E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The question presented to this panel as a point
of discussion was, “What is the platform’s role and responsibility for
information disorder during the 2020 presidential election season?” That’s a
fairly specific and narrow question — and arguably one tainted with the bias of hindsight. But it
does serve as an essential case study of how to answer the general inquiry that
is closing this conference: “Which internet architecture or platform governance
system would best contribute to resolving information disorder in online and
social media environments?”
This essay aims to introduce a model for
understanding when platforms have a responsibility to create governance systems
that adhere to core democratic values, such as transparency, accountability,
and participation.
There is no one answer to the question of “best”
internet architecture or platform governance system, just as there is no “best”
architecture for running a small business or structuring a constitutional
court. The precise architecture of a governance system will depend on (1) what
you are trying to govern and (2) at what scale. For instance, the governance
structure around municipal garbage removal has very different implications than
the governance structure around the board of elections. Garbage removal is a
service provided by a government agency, not an entitlement or right. In
contrast, elections and voting are rights protected by an entity like a board
of elections. Government systems that are transparent and participatory are
more critical where rights are concerned, while outcome might be more important
where the subject matter of governance is around a service. In either case, the
government architecture will likely change not just based on subject matter,
but scale. The architecture of governance of a small seaside resort town in
Massachusetts bears little resemblance to that of Kansas City, never mind the
European Union.
The answers to the above questions will then
define expectations around the role of the platform and how robust the platform
governance system should be in its commitment to the values of democratic
governance. This graph visually represents this idea:
So what does this framework have to say about
the underlying question of this panel and the next? What would be the best type
of internet governance structure for platforms in response to information
disorder during the 2020 presidential election season?
In a fundamental way, when it comes to
information disorder, platforms are both providing the service that causes and protecting a right (which is perhaps
why state action doctrine has often been an appealing comparison in internet
speech law). While internet platforms are private businesses, their undeniable
role in today’s information ecosystem makes them fundamental to the right of
freedom of expression necessary to allow for democratic self-governance (this
is only all the more true as it pertains to political elections). But providing
the service of video hosting and streaming doesn’t per se create obligations to
protect that right of expression. This is how scale interacts with the role of
the platform: the larger the platform, the greater the potential impact of the
role of the platform —
and, accordingly, the responsibility of the platform towards good governance.
This all might seem like a very long way of
demonstrating what many have long assumed: that platforms have a duty to stop
information disorder. But that answer, like so many talking points, does not
move us forward into how to practically make that happen. The goal of the
framework laid out in this short essay is to instead highlight the fundamental
variables that create our expectations for platforms — so we can define what exactly we mean when
we ask what the best internet architecture or platform system governance is to
solve a given problem in social media environments in all kinds of contexts.
Consider Google Search, for example, though search is arguably more a service
than a right of expression (or access). The massive scale at which it operates
demands a system of governance which more strongly adheres to democratic values
like transparency, accountability, and participation. Compare three other
companies: Hinge, also a medium scale platform but which primarily provides a
service of dating; with Twitch, a video game streaming site; and Medium, a
small scale long-form free blog service.
This model is important for one key reason: it
does not caveat the responsibility of the platform to create a good governance
structure on its nexus to causing, contributing to, or amplifying information
disorder or on the presence or absence of an election. Instead, the governance
obligations arise purely from descriptively neutral facts: the size of the
platform, and the scope of its role.
It leaves for another essay what specific
systems designs would best serve that function and where the proper points of
leverage are to motivate their implementation.
Kate Klonick is an assistant professor of law at St. John's University.