The Executive Order: Government Control Of Private Corporations

Now that President Donald Trump has signed the Executive Order it is important to focus on Section 5 of the order. This section allows for the US Attorney General to take action against a private corporation if they demonstrate “unfair or deceptive acts or practices” as determined by the state. This is possible by synonymizing a digital platform with the term “publisher” as sated in Section 2 of the Order. However, another way to think about “social media” corporations is to consider them to be digital platforms where people talk to each other just as people would do in a real-life platform such as a restaurant. Using this lens that I suggested in my book Digital DNA (Rupa Publications, 2014), the Executive Order takes on specific implications for users of these digital platforms. Consider the real-life analogy of a digital platform for social interactions.

Think of a group of friends with strong political opinions walking into a restaurant for a meal and sitting at a table . These people represent a social network using a real-life platform – the restaurant – to talk. The fact that they were allowed into the restaurant suggests that they met the private establishment’s requirements for admission. Then they start to talk loudly saying really bad things about a political candidate. Some of what they say could be complete fabrications, but they say it anyway. Other patrons might begin to feel uncomfortable if they can hear this group. They complain to the restaurant owner. Keep in mind these are other patrons who are also in the private restaurant on their own volition and the restaurant owner let them in. On hearing the complaint, the restaurant owner has a few choices.

The restaurant owner can kick out the group that was causing distress to the other patrons, or the restaurant owner can make the decision that the network of friends are within their rights to say what they are saying, but the owner tells the other patrons to ignore what they are hearing because it’s all fiction. In a private restaurant, the owner has the rights to make this decision.

In the digital age, the restaurant is a digital platform such as Twitter where people can come and say what they want as long as they stay within the rules laid down by the private corporation. The corporation also has the rights to point out what is being said is false without shutting down speech. Just as in the case of the real restaurant the private corporation can ask people to leave or not admit a group if the private digital platform feels that the group would disrupt the standards laid down by the corporation. In any free market democratic system private corporations have these rights.

Now, think of the same restaurant operating within a “real-life” manifestation of the Order, where the government has over reaching regulatory powers as you would expect in a non-democratic system. Now, one of the complaining patrons could call the “government” and some form of an enforcement agency can come in and tell the restaurant owner that they have to shut down the restaurant because the owner did not adequately censor what was being said or the restaurant denied entry to some people. This, according to the sate, can be considered “unfair or deceptive acts or practices,” attracting censure from the government. At that moment, the autonomy of the private corporation has been usurped by the Government. By the way, it is not as if this did not happen in the past, ab example can be found in the practices of Stasi of East Germany which did similar things to churches that harbored people who spoke up against the Government. The Order applies a similar principle to the digital platform and is a step towards systems where the “restaurant” is not even allowed to open at all – for instance, China does not allow Facebook.  

So, what is the patron to do now that their favorite restaurant is either shut down or under state surveillance? This is where the real-life analogy fails. Precisely because these are virtual entities the patron could always find other “restaurants,” out of reach of Orders, and go there; and as more and more people go there, that virtual platform will become popular where people can say what they want because Orders cannot be enforced in those platforms. One only has to look around the digital space and such places will be found and if government orders throttle some digital platforms then people can go to other platforms anywhere else in the World. Digital platforms are not restricted by national boundaries within which government orders can be enforced.