Data and the First Amendment

June 4th, 2013

The glamorized vision of the internet as a free, unregulated medium has not been true for some time, due in large part to two fronts. One front is the fact that leading intermediaries, such as Google or Facebook, have great control over what we see. The other front is governments in many countries that limit what their people can see. The latter problem is not a problem we face in the United States, at least directly. However, I fully expect (and indeed am already seeing) attempts within the United States to use the regulatory arm of the government in efforts to minimize the ability of the intermediaries to control what is is that we see. FTC suits against Google for controlling search results are early previews of things to come. As well, efforts to clamp down on 3D printing through limiting access to files may become a necessity, as the Department of Homeland Security has already said it is “impossible” to contain 3D printed firearms.

When these attempts to regulate arrive, corporations like Facebook or Google (have and) will shield their efforts within the First Amendment. We saw that last year with Eugene Volokh’s white paper for Google that raised the First Amendment as a defense.

Earlier this year, Google commissioned Eugene Volokh to author a white paper laying out the position that information generated by algorithms, namely search results, are entitled to First Amendment protections. The Times picked up the story. Then, Google also commissioned a paper from Robert Bork (!) and Gregory Sidak arguing that Google’s policies are consistent with antitrust rules. These moves are a preemptive response to pending investigations by the FTC that Google’s search results violate antitrust rules. In other words, advancing defenses based on the First Amendment defense, as well as antitrust law.

Tim Wu was not persuaded. This wil remain a fertile ground for scholarship as these arguments become much more salient.

In addition to Andrew Tutt’s article that I blogged about last year, there are a few leading papers that explore the topic of Data and the First Amendment.

First, Jane Bambauer’s Is Data Speech in the Stanford Law Review.

Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other, more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is.

This Article makes two bold and overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with knowledge, that regulation should draw First Amendment scrutiny.

In combination, these theories show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform, and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to the privacy debates, data is speech.

Second, Stuart Benjamin writes Algorithms and Speech in the Pennsylvania Law Review.

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance—algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence.

Third, Tim Wu writes Machine Speech, also in the Pennsylvania Law Review.

I will write more about these important works shortly.