Allen Farrington writes about
a rather odd belief about where, precisely, the power lies in this relationship—that Twitter, Facebook, and the like have amassed enormous power, are throwing it about wantonly, spiralling out of control, and must be constrained by the wise and impartial. A simpler thesis would be that the reason so much of “Big Tech” spontaneously coordinated as it did was a political calculus aimed at avoiding onerous regulation by currying favour with the incoming administration. Journalist Michael Tracey summarised the essential misdiagnosis of power like this: “The new corporate authoritarian liberal-left monoculture is going to be absolutely ruthless. And in 12 days it is merging with the state. This [is] only the beginning. The real ‘threat’ at this point is crazed oligarchs + politicians using the ‘crisis’ to consolidate power.”
You mean that the system which was almost accidentally enabling resistance to conventional political power while collecting vast amounts of advertising money suddenly caving wasn’t a sign of strength? Mon dieu.
Allen Farrington ends his column with this paragraph:
“We might call the solution of the Quillette editors the Uncle Ben approach: that with great power comes great responsibility, and that if this power exists, it should be dealt with as responsibly as possible. My proposed solution, on the other hand, is that of Elrond: nobody can wield this power, and those most confident they would use it for good are precisely those who must not be allowed to have it. While I’m sure Claire Lehmann would make a decent Galadriel and would not succumb to the temptation to abuse this power, there are far too many Boromirs for the possibility to be an acceptable risk. The ring must be destroyed.”
I agreed with him. I’d go one step forward: nobody must have that power. Rather than wasting time with details, once the barbarians are defeated, the task will be to strengthen the system of checks and balances.
Everyone outside of a totalitarians state thinks that totalitarians are power-mad egomaiacs who get off on ruining lives. In the real world, totalitarians are efficient leaders (assuming they stick around a long while) that serve the interest of a small subset of the population – usually the military but almost always other powerful cultural forces.
Totalitarians take the actions they do because that subset wants them to. That’s why the subset allows them to stay in power.
But the subset is never a hyper-rational set of income maximizers. They are just as bias, clanish, cultis, cliqueish, and/or ideological as anyone else. So the state enforces the ideology or whatever in a totalitarian way.
One’s mental model of a totalitarian state should be the puritans around the time of the witch trials. Not Megatron and Starscream sitting in an dormant volcano drywashing their hands and cackling over their evil plans.
Terry,
I’m almost exactly with you – except – that it isn’t the Salem Puritans, but the Roundheads, you should look to for inspiration.
In Fourth Amendment law, there is a legal rule called “The Third Party Doctrine”, which is taught as having been really established in the late 1970s by SCOTUS in US v Miller and Smith v Maryland.
Usually, the state needs to go get a warrant from a judge to go get some private information about you. But if you entered into some relationship such that another non-state party had that private information, that third party could in turn just hand it over, make all of it available for inspection, or even sell it to the state upon request, and without any warrant whatsoever.
Which, obviously, is super useful if it would be hard to get a warrant. If you can easily satisfy the Fourth Amendment, it’s easy to get a warrant. If you can’t, well … maybe the idea is that you don’t really have much right to poke around, but if you wanna poke around, there’s an easy alternative.
Well, a lot of legal scholars and judges from various ideological perspectives have pointed out the many obvious and serious problems with this doctrine for over four decades now. You can’t use a Constitution to constrain State Action if the state can just get some non-constrained actor to do their dirty work for them.
Now, some libertarians said, well, if people *really* cared about privacy, then they would pay much more for it, competition would emerge in the marketplace differentiating “state-cooperative” contracts from those which were “state uncooperative”, in which third parties would only provide assistance under legal compulsion.
IIRC, it was Judge Kozinski (RIC – Rest In Cancellation), not an enemy of libertarianism by any means, who responded that the trouble was that many of the key businesses, like giant telecom companies, were also both heavily regulated *and* heavily patronized by the state. They wouldn’t offer such contracts because the state would pressure them with these carrots and sticks not to offer them, in order to continue to exploit the “third party” circumvention and launder their unconstitutional state action through these “private” companies acting as their effective “agents” doing the state’s unlawful bidding, but with a veil *just* barely too thick to pierce, legally.
The test was whether any such state-uncooperative contracts would be a choice made available for customers by large telecoms, which of course they are not.
However, the judge argued, if you took away the loop hole, effectively forced the companies to be “state uncooperative”, then the state wouldn’t have the incentive to lean on them, and after all, a person in such a contract always retains the option of authorizing such warrantless cooperation with the state, if that individuals wants to, which is not exactly, but still kind of like as if there were multiple options out there.
So, yes, you would have to “restrain the liberty” of third parties, but that’s the only way to make sure the state doesn’t use an obvious loophole to exceed its bounds by means of corruption too subtle to prosecute. Poking into people’s private information without their consent should be a sovereign prerogative, an exclusively state-performed action, and no one else should do it, unless they are explicitly ordered by the state to do so, so everyone knows who is the true principal, and the true principal stays effectively constrained.
The same argument holds for Big Tech. The party in power cannot use the state to censor. But if Big Tech can censor, then the party is power will try to lean on them to do it on behalf of them (or else), and really no explicit leaning is necessary, it’s only necessary to know that’s what they want and they have a lot of or-else’s ready to fire at any time for conspicuous lack of getting with the plan.
But if you say that no one can censor except the state, because it is an exclusively sovereign prerogative to determine the boundaries of expression for a community, especially in a “democracy” where such boundaries are supposed to result from deliberation, negotiation, compromise, and general agreement, then if people suffer severely negative consequences for their actions, at least everyone knows it is coming from the entity supposed to hold the monopoly on such coercion of the individual.