This article explores some thought experiments about the constitutionality of corporations acting at the behest of foreign governments.
4A thought experiment
An American citizen uses a healthcare web site to manage his lab results, medical images, medications, and communications with his doctors, all of whom are in the US, as is the web site’s hosting and corporate headquarters. The web site also serves citizens in other countries in the same manner. One day, the German government obtains a warrant from a German court to gain access to an American’s private health information.
Would a libertarian say that the web site is a private company and they may do as they please to violate the American’s privacy rights by handing over information to agents who have no jurisdiction? I think we can all agree that the answer must be no.
1A thought experiment
Canada, Germany, New Zealand, and every other country enact hate speech legislation that is incompatible with the American Constitutional protections of free speech. American social media web sites must enforce these “community standards” to the satisfaction of all these jurisdictions in order to do business with users in those countries. It would be costly to treat each user specifically in accordance to the laws and regulations in their jurisdiction, so the company prefers to implement a uniform set of community standards that becomes a superset of all laws and regulations in every jurisdiction. That means every country’s government mandated censorship now applies to American citizens to infringe upon their free speech rights.
Would a libertarian say that the web site is a private company and they may do as they please to violate the American’s free speech rights?
Would a libertarian agree that a private company may act as an agent on behalf of a foreign government to implement foreign laws and regulations on American citizens, such as China’s social credit system?
9 thoughts on “Corporations Acting as Agents of Foreign Governments”
International Law and “Hate Speech” Online
Zuckerberg, Facebook & Three “Fact-Checkers” Sued For Government Sponsored Censorship
Here is a different angle on the censorship problem. Social media companies coordinating to suppress the speech of particular people, such as Alex Jones, is similar to price fixing. Enforcing anti-trust regulation is unpalatable, which is why I would prefer to frame the problem as one of private companies colluding with domestic and foreign governments to censor free speech. I believe 1A violations occur when private companies are threatened, intimidated, or otherwise coerced by government agencies or officials (i.e., members of Congress have voiced threats against social media companies to implement controls over speech otherwise government policies will be put in place). Therefore, claims that private companies are free to do as they please in this area are mis-characterizing the relationship to the government’s involvement.
Today, I saw a notice from Facebook of a change to its terms of service. It reads as follows:
Update to Our Terms
Effective October 1, 2020, section 3.2 of our Terms of Service will be updated to include: “We also can remove or restrict access to your content, services or information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”
Note that Facebook does not specify which legal and regulatory jurisdictions are in force. Presumably, Facebook is judging for themselves which ones impact Facebook, and then behaving in a manner which enforces all laws and regulations on users, regardless of whether an individual user lives within each particular jurisdiction’s laws and regulations.
Karen White is Twitter’s Head of Public Policy for EMEA.
Facebook operates a take-down portal that gives access to government agents, including New Zealand.
Balaji Srinivasan foresaw it all.