Alston, Law, Murtazashvili & Weiss on Blockchain Networks as Constitutional and Competitive Polycentric Orders

Eric Alston (Finance Division, University of Colorado Boulder), Wilson Law (Baylor University),
Ilia Murtazashvili (University of Pittsburgh – Graduate School of Public and International Affairs), and Martin B. H. Weiss (University of Pittsburgh – School of Computing and Information) have posted “Blockchain Networks as Constitutional and Competitive Polycentric Orders” on SSRN. Here is the abstract:

Permissionless blockchains have been described as a novel institutional building block for voluntary economic exchange, with unique protocol features such as automated contract execution, high levels of network and process transparency, and uniquely distributed governance. We argue that conventional institutional economics analysis of blockchain networks is incomplete absent a more robust application of descriptive polycentric analysis. Though the distributed governance that permissionless blockchain protocols provide is novel, these networks nonetheless require ongoing coordination between stakeholders and are subject to competitive pressures much like other private organizations pursuing similar goals for a set of users who can choose among providers. We characterize change on blockchain networks as resulting from internal sources and external sources. These internal sources include constitutional (protocol) design and the related need for collective choice processes to update protocols. In addition to law and regulation, competitive pressure is itself a critical external source of governance. Predominantly through analysis of two leading cryptocurrency networks, Bitcoin and Ethereum, we illustrate how conceptualizing of blockchain as a polycentric enterprise enhances our predictive and descriptive understanding of these networks.

Bhagwat on Platform Editorial Rights

Ashutosh Avinash Bhagwat (UC Davis – School of Law) has posted “Do Platforms Have Editorial Rights?” (1 Journal of Free Speech Law 97 (2021)) on SSRN. Here is the abstract:

Social media today plays a central, albeit vexing and divisive role in our social and political culture. In response to the alleged failures of social media, a vast array of regulatory proposals have been advanced, and in some cases legislatively enacted, that would restrict the ways in which social media platform owners may moderate content on their platforms. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms’ Section 230 immunities in various ways. What all of these proposals have in common is that they seek to impose legal restrictions on how social media platforms control the content that they host, refuse to host, display, and prioritize.

These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms—what I call editorial rights. This article considers whether, and to what extent, social media platforms enjoy First Amendment editorial rights, and the implications of those rights for assorted regulatory initiatives.

I begin by defining First Amendment editorial rights, and distinguishing between different kinds of editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.

Kröger, Lutz & Ullrich on The Myth of Individual Control Over Privacy

Jacob Leon Kröger (Technische Universität Berlin; Weizenbaum Institute), Otto Hans-Martin Lutz (Weizenbaum Institute), and Stefan Ullrich (Weizenbaum Institute) have posted “The Myth of Individual Control: Mapping the Limitations of Privacy Self-management” on SSRN. Here is the abstract:

Despite years of heavy criticism, privacy self-management (i.e., the principle that people individually manage their privacy via notice and choice) remains the standard of privacy protection throughout the Western world. Building on previous research, this article provides an overview and classification of the manifold obstacles that render privacy self-management largely useless in practice. People’s privacy choices are typically irrational, involuntary and/or circumventable due to human limitations, corporate tricks, legal loopholes and the complexities of modern data processing. Moreover, the self-management approach ignores the consequences that individual privacy choices have on other people and society at large. Regarding future research, we argue that the focus should not be on whether privacy self-management can be fixed by making it more user-friendly or efficient – it cannot. The concept is based on fundamentally wrong assumptions. To meaningfully address the potentials and dangers of personal data processing in the 21st century, a shift away from relying purely on individual control is inevitable. We discuss potential ways forward, stressing the need for government intervention to regulate the social impact of personal data processing.