Federal and state governments have leaned on technology companies to provide an ever-increasing range of core government activities—from the use of algorithmic decision-making in the criminal justice system to powerful surveillance technologies to providing the government’s core information infrastructures.As privately owned companies continue to become intricately involved in many areas of governance, courts should recognize a First Amendment right of access to certain information held by these companies in order to ensure that citizens’ long-enjoyed right to obtain information about their government and to hold power accountable remains viable in an era in which private actors exert significant control over our civil liberties. Expanding the First Amendment’s right of access would be a radical and robust measure and one that would directly disrupt the disturbingly asymmetrical power dynamics exerted by private entities. By ensuring citizens’ right to knowledge and self-government in the digital age this measure would ensure that the government could not obfuscate civil rights and civil liberties violations or evade general accountability by operating through privately owned proxies.
The right of access as a means of ensuring government transparency has strong roots in the American legal tradition. In 1961, legal scholar Alexander Meiklejohn argued that democracy depends on a citizen’s ability to obtain information necessary for self-governance and that the First Amendment is intended to ensure this structural protection for democracy.Noted scholars like Thomas Emerson have found support for this conception in the writings of James Madison, author of the First Amendment. Madison famously asserted that “[a] popular government, without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both.” Supreme Court Justice William Brennan also referred to this Madisonian principle in a famous right of access opinion that highlighted the right’s “structural role . . . in securing and fostering our republican system of self-government.” Ultimately, this American right is enshrined in the common law, the Constitution, and various laws including the Freedom of Information Act (FOIA) and its state-level equivalents.
As our democratic institutions have become more complex, these rights have been expanded over time to meet the challenges of increasing opacity. In the 1950s, as the number of executive agencies grew, amassing unprecedented power with little direct accountability to the public, Congress passed the FOIA over a presidential veto in order to ensure freedom of information.As recently as 2016, Congress echoed the importance of this view by passing an amendment to the FOIA that “emphasizes in no uncertain terms . . . that the balance between the American people’s right to know about their information and the government’s right to keep a secret shall always be balanced in favor and presumed to be the American people’s right.” In championing this bill, Jason Chaffetz, former chairman of the House Committee on Oversight and Government Reform, specifically highlighted the overuse and misapplication of FOIA Exemption 4, which permits the government to withhold confidential business information.
Today, we are again at a moment when government has become even more complicated and harder to hold accountable, as privately owned technology companies become inextricably intertwined with federal, state, and local government actions. This corporate dominance is born out of an ongoing trend of private intermingling with the administrative state.In 2002, Martha Minow, the former dean of Harvard Law School, wrote that “schools, prisons, welfare agencies, and social service programs” are increasingly undergoing a process of privatization. But what was once a nascent trend has now grown into the status quo. As of 2015, over 40 percent of the federal workforce was made up of contractors, many of which are primarily technology companies. And the services that these technology companies are providing are ever more core to our democratic order and are thus intricately woven into the most intimate parts of our lives. Technology companies’ algorithms determine “whether you get a job interview, how much credit you access, and what news you see” as well as the level of your health care benefits or whether you will be charged for a given crime.
As their structural power grows, these entities evade public scrutiny in how they carry out government functions, a situation that carries a potential for enormous negative consequences. Little is known about how these companies collaborate with and advise the government in part as a result of their fervent insistence that their actions remain in the private realm. Companies that contract with the government are afforded significant privacy in carrying out government tasks through various trade secret and confidential business information exemptions to public records laws, preventing public accountability over government processes and power.In some cases, the companies themselves are left in the dark about how their technology is employed by the government. In response, this article suggests that the right of access should reach beyond algorithms to all areas of corporate governance through which government functions are influenced, controlled, or dominated by private technology companies.
This proposal echoes a solution to a Gilded Age debate over whether the principles of democracy demand that transparency rights be extended to private industry.Over a century ago, philosopher John Dewey first argued that as the Industrial Age introduced new, complex, and hidden technologies into society, better education about these systems was necessary to the functioning of democracy. Dewey initially proposed this as a pedagogical theory in his work School and Society, and in subsequent years, a small group of scholars revived it and named it “technological transparency.”
Borrowing from Dewey, this article argues that similar technological transparency is necessary in what some have called our new Gilded Age,as technology companies have grown to occupy a quasi-governmental role in society, directly impacting individuals’ civil rights and civil liberties and controlling other key government functions. As we shall see, these companies have become not only the primary influencers over online speech but also integral agents in the functioning of the criminal justice system, the military, and even international diplomacy. A right of access is necessary to balance these structural changes in institutional power. And while other proposals to increase tech companies’ accountability through taxes, regulations, antitrust enforcement, or fiduciary obligations are helpful, an expanded right of access remains the most basic and most necessary fix that could assist all other reforms.
To make the case, this paper will first describe how technology companies are increasingly acting as quasi-government institutions. Next, it will define the roots and parameters of the right of access as well as a short explanation of Dewey’s original notion of technological transparency. The final section will take up the case that particular democratic principles especially require considering expanding the right of access to technology companies.
I. Silicon Valley Companies: The Call for Transparency in the New Towns
Nobody seriously doubts that the titans of “Big Tech” have begun to dominate our lives.Over the past two decades, several Silicon Valley companies have become extremely powerful in controlling speech. Reflecting that reality, Facebook decided this past year to create a new “Supreme Court” of speech, a body of forty salaried judges who will work part time for three years and who will have the ability to rule on Facebook’s hard cases to determine whether or not to delete certain information. Academics like Kate Klonick and Jack Balkin have written about the growing power these media giants wield over speech and have suggested various accountability measures such as treating these new governors as information fiduciaries with certain obligations. However, the power these companies exert extends well beyond the sphere of speech. Amazon, which surpassed a trillion dollars in market value (second only to Apple) in 2018, currently offers a variety of tools to local law enforcement agencies around the country and has recently captured 46 percent of online shopping in addition to delivering packages and acting as a credit lender, a producer of content, and a leading provider of cloud server space. Facebook has established a market value of more than $600 billion and has faced scrutiny for its improper influence in the 2016 election and its more recent decision to create its own currency. Google, one of the world’s greatest aggregators of personal data, has become heavily involved in providing tools for the Department of Defense and has access to highly granular information about our daily lives.
To a large extent, these companies are acting as quasi-sovereigns—through their sheer scale and breadth—wielding power over multiple important aspects of our lives; and just likeany other government entity, they should be held accountable by making their information public. For instance, it is well acknowledged among scholars, lawyers, and journaliststhat through algorithmic choices, technology companies are transforming public life in completely novel ways compared to other industries. Some thinkers predicted the emergence of this new form of power in the internet era; for instance, John Perry Barlow, the self-dubbed internet pioneer, clearly presaged that a new “sovereignty” would arise on the internet. And while academics like Jeffrey Sachs have long warned the public about the rise of “corporatocracy,” Silicon Valley companies have several unique properties that demand a need for transparency rights to apply to them.
A. Technology Companies That Exercise Government-Like Control and Functions Should Be Subject to the Same Accountability Measures
Silicon Valley companies wield power over the most intimate parts of our lives,including having the ability to influence our identities and customs, a notable capacity at a moment when our allegiances to cultural traditions, religion, and unified visions of a nation state are waning. In some cases, the government is relying on external companies to also control sensitive identifying information like Social Security numbers and medical records, and the government has even relied on private vendors to issue government-backed credentials. In his book The Black Box Society, Frank Pasquale has written aptly about the control Big Tech’s algorithms wield over our lives, describing how “credit raters, search engines, major banks, and the TSA take in data about us and convert it into scores, rankings, risk calculations and watch lists” that further categorize us in ways that shapes our identity. Recent news articles have also observed secret Facebook groups that have provided forums for police officers and Customs and Border Protection agents around the country to cultivate extremist mindsets showing the power of these tools to – if not intentionally then passively – incubate certain persuasions and group thinking in the ways that quasi-government actors often do.
Second, these companies wield power over the most basic and traditional functions of government. These range from influencing the development of transportation systemsto restructuring banking functions (through apps like Venmo) to hosting public information and serving ads that influence elections to providing for the nation’s physical safety. As an example, several Silicon Valley companies are working closely with Department of Defense and local law enforcement agencies to provide surveillance and technological tools like facial recognition systems, license plate readers, and police body cameras. Amazon Rekognition, to name one such tool, is used by the CIA as well as state governments to detect objects, scenes, and faces, even though the tool has been found to employ inappropriate gender and ethnic biases. Palantir’s Gotham service, to name another, is used by three hundred California cities (collectively home to about 7.9 million people) through the Department of Homeland Security to assist local law enforcement via the use of surveillance tools that supposedly attempt to predict crimes. These tools have in some ways supplanted the most essential government function of police power - the capacity of the state to enforce laws and regulate behavior.
Third, unlike other private entities, these companies are unique in that they provide multiple government functions at once, making transparency simultaneously more important and more difficult. Tech companies can build tools and programs for schools, banks, aeronautical companies, and the police all at the same time. Amazon, for instance, provides storage for many government records in “the cloud,”offers law enforcement tools, and provides credit. Facebook has experimented with building planes and drones, exerts powerful force over our elections, and is exploring the creation of its own cryptocurrency. As New York Times technology reporter John Roose has observed, the companies’ operations are “sort of fractal . . . there are ten different parts of [the company] that you don’t understand at all. . . . And so that makes it very hard to create a unified theory of [these companies] and how [they] work.” The need for accountability increases in cases like these where institutions carry out multiple government functions at once.
It is also clear that efforts to ensure accountability and transparency from these companies have not kept pace with their expansion into areas traditionally controlled by, or at least regulated by, government. Several companies offer services allowing users to pay each other online, Amazon is a credit lender, and Facebook plans to create a currency, but none of these companies are regulated in the way that financial service companies are. They build tools to assist in posting job advertisements, scouting talent, and filling vacant positions, but the algorithms they create are not subject to employment laws.They assist law enforcement with surveillance and incarceration but are not treated like police.
Last and perhaps more symbolically, tech giants have also taken on the emblematic role of quasi-state actors. While presidents have often conferred with powerful corporate actors over particular subjects, it has seldom been the case that a single industry has held sway over so many different facets of politics from trade to defenseand even, some say, exerting ideological sway over the decisions of a sitting president. Beyond the national arena, Silicon Valley companies have taken a seat at the international stage. In December 2015, the EU launched a multi-stakeholder Internet Forum where representatives from Facebook, Microsoft, Twitter, and YouTube sat alongside ministers from EU states to begin negotiating a voluntary code of conduct on terrorist content and hate speech online. Representatives of several foreign powers have made the journey to Silicon Valley to speak with the modern sovereigns; an ambassador from Denmark arrived in Silicon Valley with a letter from the Danish queen ; and Germany, France, and Slovakia have all recently appointed “digital ambassadors.” It is safe to assert that some important international bodies now regard Big Tech concerns as quasi-sovereign entities.
B. Why Technological Transparency Is the Solution
Given Silicon Valley’s ever-growing influence over government, various scholars have discussed how to neutralize this asymmetrical power structure by arguing for various accountability measures. Much of this conversation is concerned with regulating Silicon Valley’s power over speech. For instance, Professor Edward Lee has suggested a “hybrid agency” that would oversee various takedown requests.Professor Jody Freeman has argued—in an argument that parallels one I have made —that the companies’ roles as information agencies should trigger certain legislative restrictions. Perhaps the most alluring model is that of Jonathan Zittrain and Jack Balkin, who assert that social media companies are information fiduciaries, like lawyers and doctors, and therefore should be held to higher standards of loyalty and care around speech as well as privacy. Some have persuasively argued for the return of a strong antitrust regime.
While many of these models are convincing, applying any of them alone without a foundational right of access would be incomplete. Many of these models even admit that more transparency is necessary for their framework to work.Unlike other models, a transparency framework would hold Silicon Valley companies accountable for their control of information that extends far beyond the realm of speech forums. The extension of the First Amendment right of access to certain corporate proceedings and records of technology companies would uniquely account for these companies’ increasingly unchecked influence over various realms of government in a way that the aforementioned proposals do not. For instance, while the information fiduciary model is limited to the “special relationships between companies and the people,” the right of access is made available to all persons, not only those who have opted to agree to a site’s terms of service, in the same way that the FOIA is available to all citizens. Moreover, demanding a more robust transparency framework speaks to the public distrust in many of the tech giants, particularly after repeated revelations of corporate misconduct. Where the fiduciary model is based on “trust,” the right of access model appropriately matches the skepticism that tech giants deserve to be confronted with as they wield their (ever-increasing) asymmetrical power in complex and secret operations and have been shown to abuse the public trust. If it was ever appropriate to accord companies like Facebook and YouTube the benefit of the doubt in such weighty affairs, those days are surely in the past. Unlike the information-fiduciary model that could be used to shelter abusive and manipulative corporate behavior, a robust transparency would not have the same limitation. As Justice Brandeis famously said, “sunlight is the best of disinfectants.”
II. Roots of the Right of Access
The right of access is rooted in the philosophy that because citizens are the ultimate sovereigns, they must be able to access information necessary to hold government accountable.As David Arcadia notes, this principle “underlies the First Amendment’s structural role as a facilitator of democratic control.” While the First Amendment is thought to primarily protect speech, scholars have often considered the right to free speech as a complementary component to the Amendment’s “larger commitment to transparency.” As First Amendment scholar Robert Post has stated, democratic legitimization “requires that government action be tethered to public opinion. . . . It is for this reason that First Amendment coverage presumptively extends to all communications that form public opinion” and by contrast “[a] state that controls our knowledge controls our minds.” Or, as free speech scholar Vincent Blasi has argued, the general populace must first be privy to the behavior of its rulers in order to judge them. In essence, we need access to information that impacts our lives in order to make meaningful decisions about democracy.
The tenets underlying the right of access are rooted as far back as the seventeenth century in the English judicial system, predating the formation of the United States. As the Supreme Court has noted, under English common law, public access to court proceedings was “the rule in England from time immemorial.”English courts consistently held that one could access government records where such access would benefit the public. Under that reasoning, a member of the public was permitted to inspect government documents and claim that right in situations where records would benefit litigation. Eventually, British courts would construe access to information even more broadly. For instance, some British courts found that, once a document was entered into evidence before a judge, individuals were granted a presumption of access to it.
Early American courts quickly adopted and expanded this practice.In the early United States, courts held that the attorney general could bring a suit to access non-judicial records on behalf of the public; some jurisdictions within the United States recognized an even broader right of access by allowing the citizen to bring the case in his or her own name. Eventually suits became allowed in most circumstances where litigation might expose a public wrongdoing or help monitor government functions. In 1978, in Nixon v. Warner Communications, Inc., the Supreme Court firmly held that the right of access applies to both public records and court records.
Today, the First Amendment’s broad and presumptive right of access is hard to overcome even where privacy and proprietary interests are asserted. Parties advocating for withholding must show specific negative effects—in particular, a privacy harm to an individual or the disclosure of confidential business information.For instance, access to records can be restricted in cases involving a rape, family dispute, or sexual crime in order to protect the privacy of the victims and especially the minors involved. But even in those highly invasive cases, courts have found that redactions or other remedies may be sufficient.
Similarly, courts have routinely found that corporate parties asserting “commercial interests” cannot overcome the presumptive right of access. In a 2005 federal court case, the defendant, a chain of grocery stores argued that sealing was necessary because disclosure of business records would put the company at a “competitive disadvantage” and harm their future negotiating position with labor unions.The court rejected these arguments, explaining that it would not “speculate” about how the company might be affected “at some point in the future in an unidentified labor dispute.” Similarly, in a case involving Apple, another federal court struck down assertions that records must remain under seal where they “reflect internal Apple processes and deliberations that Apple regards as highly confidential.” The court wrote, “the mere fact that the publication of records may lead to a litigant’s embarrassment or exposure to further litigation is not sufficient to meet the ‘compelling reasons’ standard.”
While courts will sometimes concede to trade secret justifications for withholding documents,even those concerns may be outweighed where the public interest mitigates in favor of disclosure. In a recent case I litigated to access court records involving Facebook’s “friendly fraud” program (aimed at taking advantage of children who were unaware of the charges imposed by platform); the court ordered disclosure of the records, overruling Facebook’s claims that disclosure “would put Facebook at an unfair competitive disadvantage in dealing with its partners and competitors.” The court found that “Facebook provided no specific support for the argument that revenue figures from nearly five years ago would impact current partnerships or provide undue advantage to its competitors” and “[b]y contrast, this information would be of great public interest.”
Relatedly, the Supreme Court has suggested that the right of access may also extend to other nontraditional “institutions,” if the effect of the extension would encourage trust of government among citizens.In Richmond Newspapers, Inc. v. Virginia, the seminal case on access to court records, Chief Justice Warren Burger, writing for the majority, asserted, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” This key statement appears to imply that the right of access, which has been continually expanding over time, could apply to other, nongovernmental institutions, such as technology companies, particularly where those institutions are closely linked to providing government functions.
In determining whether to expand the First Amendment right of access to an untested area, courts today apply the well-known “experience and logic” test. The two-part test asks (1) “whether the place and process have historically been open to the press and general public” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.”If both of these questions are answered in the affirmative, the constitutional right of access applies. The right may be overcome only if denying access is necessary to serve a “compelling government interest” and if the limitation of the public’s right of access is “narrowly tailored to serve” that interest.
Applying this test to technology companies would be admittedly difficult. Most obviously, there is no historical precedent for directly expanding the right of access to institutions outside government. However, several factors lean in favor of such expansion. First, and most important, courts have long underscored that “[h]istory has taught us that secrecy and lack of access to information allows for abuses of power”and that the right of access aptly applies in circumstances of consolidated power. Additionally, the right of access is commonly applied to circumstances where other avenues for accountability are lacking. Therefore the fact that technology companies’ obfuscation around data collection cannot be improved by other regimes like notice-and-choice or even more robust comment procedures leans in favor of expansion. Last, courts have also expanded the right of access to institutions outside the judicial system, such as administrative bodies, particularly those that have a large impact on the public’s rights, similar to technology companies. In considering whether to apply the right to these new sovereigns, we may consider the extent to which these companies exercise unusual influence over the citizenry, have a pronounced history of secrecy, and lack public accountability.
In arguing for this expansion, we may also return to the writing of John Dewey, who, like other American progressives at the turn of the twentieth century, argued that technological transparency was necessary to a healthy democracy.Reflecting on the rapid industrialization taking place in America Dewey argued for more transparency in order to expose how emerging technologies controlled political decisions occurring every day. In his 1899 book School and Society, Dewey wrote how the drastic change from rural to industrial life had obscured many quotidian but elemental processes in everyday life:
Instead of pressing a button and flooding the house with electric light, the whole process of getting illumination was followed in its toilsome length from the killing of the animal and the trying of fat to the making of wicks and dipping of candles. The supply of flour, of lumber, of foods, of building materials, of household furniture, even of metal ware, of nails, hinges, hammers, etc. was produced in the immediate neighborhood, in shops which were constantly open to inspection and often centers of neighborhood congregation. The entire industrial process stood revealed.
While citizens of rural America could easily understand the technologies that underpinned their daily lives, during the Industrial Revolution that knowledge quickly disappeared. Dewey exclaimed, “How many of the employed are today mere appendages to the machines which they operate!”It seems that similar exclamations about the “smart” technology used by government in ways that directly impact our lives and safety could be made in the present day as well.
Though it may be hard to envision courts expanding the right of access to private actors, Dewey foresaw the potential for this a century ago when he argued for holding public and private actors accountable. In Dewey’s later work The Public and Its Problems,he theorized that certain powerful institutions benefited from obfuscation and that, due to the key roles they play in governance, these private elite actors must be checked by some transparency. “Representative government must at least seem to be founded on public interests as they are revealed to public belief,” wrote Dewey. Worried about concerns over propaganda, he continued, “[t]he smoothest road to control of political conduct is by control of opinion.”
As long as interests of pecuniary profit are powerful, and a public has not located and identified itself, those who have this interest will have an unresisted motive for tampering with the springs of political action in all that affects them. Just as in the conduct of industry and exchange generally the technological factor is obscured, deflected and defeated by “business,” so specifically in the management of publicity.
It is not enough, Dewey would seem to argue, to limit the public’s right to know to strictly traditional governmental actors, since government is not the only sector of civil society that can be held responsible for the nation’s actions. For a democracy to stay healthy, powerful private actors—especially corporations—must operate with a degree of transparency.
III. Expanding the Right of Access
Considering the quasi-governmental role of Silicon Valley companies, various state action theories may help extend the right of access to these entities. While select courts have concluded that private companies like Facebook do not qualify as state actors and are not bound by the First Amendment,various theories justify the application of constitutional and statutory transparency rights.
A. The Company Town Theory
The Supreme Court has previously created multiple tests for determining whether extending First Amendment obligations to corporate actors is justified, each aiming to determine whether the corporate actor’s behavior amounts to state action.The four main tests are: (1) the public function test ; (2) the joint action test ; (3) the state compulsion test ; and (4) the governmental nexus test. Ultimately, these tests are all fact-bound inquiries that often conclude that if it walks like a duck and quacks like a duck, it is a duck; the more a corporate action appears to be a state action, the more likely it is one. Ultimately, these tests affirm the same thing, that there is some measure of corporate entanglement that creates a need for democratic accountability. “A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights,” and so the fact that a corporate entity holds title to that space, historically reserved for government, does not diminish its character as a public domain. Applying that rule, the Court has held that a private park operator is subject to the Fourteenth Amendment because a park is municipal in character. But the state action doctrine not only applies to “traditional public forums,” such as streets or parks ; the Court has also extended it to “designated public forums,” or nontraditional spaces that open “channel[s] of communication” and that “share essential attributes of a traditional public forum.”
Many social media companies arguably satisfy multiple of these tests, serving as the modern public parks and public forums in addition to providing multiple other traditional public functions.While no court has ever explicitly held that a social media company is a public actor, the Supreme Court has suggested a willingness to consider this as a viable theory. In Packingham v. North Carolina, a case striking down a North Carolina statute prohibiting registered sex offenders from accessing social networking websites, the Court in dicta equated social media sites to modern-day parks and streets, signaling that these companies take on responsibilities when they host a space of public activity. In that vein, some lower courts have held that social media pages have qualified as “public forums” where government exercises particular control over certain accounts. Today, when 70 percent of Americans access social media sites on a daily basis to engage in behaviors that would have traditionally occurred on our sidewalks, parks, and street corners, it is fair to say that these sites are participating in state action.
This argument is only further compounded by the recent development of many such titans functioning as more than just public forums, expanding into real-life “company towns.”Facebook, Amazon, and Google have all begun building housing, grocery stores, retail districts, and hotels in their respective Silicon Valley cities of Palo Alto, San Jose, and Mountain View as well as other cities across the country. “By 2021, Facebook is scheduled to complete Willow Park, a corporate campus with 1,500 housing units, retail, a hotel, and grassy plazas in Menlo Park, California.” At the same time, these companies are providing multiple government functions on the national level, including defense tools, banking features, and speech forums as well as modes of transit, as previously mentioned. Writing on a blog, Professor Ruthann Robson has recently argued for this position, citing Marsh v. Alabama, the landmark Supreme Court case that found that private companies that provide multiple government functions are bound by First Amendment obligations. Robson’s proposal for “arguments extending the Marsh company-town holding” is increasingly apropos as media companies “perform the full spectrum of municipal powers.”
Lastly, expanding the state action doctrine to these companies would align with the First Amendment’s right of the listeners. As Professor Helen Norton has written, the “law sometimes . . . puts listeners’ interests first in settings where those listeners have less information or power than speakers.”Often described as the listener’s right to receive information, this doctrine is usually raised to support the right of access to media outlets in cases involving newsworthy information. The fundamental idea in such instances is that when space is limited, access becomes paramount. As one court stated: “[W]hat exists of the right of access if it extends only to those who can squeeze through the door?” As scholar RonNell Anderson Jones has written “[a] recognition of [the listener approach] drives the growing movement to consider how listener rights might have distinct legal force.” It permits the government to regulate the speech of comparatively knowledgeable or powerful speakers when that expression frustrates their listeners. Under this approach, certain situations would justify favoring listeners, such as social media users, over speakers, such as social media companies, that engage in noisy and coercive algorithmic speech.
B. Beyond Providing Fora: Controlling the New Corporate Towns’ Governors
The structural directive of the First Amendment also supports expanding the right of access to social media companies.As Justice William Brennan explained, “the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government.” “[S]tructuralist” strategies “limit the underlying powers and capacities” of powerful institutions in contrast to “prophylactic rules” that depend on “fine-tuning expert management.” Expanding the right of access is seemingly a banal solution to those who challenge the efficacy of transparency rights, but in terms of shifting power structures it is a radical move. Instead of behaving with deference to social media companies, this framework introduces disruption which is necessary for accountability and may at least slightly pull back the tide of the Lochner-ization of the First Amendment by redistributing the economic power of knowledge back to the public. In particular, the right of access, if expanded, could bring light to at least three areas of public life where technology companies enshroud information with secrecy anathema to our democractic values.
1. Access to Technology Records Involving Criminal Justice System
Access to information within the criminal justice system has always been viewed “at the core of First Amendment.”For this reason courts have gradually expanded the right beyond criminal trials, to voir dire proceedings, suppression hearings, and due process and entrapment hearings. Today, technology companies play instrumental roles in our criminal justice system, assisting the police, prosecutors, attorneys, and even judges with making crucial decisions that affect a person’s freedom. Judges often directly rely on risk assessment algorithms and other technological tools to decide crucial questions of criminal justice in pretrial detention, bail, sentencing, and parole. While companies making these technological tools claim they facilitate more neutral decision-making, these tools have been shown to be susceptible to various forms of bias. For instance, in 2016, ProPublica released an investigation showing the racial bias within COMPAS, an algorithm used by law enforcement agencies to assess risk. According to ProPublica, African-American defendants were incorrectly flagged as future criminals twice as frequently as non-African-American ones. In circumstances like these, technological tools integrally impact choices in the criminal justice system traditionally left to government actors, leading to the obvious conclusion that courts should expand the right of access to this information. While efforts to access information held by software developers are often met with claims that the information is proprietary or constitutes a protected trade secret, courts have historically countered those claims when they appear spurious.
2. Access to Technology Records Involving Civil Rights and Civil Liberties
Beyond law enforcement, algorithms and other technological tools have been used in decisions over whether to grant or deny a variety of other government benefits and civil rights and civil liberties. For instance, algorithms have been used in rationing healthcare.In one case, a court found that a state’s allotment of Medicaid – based on an algorithm – was so unreliable that it “arbitrarily deprive[d] participants of their property rights and hence violate[d] due process.” Similarly, public school teachers have been evaluated through privately developed software. There, the court wrote, “teachers have no meaningful way to ensure correct calculation of their [evaluation] scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs.” In cases involving due process as well as other rights and liberties, it is uniquely important that the right of access apply to ensure protections such as impartial adjudication as well as judicial review.
3. Access to Technology Records Mirroring Administrative or Judicial Bodies
Similarly, the right of access should also be expanded where technology companies create institutions that reproduce judiciary functions. Traditionally, the right of access has applied to a bounty of legal proceedings, including suppression hearings, bail hearings, and sentencing hearings as well as a plethora of court records such as indictments, motion documents, and criminal cases, among many others.Moreover, this right was eventually expanded to other court-like bodies outside the judicial system, such as the executive branch’s judicial review board proceedings, federal administrative fact-finding hearings, state legislative meetings, city council meetings, and governor's executive travel records. This past year, Facebook announced a “Global Oversight Board,” a Supreme Court–like body that will determine what speech on its platform may be censored. Expanding the right of access to the records and trial-like hearings of this type of judicial body determining core speech rights would appropriately fall in line with the structural demands of the First Amendment.
As companies increase their control over our lives and our society, expanding the right of access is increasingly important. A constitutional guarantee of access to certain records and information held by technology companies would mark a significant step forward in checking the increasing power of these companies over people’s lives and over our democracy as a whole. While the passage of new FOIA-like legislation would also be appropriate,particularly to address the growing number of cases where the government tries to use Exemption 4 (trade secrets or confidential commercial information) to avoid disclosure requirements, this article has aimed to further the debate over how to transform our “black-box society” back into a democratic one. By employing a broader application of the right to access to technology companies we can assure more democratic stability in an institutional infrastructure of increasing asymmetry.
Brief for the Knight Institute et al. as Amici Curiae Supporting the Respondent, Food Marketing Institute v. Argus Leader Media, 588 U.S. __ (2019) (No. 18-481).
Alexander Meiklejohn, The First Amendment Is an Absolute, Sup. Ct. L. Rev. 245, 255–57 (1961).
Thomas I. Emerson, Legal Foundations of the Right to Know, Wash. U. L. Rev. 1, 1–24 (1976) at 1 (citing Letter from James Madison to W. T. Barry, Aug. 4, 1822, in 9 Writings of James Madison 103 (G. Hurst ed. 1910)).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1986) (Brennan, J., concurring).
See, e.g. Metlife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017) (“The right of public access is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch”).
Martha I. Morgan, The Constitutional Right to Know Why, 17 Harv. C.R.–C.L. Rev. 297 (1982); see also S. Rep. No. 1219, 88th Congress, 2nd Session (S. 1666) (introducing [the predecessor of FOIA], Senator Long quoted the words of Madison, who authored the First Amendment: “Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Today the very vastness of our Government and its myriad of agencies makes it difficult for the electorate to obtain that ‘popular information’ of which Madison spoke.”).
Vol. 162 No. 6 H249-H255, (January 11, 2016).
Staff of H. Comm. on Oversight and Gov’t Reform, 114th Cong., FOIA is Broken: A Report iii–iv, 20 (2016). At the time that this article was going to publication the Supreme Court decided in Food Marketing Institute v. Argus Leader Media, 588 U.S. __ (2019) (No. 18-481) that it would expand Exemption 4 making it easier for government to withhold information from federal contractors. While related, this subject requires separate examination from this article.
Jody Freeman, Private Parties, Public Functions and the New Administrative Law, 52 Admin. L. Rev. 813, 822 (2000) (noting the problem of “contracting out” as separate from privatization); Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367 (2003); Martha Minow, Public and Private Partnerships: Accounting for the New Religion: Public Values in an Era of Privatization, 116 Harv. L. Rev. 1229 (2003); Paul Starr, The Meaning of Privatization, 6 Yale L. & Pol’y Rev. 6 (1988); Daniel Guttiman, Public Purpose and Private Service: The Twentieth Century Culture of Contracting Out and the Evolving Law of Diffused Sovereignty, 52 Admin. L. Rev. 859 (2000); see also Rory Van Loo, The Corporation as Courthouse, 33 Yale J. Reg. 547 (2017).
Martha Minow, Public and Private Partnerships: Accounting for the New Religion Symposium: Public Values in an Era of Privatization, 116 Harv. L. Rev. 1229, 1229 (2003).
See Neil Gordon, Contractors and the True Size of Government, Proj. on Gov’t Oversight (Oct. 5, 2017), https://perma.cc/8X38-ZRYJ.
Vera Eidelman, Secret Algorithms Are Deciding Criminal Trials and We’re Not Even Allowed to Test Their Accuracy, ACLU (Sept. 15, 2017), https://www.aclu.org/blog/privacy-technology/surveillance-technologies/secret-algorithms-are-deciding-criminal-trials-and.
Brief for the AI Now Institute et al. as Amici Curiae Supporting the Respondent, Food Marketing Institute v. Argus Leader Media, 588 U.S. __ (2019) (No. 18-481).
See Emily Manna and Jesse Franzblau, Government Inc.: Amazon, Government Security & Secrecy, Open the Gov’t (2019), https://www.openthegovernment.org/wp-
, at 16–7.
Some scholars have started to advocate for an algorithmic transparency; this article, however, is proposing a much broader right of access. See Nicholas Diakopoulos, Algorithmic Accountability Reporting, Tow Ctr. for Digital Journalism (2013), https://academiccommons.columbia.edu/doi/10.7916/D8ZK5TW2; Paul B. de Laat, Big Data and Algorithmic Decision-Making: Can Transparency Restore Accountability?, 47 SIGCAS Comput. Soc. 39 (2017); Robert Brauneis & Ellen Goodman, Algorithmic Transparency for the Smart City, 20 Yale J. L. & Tech. 103 (2018); Vera Eidelman, The First Amendment Case for Public Access to Secret Algorithms Used in Criminal Trials, 34 Ga. St. U. L. Rev. 915 (2018); Sonia K. Katyal, Private Accountability in the Age of Artificial Intelligence, 66 UCLA L. Rev. 54 (2019).
This article relates to a growing body of work that studies how the relationship between government and technology companies affects accountability and transparency. The author thanks Hannah Bloch-Wehba for this list of articles: David S. Levine, The People’s Trade Secrets, 18 Mich. Telecomm. & Tech. L. Rev. 61 (2011); Catherine Crump, Surveillance Policy Making by Procurement, 91 Wash. L. Rev. 1595 (2016); see also Hannah Bloch-Wehba, Exposing Secret Searches, 93 Wash. L. Rev. 145 (2018); Kristen Eichensehr, Public-Private Cybersecurity, 95 Tex. L. Rev. 467 (2017).
Jack Balkin, The First Amendment in the Second Gilded Age, __ Buff. L. Rev. __ (2019, forthcoming).
A small group of scholars has tried to see if it “could be transformed and updated” for contemporary society “in light of its relevance and necessity today.” See Jean Lave and Etienne Wenger, Situated Learning: Legitimate Peripheral Participation (1991), 100–05.
See generally Balkin, supra note 18.
Eidelman, Secret Algorithms Are Deciding Criminal Trials and We’re Not Even Allowed to Test Their Accuracy, supra note 13 (discussing a case where a man’s incarceration was dependent on revealing the trade secret of a social media company’s algorithm).
Federal Trade Commission, Data Brokers: A Call for Transparency and Accountability (2014).
See generally Hannah Bloch-Wehba, Global Platform Governance: Private Power in the Shadow of the State, 72 S.M.U. L. Rev. 27 (2019) (“Online intermediaries—search engines, social media platforms, even e-commerce business—are increasingly required to make critical decisions about free expression, individual privacy, and property rights under domestic law.”); Olivia Solon, Forget Wall Street Silicon Valley Is the New Political Power in Washington, The Guardian, (Sep. 3, 2017), https://www.theguardian.com/technology/2017/sep/03/silicon-valley-politics-lobbying-washington.
For instance, to date, Google has removed nearly 900,000 links, Twitter has suspended thousands of accounts, YouTube has closed dozens of channels, and Facebook has shut down so many profiles it has become regular news. See Mike Masnick, Twitter Suspends Popehat For Writing About Violent Threats He Received From Another Twitter User, Techdirt (Aug. 3, 2017), https://www.techdirt.com/articles/20170803/16341437919/twitter-suspends-popehat-writing-about-violent-threats-he-received-another-twitter-user.shtml; Tim Collins, YouTube Says Its New Moderators “Mistakenly” Shut Down Pro-Gun Conservative Channels While Trying to Block Far-Right Conspiracy Videos, Daily Mail (UK) (March 1, 2018), https://www.dailymail.co.uk/sciencetech/article-5449129/YouTube-moderators-mistakenly-shut-channels.html; William Hughes, YouTube Shuts Down One of Its Most Popular Channels Amid Concerns About Kids’ Content, AVClub.com (Nov. 17, 2017), https://www.avclub.com/youtube-shuts-down-one-of-its-most-popular-channels-ami-1820564962; Mike Masnick, Thank Joe Lieberman for YouTube Accidentally Censoring Key Syrian Watchdog’s YouTube Channel, Techdirt (Jan 8, 2013) https://www.techdirt.com/articles/20130107/17051021601/thank-joe-lieberman-youtube-accidentally-censoring-key-syrian-watchdogs-youtube-channel.shtml; Kyle Cheney and Ashley Gold, Facebook Suspends ”"Inauthentic” Accounts, Sees Russia Link, Politico (July 31, 2018), https://www.politico.com/story/2018/07/31/facebook-suspends-inauthentic-propaganda-accounts-752615.
Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1599 (2018).
Jack Balkin, Old School/New School Speech Regulation, 127 Harv. L. Rev. 2296, 2304 (2014) (“In the second decade of the twenty-first century, the most powerful media companies are platforms like Google and Facebook”).
Jack Balkin, Information Fiduciaries and the First Amendment, 49 U.C. Davis L. Rev. 1183 (2016).
David Streitfeld, Amazon Hits $1,000,000,000,000 in Value, Following Apple, N.Y. Times (Sept. 4, 2018), https://www.nytimes.com/2018/09/04/technology/amazon-stock-price-1-trillion-value.html; Olivia LaVecchia and Stacy Mitchell, Amazon’s Stranglehold: How the Company’s Tightening Grip Is Stifling Competition, Eroding Jobs, and Threatening Communities, Inst. for Loc. Self-Reliance 10, (Nov. 2016), http://ilsr.org/wp-content/uploads/2016/11/ILSR_AmazonReport_final.pdf [http://perma.cc/A4ND-2NDJ].
Nick Statt and James Vincent, Google Pledges Not to Develop AI Weapons, But Says It Will Still Work with the Military, The Verge (June 7, 2018), https://www.theverge.com/2018/6/7/17439310/google-ai-ethics-principles-warfare-weapons-military-project-maven; Andrew J. Hawkins, This Deep Dive into Google Maps Is Fascinating, The Verge (Dec. 24, 2017), https://www.theverge.com/2017/12/24/16801334/google-maps-justin-obeirne-cartographer-apple-waymo.
See generally Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (2015); Aziz Z. Huq, Racial Equity in Algorithmic Criminal Justice, 68 Duke L. J. 1045 (2019); Danielle Citron, Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008); Joy Buolamwini & Timnit Gebru, Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification, 81 Proceedings of Machine Learning Research 1 (2018); Elizabeth Dwoskin, Amazon Is Selling Facial Recognition to Law Enforcement—For a Fistful of Dollars, Wash. Post (May 22, 2018), https://perma.cc/B5ST-C73B; Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police and Punish the Poor (2019).
Alex Abdo, Facebook Is Shaping Public Discourse. We Need to Understand How, The Guardian (Sept. 15, 2018), https://www.theguardian.com/commentisfree/2018/sep/15/facebook-twitter-social-media-public-discourse.
As Klonick writes, “private online platforms have an increasingly essential role in free speech and participation in democratic culture.” Klonick, The New Governors, supra note 25. Unlike news organizations, social media companies escape liability for the material published on them because of Section 230 of the Telecommunications Act of 1996, which creates immunity for offensive content hosted by providers by distinguishing it as the speech of the user. This lack of accountability cannot be understated, Balkin explains: “An early version of Google or Facebook might not have survived a series of defamation lawsuits if either had been treated as the publisher of the countless links, blogs, posts, comments, and updates that appear on their facilities.” Balkin, Old School/New School Speech Regulation, supra note 26. In addition to Section 230, Section 512 of the Digital Millennium Copyright Act of 1998 also offers a safe harbor for these companies. 47 U.S.C. 230.
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.” John Perry Barlow, A Declaration of the Independence of Cyberspace (1996), https://www.eff.org/cyberspace-independence.
Jeffrey Sachs, Corporatocracy is Replacing Democracy, Economist’s View (Oct. 3, 2011), https://economistsview.typepad.com/economistsview/2011/10/sachs-corporatocracy-is-replacing-democracy.html; David Kirkpatrick, The Facebook Effect: The Inside Story of the Company That Is Connecting the World 254 (2010) (stating that Mark Zuckerberg said, in his own words: “In a lot of ways Facebook is more like a government than a traditional company. We have this large community of people, and more than other technology companies we’re really setting policies.”)
Kashmir Hill, The House That Spied On Me, Gizmodo, (February 7, 2018), https://gizmodo.com/the-house-that-spied-on-me-1822429852 (“If you have a smart home, it’s open house on your data. . . . What our experiment told us is that all the connected devices constantly phone home to their manufacturers. You won’t be aware these conversations are happening unless you’re technically savvy and monitoring your router like we did. And even if you are, because the conversations are usually encrypted, you won’t be able to see what your belongings are saying. When you buy a smart device, it doesn’t just belong to you; you share custody with the company that made it.”)
Matt Cagle, Amazon Teams Up with Law Enforcement to Deploy Dangerous New Face Recognition Technology, ACLU (May 22, 2018), https://www.aclunc.org/blog/amazon-teams-law-enforcement-deploy-dangerous-new-face-recognition-technology.
The Age Gap in Religion Around the World, Pew Res. Ctr. (June 13, 2018), https://www.pewforum.org/2018/06/13/young-adults-around-the-world-are-less-religious-by-several-measures/; Religion, Gallup (2018), https://news.gallup.com/poll/1690/religion.aspx.
Shaoke Zhang et al., Social Identity in Facebook Community Life, 2 Int’l J. Virtual Communities & Soc. Networking 66 (investigating "social identity, a key construct in traditional community life, in an online community based on a social network website, Facebook”).
Emily Dreyfuss, Security News This Week: Palantir Manual Shows How Law Enforcement Tracks Families, Wired (July 13, 2019), https://www.wired.com/story/palantir-surveillance-apple-watch-security-roundup/.
See Amy Bushatz, Some Veterans Still Can’t Apply for New ID Card, Military.com (Apr. 2, 2018), https://perma.cc/BL8R-NFBM; see also Dep’t of Veterans Affairs, Press Release (Dec. 7, 2016), https://perma.cc/L68Z-8Y5E.
Pasquale, The Black Box Society, supra note 30, at 3–4.
Will Carless and Michael Corey, To Protect and Slur: Inside Hate Groups on Facebook, Police Officers Trade Racist Memes, Conspiracy Theories and Islamophobia, Reveal (June 14, 2019), https://www.revealnews.org/article/inside-hate-groups-on-facebook-police-officers-trade-racist-memes-conspiracy-theories-and-islamophobia/; Ginger Thompson, Revelations About a Secret Facebook Group Spawn Investigation of 70 Current and Former Border Patrol Employees, ProPublica (July 15, 2019), https://www.propublica.org/article/revelations-about-a-secret-facebook-group-spawn-investigation-of-70-current-and-former-border-patrol-employees.
Susan Lee, 5 Transportation Startups Making Waves, Icons of Infrastructure, https://iconsofinfrastructure.com/5-transportation-startups-making-waves/.
David Henry and Anna Irrera, The 5 Largest US Banks Are Launching a Venmo “Killer,” Business Insider (June 12, 2017), https://www.businessinsider.com/venmo-killer-app-2017-6.
Jonathan Zittrain, Facebook Could Decide an Election Without Anyone Ever Finding Out, The New Republic (June 1, 2014), https://newrepublic.com/article/117878/information-fiduciary-solution-facebook-digital-gerrymandering.
Amazon’s Project Maven, in particular, has garnered significant criticism. See Lara Seligman, Why the Military Must Learn to Love Silicon Valley, Foreign Pol’y (Sept. 12, 2018), https://foreignpolicy.com/2018/09/12/why-the-military-must-learn-to-love-silicon-valley-pentagon-google-amazon/; Jill Aitoro, Clash of Cultures? Maybe. But Google’s Also Ditching Maven Because Its Employees Owned the Message, DefenseNews (June 6, 2018), https://www.defensenews.com/opinion/2018/06/06/no-surprise-google-bids-maven-farewell/.
Most, if not all, of these technologies are made by private companies and are sold to the government. See Community Control over Police Surveillance: Technology 101, ACLU, https://www.aclu.org/report/community-control-over-police-surveillance-technology-101.
Shahid Buttar, Chicago Should Reject a Proposal for Private-Sector Face Surveillance, Elec. Frontier Found. (Oct. 9, 2018), https://www.eff.org/deeplinks/2018/10/chicago-should-reject-proposal-private-sector-face-survey; Benjamin Conarck, How an Accused Drug Dealer Revealed ISO’s Facial Recognition Network, Jacksonville.com (Nov. 11, 2016), https://www.jacksonville.com/public-safety/2016-11-11/how-accused-drug-dealer-revealed-jso-s-facial-recognition-network.
Kaveh Waddell, How License-Plate Readers Have Helped Police and Lenders Target the Poor, The Atlantic (Apr. 22, 2016), https://www.theatlantic.com/technology/archive/2016/04/how-license-plate-readers-have-helped-police-and-lenders-target-the-poor/479436/; Street-Level Surveillance: Automated License Plate Readers (ALPRs), Elec. Frontier Found., https://www.eff.org/pages/automated-license-plate-readers-alpr; Brian Shockley, Vigilant Solutions Enables Over 217,000 Law Enforcement LPR Data Sharing Relationships, Vigilant Solutions (Oct. 23, 2015), https://www.vigilantsolutions.com/vigilant_solutions_enables_217000_law_enforcement_data_sharing_relationships/.
Street-Level Surveillance: Body-Worn Cameras, Elec. Frontier Found., https://www.eff.org/pages/body-worn-cameras; The Future of Policing: Body Cameras, Video Storage, and Data Management, Amazon: AWS Gov’t, Edu., & Nonprofits Blog (May 27, 2016), https://aws.amazon.com/blogs/publicsector/the-future-of-policing-body-cameras-video-storage-and-data-management/.
Frank Konkel, CIA Official: “Cloud Has Been a Godsend,” Nextgov.com (Aug. 12, 2016), https://www.nextgov.com/it-modernization/2016/08/cia-official-cloud-has-been-godsend/130716/; AWS Signs CJIS Agreement with the State of Colorado, Amazon: AWS Gov’t, Edu.,& Nonprofits Blog (June 17, 2016), https://aws.amazon.com/blogs/publicsector/aws-signs-cjis-agreement-with-the-state-of-colorado/; Fighting Crime with the Cloud: Law Enforcement + AWS, Amazon: AWS Gov’t, Edu., & Nonprofits Blog (Dec. 22, 2015), https://aws.amazon.com/blogs/publicsector/cjis/.
Kyle Wiggers, MIT Researchers: Amazon’s Rekognition Shows Gender and Ethnic Bias, VentureBeat.com, (Jan. 24, 2019), https://venturebeat.com/2019/01/24/amazon-rekognition-bias-mit/; Inioluwa Deborah Raji & Joy Buolamwini, Actionable Auditing: Investigating the Impact of Publicly Naming Biased Performance Results of Commercial AI Products, Assoc. for the Advancement of Artificial Intelligence (2019), https://perma.cc/7XJ7-L77L.
Caroline Haskins, 300 Californian Cities Secretly Have Access to Palantir, VICE (July 12, 2019), https://www.vice.com/en_us/article/neapqg/300-californian-cities-secretly-have-access-to-palantir.
PDEvidence Helps Solve Crimes Faster Using Automated AWS-Based System, Amazon: AWS, https://aws.amazon.com/solutions/case-studies/pdevidence/.
AWS Partner Story: Richmond Police Department, Amazon: AWS, https://aws.amazon.com/partners/success/richmond-police-dept/.
Sean Gallagher, Facebook’s Quest for Fleet of Solar-Powered Internet Drones Grounded Forever, Ars Technica (June 27, 2018), https://arstechnica.com/information-technology/2018/06/facebook-drops-solar-powered-internet-drone-business-cans-aquila/; Eric Adams, The Aviation Industry Finally Discovers Silicon Valley, Wired (April 6, 2017), https://www.wired.com/2017/04/aviation-industry-finally-discovers-silicon-valley/.
Rohan Grey, Facebook Wants Its Own Currency. That Should Scare Us All, The Nation (July 22, 2019), https://www.thenation.com/article/facebook-libra-currency-digital/.
Michael Barbaro, Listen to “The Daily”: Congress vs. Mark Zuckerberg, N.Y. Times (April 11, 2018), https://www.nytimes.com/2018/04/11/podcasts/the-daily/mark-zuckerberg-facebook-senate-hearing.html.
Tim Adams, Job Hunting Is a Matter of Big Data, Not How You Perform at an Interview, The Guardian (May 10, 2014), http://www.theguardian.com/ technology/2014/may/10/job-hunting-big-data-interview-algorithms-employees (describing “[t]he advance of algorithms into recruitment and ‘talent management’”); Rachel Emma Silverman and Nikki Waller, The Algorithm That Tells the Boss Who Might Quit, Wall St. J. (Mar. 13, 2015), http://www.wsj.com/articles/the-algorithm-that-tells-theboss-who-might-quit-1426287935 (describing use of algorithms by Wal-Mart and Credit Suisse to decide which employees are likely to leave or stay); Natasha Singer, Whether Working or Job Seeking, the Algorithm Is Watching, N.Y. Times (Dec. 28, 2014), http://bits.blogs.nytimes.com/2014/12/28/whether-working-or-jobseeking-the-algorithm-is-watching/ (discussing companies’ use of algorithms to monitor and rank both employees and job seekers).
Jonathan Vanian, Why Data Is the New Oil, Fortune (July 12, 2016), https://fortune.com/2016/07/11/data-oil-brainstorm-tech/amp/ (stating that control over our data is incentivized by monetary gains).
Eidelman, Secret Algorithms Are Deciding Criminal Trials and We’re Not Even Allowed to Test Their Accuracy, supra note 13.
Abdo, supra note 31. These platforms have become the “substrate of our social interactions, the means by which human relationships are formed and maintained.”
Ben Brody and Alyza Sebenius, Trump’s Top Trade Adviser Meets with Silicon Valley Leaders, Bloomberg (Dec. 6, 2018), https://www.bloomberg.com/news/articles/2018-12-06/trump-s-top-trade-adviser-meets-silicon-valley-amid-china-rift.
Eliana Johnson, Donald Trump’s “Shadow President” in Silicon Valley, Politico (Feb. 26, 2017), https://www.politico.com/story/2017/02/donald-trumps-shadow-president-in-silicon-valley-235372.
Gary Younge, Who’s in Control—Nation States or Global Corporations?, The Guardian (June 2, 2014), https://www.theguardian.com/commentisfree/2014/jun/02/control-nation-states-corporations-autonomy-neoliberalism; Bloch-Wehba, Global Platform Governance, supra note 23, at 65 (“But falling back on the First Amendment as the appropriate legal standard essentially doubles down on American unilateralism online”). However, while “European critics have long charged that the internet generally, and American tech companies in particular, ‘export’ First Amendment values by disseminating speech that is legal here but illegal elsewhere,” scholar Daphne Keller has enumerated how “the EU finds itself in a position to export its own preferred balance between speech and other values, such as privacy—whether through direct legal enforcement, as in the recently enacted General Data Protection Regulation, or soft power.” Keller, Internet Platforms, Observations on Speech, Danger and Money, Hoover Inst.: Aegis Series Paper No. 1807 (2018), https://cyberlaw.stanford.edu/files/publication/files/381732092-internet-platforms-observations-on-speech-danger-and-money.pdf. Perhaps the best example goes as far back as 2010, when Google shut down its search engine in China, creating an international incident. A New Approach to China: An Update, Google: Official Blog (March 22, 2010), https://googleblog.blogspot.com/2010/03/new-approach-to-china-update.html.
EU Internet Forum: Bringing Together Governments, Europol and Technology Companies to Counter Terrorist Content and Hate Speech Online, European Comm’n (Dec. 3, 2015), http://europa.eu/rapid/press-release_IP-15-6243_en.htm.
Paul Blumenthal, Big Tech Companies Are So Powerful That a Nation Sent an Ambassador to Them, Huffington Post (June 23, 2018), https://www.huffpost.com/entry/silicon-valley-ambassador-nations_n_5b2aed12e4b00295f158ef8f.
Casper Klynge, Why Silicon Valley Demands Diplomats, Techonomy (Jan. 22, 2019), https://techonomy.com/2019/01/silicon-valley-demands-diplomats/.
Edward Lee, Recognizing Rights in Real Time: The Role of Google in the EU Right to Be Forgotten, U.C. Davis L. Rev. (2015).
Jody Freeman, The Private Role in Public Governance N.Y.U. L. Rev. 543, 575–576 (2000) (“many scholars have argued, that in certain contexts, private actors ought to submit to oversight by agencies, courts, and the legislature, and to be constrained by the Constitution in the same manner as traditional public agencies”).
Victoria D. Baranetsky, Social Media and the Internet: A Story of Privatization, 35 Pace L. Rev. 304 (2014).
Jack M. Balkin & Jonathan Zittrain, A Grand Bargain to Make Tech Companies Trustworthy, The Atlantic (Oct. 3, 2016), https://www.theatlantic.com/technology/archive/2016/10/information-fiduciary/502346.
Balkin, Information Fiduciaries, supra note 27, at 1230 (“We have a reasonable expectation, in other words, that people and organizations who owe duties of trust and confidence to us will not betray us. Indeed, the law creates and recognizes relationships of trust and confidence precisely because it wants people to have reasonable expectations of privacy in certain relationships. If I am right that new digital online service providers may be new kinds of information fiduciaries, then we should have reasonable expectations of privacy in at least some of the information about ourselves that we share with them. The reasons why this information is not public discourse for purposes of the First Amendment also provide reasons why we should have a reasonable expectation of privacy for purposes of the Fourth Amendment.”).
See generally, e.g., Lina M. Khan, The Separation of Platforms and Commerce, 119 Colum. L. Rev. 973 (2019); Frank Pasquale, Privacy, Antitrust, and Power, 20 Geo. Mason L. Rev. 1009 (2013); K. Sabeel Rahman, Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities, 2 Geo. L. Tech. Rev. 234 (2018).
See generally Neil Richards and Woodrow Hartzog, Taking Trust Seriously in Privacy Law, 19 Stan. Tech. L. Rev. 431, 462 (2016).
While tech giants assert unparalleled control over our discourse, the power of these companies reaches beyond the suppression of speech and into the shaping of global mores and laws, as previously discussed. Jack Balkin writes of their greater impact: “Companies are increasingly using sophisticated algorithms and forms of artificial intelligence to make decisions about people in areas ranging from advertising to employment to policing to credit.” Balkin, Information Fiduciaries, supra note 27, at 1232.
“That is why the analysis I have offered in this essay can only take us so far. The concept of information fiduciaries presented here focuses on the violations of special relationships between companies and the people whose information they collect, collate, and use. . . . But the Algorithmic Society, companies will purchase and use lots of data that is not so encumbered, and they will use it to affect the lives of countless people wo are not their clients or end-users.” Balkin, Information Fiduciaries, supra note 27, at 1233.
In a visualization created this year by the AI Now Institute, Kate Crawford depicts the onslaught of data breaches and company deception using examples from Facebook’s Cambridge Analytica, Amazon’s Rekognition, and Google’s Maven. These scandals make clear the real-world incentives of these companies are often not to ensure the public good but to make profit. Unlike doctors or lawyers, who take oaths and have ethical duties—information companies make no such promises and operate in a culture of secrecy, making accountability difficult. Sarah C. Haan, Facebook and the Identity Business, ConcurringOpinions.com (Sept. 20, 2018), https://concurringopinions.com/archives/2018/09/fan-200-first-amendment-news-sarah-c-haan-facebook-and-the-identity-business.html; see also Pasquale, The Black Box Society, supra note 30.
Richards and Hartzog, supra note 75.
In his 2018 congressional testimony, Facebook CEO Mark Zuckerberg revealed that Facebook’s technology is not only undocumented and undisclosed but largely not understood. Drew Harwell, AI Will Solve Facebook’s Most Vexing Problems, Mark Zuckerberg Says. Just Don’t Ask When or How, Wash. Post (April 11, 2018), https://www.washingtonpost.com/news/the-switch/wp/2018/04/11/ai-will-solve-facebooks-most-vexing-problems-mark-zuckerberg-says-just-dont-ask-when-or-how/. Similarly, a recent study at the University of Seattle revealed confusion in Twitter and Facebook’s procedures and their impacts. Caitlin Carlson and Hayley Rousselle, Report and Repeat: Investigating Facebook’s Hate Speech Removal Process (April 1, 2018) (unpublished article) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232325).
Lina M. Khan and David Pozen, A Skeptical View of Information Fiduciaries, Harv. L. Rev. (forthcoming 2019).
Oliver Wendell Holmes similarly stated that “every citizen . . . to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392 (1884).
David S. Ardia, Court Transparency and the First Amendment, 38 Card. L. Rev. 835, 902 (2017).
Frederick Schauer, Transparency in Three Dimensions, 2011 U. Ill. L. Rev. 1339, 1356 (2011).
Robert Post, Democracy, Expertise, and Freedom: A First Amendment Jurisprudence for the Modern State 19–20, 33 (2012).
Vincent Blasi, The Checking Value in First Amendment Theory, 2 Am. B. Found. Res. J. 521, 542 (1977).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566–67 (1980) (quotations and citation omitted) (stating it has roots in the “days before the Norman Conquest”).
Daniel Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137, 1153 (2002) (citing Nowack v. Fuller, 219 N.W. 749, 750–51 (Mich. 1928)).
Id. (citing Harold L. Cross, The People’s Right to Know 135 (1953).
See Cross, supra note 91, at 26.
Solove, supra note 89.
Id. at 1154.
435 U.S. 589 (1978).
In 1978, in Nixon v. Warner Communications, Inc., the Supreme Court wrote that it “is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).
In a recent ruling by the U.S. Court of Appeals for the Second Circuit, the court ordered the immediate unsealing of nearly 2,000 pages of records in the case against Florida billionaire Jeffrey Epstein (prior to his death) despite the privacy ramifications of disclosing the documents. See Brown v. Maxwell, No. 18-2868, at 5, 10 (2d. Cir 2019) (“We recognize the potential damage to privacy and reputation that may accompany public disclosure of hard‐fought, sensitive litigation”); see also Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982) (permitting the right of access to records in a rape case involving minor victims); Press-Enterprise Co. v. Superior Ct., 464 U.S. 501 (1984) (permitting access to the capital trial of a defendant charged with the rape-murder of a teenage girl).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570–72, 592 (1986) (Brennan, J., concurring) (noting that “public access to court proceedings is one of the numerous ‘checks and balances’ of our system”).
California ex rel. Lockyer v. Safeway, 355 F. Supp. 2d 1111, 1121 (C.D. Cal. 2005).
Id. at 1117.
Opperman v. Path, Inc., 2016 U.S. Dist. LEXIS 17222, at 23 (N.D. Cal. Feb. 11, 2016).
Id. at 24.
See generally Rebecca Wexler, Life Liberty and Trade Secrets, 70 Stan. L. Rev. (2018), https://www.stanfordlawreview.org/print/article/life-liberty-and-trade-secrets/.
See generally Eidelman, Secret Algorithms Are Deciding Criminal Trials and We’re Not Even Allowed to Test Their Accuracy, supra note 13.
Bohannon, et. al v. Facebook, Inc., 12-cv-01894 (N.D. Cal. Jan. 14, 2019) (Freeman, J.).
In this case, the Court affirmed the constitutional right of access to criminal trial public trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570–572 (1986) (stating that “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing”).
Id. at 572.
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986).
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982). In addition to this First Amendment right, the common law right also extends to all judicial documents and records.
Kelli Sager and Selina MacLaren, First Amendment Rights of Access, Concurring Opinions (Sept. 20, 2018), https://concurringopinions.com/archives/2018/09/fan-200-first-amendment-news-kelli-l-sager-selina-maclaren-first-amendment-rights-of-access.html.
Katherine J. Strandburg, Free Fall: The Online Market’s Consumer Preference Disconnect, 2013(5) U. Chicago Legal Forum 95, 165 (2013).
Louis Brandeis, Other People’s Money and How the Bankers Use It.
John Dewey, Democracy and Educational Administration, School and Society 45 (April 3, 1937), 457–462.
John Dewey, The School and Society 7 (1900).
Id. at 23.
See supra section I.
John Dewey, The Public and Its Problems 37 (1927).
Id. at 181.
Id. at 182.
Nyabwa v. Facebook, No. 2:17-CV-24, 2018 WL 585467, at *1 (S.D. Tex. Jan. 26, 2018) (stating “because the First Amendment governs only governmental restrictions on speech, Nyabwa has not stated a cause of action against Facebook”); Shulman v. Facebook.com, No. CV 17-764 (JMV), 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017) (stating “the Court also notes that efforts to apply the First Amendment to Facebook . . . have consistently failed”).
See generally Julie K. Brown, Less Is More: Decluttering the State Action Doctrine, 73 Missouri L. Rev. 561 (2008).
Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (stating “[T]he private entity exercise powers which are traditionally exclusively reserved to the state, such as holding elections or eminent domain”); see also S.F. Arts & Athletics v. U.S. Olympic Comm., 483 U.S. 522, 544 (1987) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)).
This test requires a high level of mutual interdependence, including “mutually conferred benefits, a close fiscal relationship, and a lessor/lessee relationship.” Gregory D. Malaska, American Manufacturers Mutual Insurance Company v. Sullivan: “Meta-Analysis” as a Told to Navigate through the Supreme Court’s “State Action” Maze, 17 J. Contemp. Health L. Pol’y 619, 651 (2001).
This occurs when the state imposes incredible influence over the private actor without the actor’s own choice in the matter. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 166 (1978); Jackson, 419 U.S. at 357; Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1965)).
This occurs when there are several factors showing that there is an inextricable nexus between the public and private actors, such as: (1) state regulation; (2) public funding of a private party; (3) private use of public property; (4) the presence of public officials in leadership of private entity; (5) public approval of private activity; and (6) utilization of public services. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
Packingham v. North Carolina, 582 U.S. __ (2017).
Evans v. Newton, 382 U.S. 296, 299 (1966) (explaining that the Court determined that a formally “private” action may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action).
Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939). (Justice Roberts wrote in a concurrence: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”).
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).
Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).
Lee v. Katz, 276 F.3d 550 (9th Cir. 2002) (holding that regulating speech in a public forum qualified as a “public function” traditionally within the exclusive domain of the state, so a non-profit qualified as a “state actor”).
Two recent cases have held that government officials’ social media accounts amount to public fora. See Knight First Amendment Institute at Columbia v. Trump, 302 F.Supp. 3d 541 (2018); Davison v. Randall, 2019 WL 114012 (4th Cir. Jan. 7, 2019).
Aaron Smith & Monica Anderson, Social Media Use in 2018, Pew Res. Ctr. (March 1, 2018), https://www.pewinternet.org/2018/03/01/social-media-use-in-2018/ (according to the Pew Center, the most frequented social media sites are YouTube (73%), Facebook (68%), Instagram (35%), Pinterest (29%), Snapchat (27%), LinkedIn (25%), Twitter (24%), and WhatsApp (33%)).
Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 2002) (stating companies that contribute to “elections,” “govern[ing]” and “serv[ing] as an international peacekeeping force” are company towns); George Avalaos, Google Village in Downtown San Jose Would Connect Local Neighborhoods, Company Vows, Mercury News (May 23, 2018), https://www.mercurynews.com/2018/05/23/google-village-in-downtown-san-jose-would-connect-local-neighborhoods-company-vows/; Leanna Garfield, Facebook and Amazon Are So Big They’re Creating Their Own Company Towns—Here’s the 200-Year Evolution, Business Insider, (Mar. 26, 2018), https://www.businessinsider.com/company-town-history-facebook-2017-9.
Douglas MacMillan, Elot Brown and Peter Grant, Google Plans Large New Yok City Expansion, Wall St. J., (Nov. 7, 2018), https://www.wsj.com/articles/google-plans-large-new-york-city-expansion-1541636579.
Garfield, supra note 138.
Ruthann Robson, The Cyber Company Town, ConcurringOpinions.com (Sept. 28, 2018), https://concurringopinions.com/archives/2018/09/fan-200-first-amendment-news-ruthann-robson-the-cyber-company-town.html.
Id. (stating it is unclear “whether the multi-billion-dollar companies that presently host our public squares should be subject to constitutional constraints in the same manner as the ‘company towns’ of the last century, especially if the consequences of doing so afford us less free speech and make us less informed as we navigate our cyber sidewalks”).
Lloyd Corp., Ldt v. Tanner, 407 U.S. 551, 569 (1972).
Helen Norton, Powerful Speakers and Their Listeners, 90 U. Colo. L. Rev. 441 (2019).
RonNell Andersen Jones, Press Speakers and the First Amendment Rights of Listeners, 90 Univ. of Co. L. Rev. 499 (2019).
United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994).
Jones, supra note 145 at 503; see also Dana R. Wagner, The First Amendment and the Right to Hear, 108 YALE L.J. 669, 673 (1998).
Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, 101 Minn L. Rev. 31, 37 (2016) (noting that First Amendment theory “sometimes support[s] a listener-centered approach for First Amendment purposes when . . . the listener has less information, expertise, or power than the speaker”).
Norton, Powerful Speakers and Their Listeners, supra note 144 at 457 (stating that “a listener-centered perspective still leaves those speakers free to make a wide range of expressive choices: it does not force speakers to mouth opinions that they don’t hold, nor does it prohibit them from sharing their opinions or additional accurate information of their choosing in non-coercive settings.”).
As Justice Brennan wrote: “This right was a political liberty implied not by the Constitution’s textual guarantees, but rather by the political structure of the Constitution in general.” Eugene Cerruti, Dancing in a Courthouse, 29 Univ. of Rich. L. Rev. 237 (1995).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980).
K. Sabeel Rahman, Democracy Against Domination 1118 (2016).
Eugene Cerruti, Dancing in a Courthouse, 29 Univ. of Rich. L. Rev. 237 (1995).
See Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1959–64 (2018); Id. at 2007 (reviewing and explaining that this Lochner-ization refers to “a First Amendment jurisprudence that disables redistributive regulation and exacerbates socioeconomic inequality”).
See Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 587 (1976); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice”).
See Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 13 (1986) (Press-Enterprise II); Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 509 (1984) (Press-Enterprise I); see also Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 606–07 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980); see also Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (1989) (finding that “affidavits for search warrants are judicial records”).
Nate Berg, Predicting Crime, LAPD-Style, The Guardian (June 25, 2014, 5:19 EDT), http://www.theguardian.com/cities/2014/jun/25/predicting-crime-lapd-los-angelespolice-data-analysis-algorithm-minority-report (discussing law enforcement’s use of AI to identify areas of crime).
Erin Harbison, Understanding “Risk Assessment” Tools, Bench & B. Minn. (Aug. 3, 2018), https://perma.cc/7W7N-75CX.
See Christopher Slobogin, Principles of Risk Assessment: Sentencing and Policing, 15 Ohio St. J. Crim. L. 583 (2018); see, e.g., Natalie Ram, Innovating Criminal Justice, 112 Nw. U. L. Rev. 659 (2018); Megan T. Stevenson and Christopher Slobogin, Algorithmic Risk Assessments and the Double-Edged Sword of Youth, 96 Wash. U. L. Rev. 681 (2018).
Julia Angwin et al., Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks, ProPublica (May 23, 2016), https://perma.cc/92WP-EXDJ; See, e.g., Bernard E. Harcourt, Risk as a Proxy for Race, 27 Fed. Sent’g Rep. 237 (2015).
See Julia Angwin et al., Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks, ProPublica (May 23, 2016), https://perma.cc/92WP-EXDJ.
See United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997) (stating that “[a] new procedure that substituted for an older one would presumably be evaluated by the tradition of access to the older procedure”); see also United States v. Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998) (noting that the experience prong may be satisfied by establishing a history of access to information “reasonably analogous” to the information sought).
See Brief Amici Curiae of the Reporters Committee for Freedom of the Press and 36 Media Organizations in Support of Respondent, Food Marketing Institute v. Argus Leader Media, No. 18-481 22–23 (2019); see also Eidelman, Secret Algorithms Are Deciding Criminal Trials and We’re Not Even Allowed to Test Their Accuracy, supra note 13.
Claims of “trade secrecy” and commercial harm have often been called out by courts as duplicitous covers for negative publicity. As the Central District of California noted, it “is not the duty of federal courts to accommodate the public relations interests of litigants.” Petroleum Prod. Antitrust Litig., 101 F.R.D. 34, 40 (C.D. Cal. 1984). See also Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (interest of corporation or its executives “in protecting their vanity or their commercial self-interest does not qualify as grounds . . . for keeping the information under seal”); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983) (“[s]imply showing that the information would harm the company’s reputation is not sufficient to overcome the strong . . . presumption in favor of public access to court proceedings and records”); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir. 1984) (presumption of access “not overcome by the proprietary interest of present stockholders in not losing stock value or the interest of upper-level management in escaping embarrassment”).
See K.W. ex rel. D.W. v. Armstrong, 180 F. Supp. 3d 703 (D. Idaho 2016); see also Ark. Dep’t of Human Servs. v. Ledgerwood, 530 S.W.3d 336 (Ark. 2017) (stating that the algorithmic determination of attendant care hours resulted in irreparable harm).
K.W. ex rel. D.W. v. Armstrong, 180 F. Supp. 3d 703, 718 (D. Idaho 2016).
See Houston Fed’n of Teachers, Local 2415 v. Houston Indep. Sch. Dist., 251 F. Supp. 3d 1168, 1171 (S.D. Tex. 2017).
Id. at 1180.
Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms, 55 B.C. L. Rev. 93 (2014); Danielle Citron, Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008).
Eugene Cerruti, Dancing in a Courthouse, 29 Univ. of Rich. L. Rev. 237, 266–268 (1995).
NIFLA v. Becerra, 138 S.Ct. 2361 (2018). The recent decision in NIFLA v. Becerra makes disclosure laws more difficult. In Becerra, the justices ruled that California can’t force pregnancy centers—which often pretend to provide abortion services, but in fact discourage the procedure—to disclose information to women, regardless of whether those facilities are licensed medical providers. At issue in the case was the 2015 California FACT Act, which passed after legislators grew concerned that pregnancy centers were sharing false information and steering women away from services, prompting the passage of a law requiring that the centers post truthful information. However, the Court relied on another Supreme Court case, Reed v. Town of Gilbert, decided just several years prior, which vastly expanded the idea of content-based regulation. The justices understood California’s disclosure laws to amount to prohibited “content-based regulation of speech” because “[b]y compelling individuals to speak a particular message, such notices ‘alte[r] the content of [their] speech.’” Reed v. Town of Gilbert, AZ, 576 U.S. ___ (2015)).
Exemption 4, barring disclosure of corporate information, has been used by Silicon Valley companies to bar disclosure under FOIA of diversity reports, OSHA injury reports, and databases holding government information, in FOIA cases litigated by the author. Close to the publication of this paper, the Supreme Court recently decided Argus Leader, a case which will only further make government information in the hands of Silicon Valley difficult to access under FOIA. See, e.g., Will Evans, We Sued the Government for Silicon Valley Diversity Data, Reveal (Apr. 26, 2018) https://www.revealnews.org/blog/we-sued-the-government-for-silicon-valley-diversity-data/.
Victoria Baranetsky is general counsel at The Center for Investigative Reporting