Dickinson on Big Tech’s Tightening Grip on Internet Speech

Gregory M. Dickinson (St. Thomas University – School of Law; Stanford Law School) has posted “Big Tech’s Tightening Grip on Internet Speech” (54 Ind. L. Rev. Forthcoming 2022) on SSRN. Here is the abstract:

Online platforms have completely transformed American social life. They have democratized publication, overthrown old gatekeepers, and given ordinary Americans a fresh voice in politics. But the system is beginning to falter. Control over online speech lies in the hands of a select few—Facebook, Google, and Twitter—who moderate content for the entire nation. It is an impossible task. Americans cannot even agree among themselves what speech should be permitted. And, more importantly, platforms have their own interests at stake: Fringe theories and ugly name-calling drive away users. Moderation is good for business. But platform beautification has consequences for society’s unpopular members, whose unsightly voices are silenced in the process. With control over online speech so centralized, online outcasts are left with few avenues for expression.

Concentrated private control over important resources is an old problem. Last century, for example, saw the rise of railroads and telephone networks. To ensure access, such entities are treated as common carriers and required to provide equal service to all comers. Perhaps the same should be true for social media. This Essay responds to recent calls from Congress, the Supreme Court, and academia arguing that, like common carriers, online platforms should be required to carry all lawful content. The Essay studies users’ and platforms’ competing expressive interests, analyzes problematic trends in platforms’ censorship practices, and explores the costs of common-carrier regulation before ultimately proposing market expansion and segmentation as an alternate pathway to avoid the economic and social costs of common-carrier regulation.

Whalen on Defining Legal Technology and Its Implications

Ryan Whalen (The University of Hong Kong – Faculty of Law) has posted “Defining Legal Technology and Its Implications” (International Journal of Law and Information Technology, 2022) on SSRN. Here is the abstract:

Legal technological developments have been both lauded as the promising future of the law and derided as a danger to the fundamentals of justice. This article helps reconcile these divergent perspectives by providing a definition of legal technology and a framework through which to understand its different types and their potential implications for the legal system and society more generally. Mapping technologies according to how specifically they afford legal uses, and the directness with which they engage in unmediated legal activities reveals different technological categories and their differing propensities to have legal, functional or general implications. This framework can help inform discussions both about which types of legal technologies to be excited about, and which to be concerned about, while also helping guide research, policymaking, design and adoption considerations.