuals, rather than through them, colluding at times with the government.
Myanmar recently used the ubiquity of Facebook in its country – where many of its citizens confuse Facebook with the Internet itself – to pursue a campaign of ethnic cleansing. Earlier this year, Facebook became a de facto arm of the United States government, refusing to host anti-lockdown protest content for events it determined would violate local ordinances on social distancing – curtailing speech that would be constitutionally protected otherwise. (Facebook took no such action against Black Lives Matter events that violated local social distancing orders.)
When the scope and control of speech rise to this scale – where it directs behavior in large swaths of society for ideological ends, and when the alternatives exist but are so tiny as to be functionally irrelevant – the point that it’s “not really censorship unless it’s done by the state” becomes purely semantic.
It requires one to deny the obvious fact that most human interactions are increasingly taking place on a handful of privately owned platforms, and the scale at which this is done asserts a troubling amount of control over what free people know and believe.
It is censorship in the classical sense, outsourced to private companies. It is one thing for a private entity to exercise its choices against the content it wants to host. It is another for private business to do it as a monopoly or a cartel, where users cannot avoid either the service or the ramifications of its choices in changing the society in which they live.
The fact of the latter means that the people who care about government censorship should be equally concerned about this type of thought control when exercised by private power at a massive scale.
A Free Market for Whom? Big Tech Versus the Rest of Us
Acknowledging that the monopoly power of these companies gives them censorship control does not logically lead to a conclusion that the government should act. That requires a separate argument. And there are many thoughtful arguments as to why proposed government action against Big Tech – be it antitrust enforcement or reform of their statutory protections – should be carefully considered for the trade-offs involved.
But such arguments tend to characterize any effort to engage Big Tech from a lawmaking standpoint as “government overreach” – intentionally avoiding the practical reality that the government is already heavily involved with these platforms.
In other words, these companies are not “free market” unicorns, arising without any benefit from the government itself. Rather, Big Tech and the government are already well-entangled, both between the tax subsidies the companies received and their statutory protection under Section 230 of the Communications Decency Act.
The libertarian Ludwig von Mises Institute has noted that “libertarians are right (and consistent) to say that private firms have the right to discriminate based on political views.” However, “these tech firms wield enormous power, are not private as many would believe and benefit from a very unique form of corporate welfare.”
Not only do these firms receive generous tax breaks, but they are the recipients of a special government carveout, thanks to Section 230, which protects Big Tech companies from being sued for the content users post on their sites. The law also creates a liability shield for the platforms to “restrict access to or availability of material that the provider or user considers to be… objectional, whether or not such material is constitutionally protected.”
In other words, Big Tech is a First Amendment actor like the rest of us – but a privileged one. It is not subject to the same liability as, say, movie theaters, newspapers, or this magazine.
This is, in part, by design… The platforms would be overwhelmed by lawsuits without such legal protection, which was part of the genesis of its creation – to protect a nascent Internet and allow it to develop. (Libertarians who use the threat of lawsuits as a justification for Section 230 protections misplace their argument, which is with the tort system that allows such lawsuits, rather than the inherent worth of Section 230 itself.)
But what was once a porous liability has been judicially distorted into a bulletproof one that courts have interpreted as protecting censorship itself. As Justice Clarence Thomas noted recently, “Section 230 (c)(1) protects a company from publisher liability only when content is ‘provided by another information content provider.’ Nowhere does this provision protect a company that is itself the information content provider.”
In many other contexts, libertarians intuitively understand the negative, market-distorting power of special government carve-outs for specific industries, and of the need to update or reform statutes that have become judicially contorted beyond what Congress intended, or now intends.
Not in D.C., however, where an entire think-tank industry is defending Big Tech’s subsidy and characterizing any effort toward its reform – or threats of repeal to incentivize reform – as the threat of big government against free speech.
But such framing distorts the issue… Though Big Tech’s libertarian advocates attempt to conflate Section 230 with the First Amendment, the two are distinct. If Section 230 is repealed, the First Amendment’s protections will still exist. Moreover, this is not a binary question of the free market versus regulation. Rather, it’s a question of an existing government subsidy being used to censor rather than to give voice to, as the Section 230 statute says, a “true diversity of views.”
To borrow again from the libertarians at the Mises Institute…
… the pure free market position would be repealing 230 altogether, so that Twitter or Facebook face the same liability as the New York Post or, indeed, as you and I … naïvely throwing up our hands and hoping some free speech startup someday survives the woke gauntlet is equivalent to quitting the field of ideas while the other side is very much on the march.
Freedom From Tyrannical Governments and Corporations
Like many libertarians, I believe in the innovative, creative, and transformative power of what Americans can do in a free marketplace. But the power of the free market is only as strong as those dedicated to ensuring its protection. In other words, ensuring the free market can actually solve problems requires a consistently curious and vigilant oversight – and a willingness to engage to fix market distortions where and when they arise.
Such a posture is not antithetical to libertarian thought. Even Friedrich Hayek, the great advocate of the unfettered market, was hardly a doctrinaire noninterventionist. He did not subscribe to what he called “dogmatic laissez faire.” Rather, over the course of his life, Hayek advocated that certain governmental functions beyond the minimal state were not only justified… but necessary to the functioning of a free-market system – especially when confronting monopolies.
Hayek was an unparalleled advocate of the dangers of centralized government control. But his rejection of “freedom as dogma” suggests he intuitively understood the danger of idolizing the concept of freedom in such a way that allows for its slow and intentional re-definition by corporate interests.
Blindly and unquestioningly clinging to the cloak of freedom, in other words, can easily allow it to be transformed into a meaningless shroud under which other forms of oppression can hide.
Classical liberalism has a long history of skepticism toward concentrations of power, both corporate and government. Indeed, an exclusive focus on the threat to freedom solely from state power is a relatively modern development.
Jon Stuart Mill acknowledged that society’s “means of tyrannizing” were not limited to politicians. Alexis de Tocqueville observed the silence a majority can enforce against opinions with which it disagrees. George Orwell wrote an entire essay worrying more about the dangers of self-censorship than he did of that imposed by the government. Barry Goldwater, whom Reason magazine dubbed “20th-century America’s first libertarian politician” in 1998, exhorted Americans to “make war on all monopolies – whether corporate or union,” calling the enemy of freedom “unrestrained power.”
Generations of classical liberal and libertarian-minded thinkers have understood that when left unchecked, both democracy and capitalism can be susceptible to tyranny – the former to tyranny of the majority, the latter to tyranny of monopoly or cartels. Maintaining true freedom, then, requires a delicate balance of power between the state, corporations, and society.
In amassing unprecedented power over our speech, information, and free thought, Big Tech represents the greatest private threat to liberty in our modern age. True advocates of freedom stand against government tyranny. It is incumbent upon them to preserve the balance of our liberties in those rare moments when they are threatened by corporate tyranny, as well.
Rachel Bovard is the senior director of policy at the Conservative Partnership Institute and a senior advisor to the Internet Accountability Project. She is a former senior staffer to Sen. Rand Paul (R-Ky.) and Sen. Mike Lee (R-Utah).