Hamilton on Platform-Enabled Crimes

Rebecca J. Hamilton (American University – Washington College of Law) has posted “Platform-Enabled Crimes” (B.C. L. Rev (forthcoming 2022)) on SSRN. Here is the abstract:

Online intermediaries are omnipresent. Each day, across the globe, the corporations that run these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes; yet online intermediaries are almost never held to account for their complicity in the resulting harms.

This Article introduces the term and concept of platform-enabled crimes into the legal literature to draw attention to way that the ordinary business activities of online intermediaries can enable the commission of crime. It then singles out a subset of platform-enabled crimes—those where a social media company has facilitated international crimes—for the purpose of understanding and addressing the accountability gap associated with them.

Adopting a survivor-centered methodology, and using Facebook’s complicity in the Rohingya genocide in Myanmar as a case study, this Article begins the work of addressing the accountability deficit for platform-enabled crimes. It advances a menu of options to be pursued in parallel, including amending domestic legislation, strengthening transnational cooperation between international and domestic prosecutors for criminal and civil corporate liability cases, and pursuing de-monopolizing regulatory action. I conclude by acknowledging that the advent of platform-enabled crimes is not something that any single body of law is equipped to respond to. However by pursuing a plurality of options to address this previously overlooked form of criminal facilitation, we can make a vast improvement on the status quo.