A fascinating study by University of California law professor Jodi Short empirically illustrates the role of neoliberal ideology as one important explanation for Google’s ambitions and successful defense of lawless territory.36 Short analyzed 1,400 law review articles on the subject of regulation, all published between 1980 and 2005. As the influence of Hayek and Friedman predicts, the dominant theme of this literature was “the coercive nature of administrative government” and the systematic conflation of industry regulation with “tyranny” and “authoritarianism.” According to this worldview, all regulation is burdensome, and bureaucracy must be repudiated as a form of human domination. Short observes that during the sample decades these fears were even more influential in shaping regulatory approaches than rational arguments about cost and efficiency, and she identifies two points of origin for these anxieties.
The first source was in the US business community’s opposition to New Deal reforms, which, not unlike the propaganda of the Gilded Age millionaires, cast resistance to regulation as a “righteous fight to defend democracy from dictatorship.”37 A second source was the dread of totalitarianism and collectivism incited by World War II and the cold war, a direct inheritance from Hayek. These defensive themes infiltrated and reshaped US political thought, and they gradually transformed policy makers’ assumptions about the regulatory role of the state.38
Short found several suggested remedies for “coercive” governmental regulation in the literature, but the most salient, especially after 1996—the very years when digital technology and the internet were becoming mainstream—was “self-regulation.” The idea here is that firms set their own standards, monitor their own compliance with those standards, and even judge their own conduct in order to “voluntarily report and remediate violations.”39 By the time of Google’s public offering in 2004, self-regulation was fully enshrined within government and across the business community as the single most effective tool for regulation without coercion and the antidote to any inclination toward collectivism and the centralization of power.40
This neoliberal legacy was a windfall for the new surveillance capitalists. As another legal scholar, Frank Pasquale, observed, it produced a model that treated privacy as a competitive good, assuming that “consumers” engage only with services that offer the level of privacy they seek. Regulatory interference, according to this view, would only undermine competitive diversity. It also credits the “notice and consent” model—click-wrap and its “sadistic” relatives—as accurate signals of individual privacy choices.41
The neoliberal zeitgeist also favored Google’s leaders, and later their fellow travelers in the surveillance project, as they sought shelter for their inventions beneath claims of First Amendment rights to freedom of expression. This is a complex and contested arena in which constitutional law and political ideology are thoroughly entangled, and I point out just a few elements here in order to better understand the habitat that nurtured the new surveillance market form.42
The key dynamic here is that First Amendment jurisprudence, especially over the last two decades, has reflected a “conservative-libertarian” interpretation of First Amendment rights. As constitutional law scholar Steven Heyman suggests, “In recent decades, the First Amendment has become one of the most important means by which judges have sought to advance a conservative-libertarian agenda.”43 This has produced many dramatic judicial decisions, including the US Supreme Court’s rejection of any constraints on the role of money in election campaigns, its rejection of restrictions on hate speech and pornography, and its holding that the right to free association takes precedence over state civil rights laws that bar discrimination.
As many legal scholars observe, the ideological orientation of contemporary First Amendment judicial reasoning asserts a close connection between free speech and property rights. The logic that links ownership to an absolute entitlement to freedom of expression has led to a privileging of corporate action as “speech” deserving of constitutional protection.44 Some scholars regard this as a dangerous reversion to the feudal doctrines from which corporate law evolved in the seventeenth century. Those medieval legal principles limited the sovereign’s authority over “the corporations of Aristocracy, Church, guilds, universities, and cities… who asserted the right to rule themselves.” One result is that US courts have been “quick to see the possibilities of governmental overreach, but much less willing to see the problems of ‘private,’ let alone corporate, power.”45
In this context, surveillance capitalists vigorously developed a “cyberlibertarian” ideology that Frank Pasquale describes as “free speech fundamentalism.” Their legal teams aggressively assert First Amendment principles to fend off any form of oversight or externally imposed constraints that either limit the content on their platforms or the “algorithmic orderings of information” produced by their machine operations.46 As one attorney who has represented many of the leading surveillance capitalists puts it, “The lawyers working for these companies have business reasons for supporting free expression. Indeed, all of these companies talk about their businesses in the language of free speech.”47
This is one respect in which the surveillance capitalists are not unprecedented. Adam Winkler, a historian of corporate rights, reminds us, “Throughout American history the nation’s most powerful corporations have persistently mobilized to use the Constitution to fight off unwanted government regulations.”48 Although today’s mobilizations are not original, Winkler’s careful account demonstrates the effects of past mobilizations on the distribution of power and wealth in US society and the strength of democratic values and principles in each era.
The key point for our story in the age of surveillance capitalism is that the expansion of opportunities for free expression associated with the internet has been an emancipatory force in many vital respects, but this fact must not blind us to another condition: free speech fundamentalism has deflected careful scrutiny of the unprecedented operations that constitute the new market form and account for its spectacular success. The Constitution is exploited to shelter a range of novel practices that are antidemocratic in their aims and consequences and fundamentally destructive of the enduring First Amendment values intended to protect the individual from abusive power.
In the US, congressional statutes have played an equally or perhaps even more important role in sheltering surveillance capitalism from scrutiny. The most celebrated of these is a legislative statute known as Section 230 of the Communications Decency Act of 1996, which shields website owners from lawsuits and state prosecution for user-generated content. “No provider or user of an interactive computer service,” the statute reads, “shall be treated as the publisher or speaker of any information provided by another information content provider.”49 This is the regulatory framework that enables a site such as TripAdvisor to include negative hotel reviews and permits Twitter’s aggressive trolls to roam free without either company being held to the standards of accountability that typically guide news organizations. Section 230 institutionalized the idea that websites are not publishers but rather “intermediaries.” As one journalist put it, “To sue an online platform over an obscene blog post would be like suing the New York Public Library for carrying a copy of Lolita.”50 As we shall see, this reasoning collapses once surveillance capitalism enters the scene.
Section 230’s hands-off stance toward companies perfectly converged with the reigning ideology and practice of “self-regulation,” leaving the internet companies, and eventually the surveillance capitalists among them, free to do what they pleased. The statute was crafted in 1995, during the initial phase of the public internet. It aimed to clarify intermediaries’ liability for the content on their websites and resolve a controversy created by two contradictory court decisions both involving defamatory posts.51 In 1991 a court found that CompuServe was not liable for defamation because it had not reviewed the contents of a post before it appeared online. The court reasoned that CompuServe was
comparable to a public library, bookstore, or newsstand: a distributor, not a publisher.
Four years later, in 1995, an early provider of web services called Prodigy was sued for a defamatory anonymous posting on one of its message boards. This time a New York state court came to the opposite conclusion. The key problem as the court saw it was that Prodigy had exercised editorial control by moderating its message boards. The company established content guidelines and deleted posts that violated those standards. The court concluded that Prodigy was a publisher, not merely a distributor, because it had taken responsibility for the content on its site. Were the court’s ruling to stand, internet companies would face “a paradoxical no-win situation: the more an ISP tried to keep obscene or harmful material away from its users, the more it would be liable for that material.”52 Internet companies faced a binary choice: “free speech savior or shield for scoundrels?”53
According to Senator Ron Wyden, Section 230 was intended to resolve that contradiction by encouraging internet companies to exercise some control over content without the risk of legal sanctions. The very first sentence of the statute mentions “protection for ‘good samaritan’ blocking and screening of offensive material.”54 What Wyden and his colleagues could not have anticipated, and still do not grasp, is that the logic of this early controversy no longer holds. Neither CompuServe nor Prodigy was a surveillance capitalist, but many of today’s internet intermediaries are committed to the pursuit of surveillance revenues.
This fact fundamentally changes the relationship between the company and the content on its platforms, and it explains why surveillance capitalists cannot be compared to the New York Public Library as the neutral caretaker of Nabokov’s venerated book. Far from it. Under the regime of surveillance capitalism, content is a source of behavioral surplus, as is the behavior of the people who provide the content, as are their patterns of connection, communication, and mobility, their thoughts and feelings, and the meta-data expressed in their emoticons, exclamation points, lists, contractions, and salutations. That book on the bookshelf—along with the records of anyone who may have touched it and when, their location, behavior, networks, and so on—is now the diamond mine ready for excavation and plunder, to be rendered into behavioral data and fed to the machines on their way to product fabrication and sales. Section 230’s protection of the “intermediaries” now functions as another bulwark that shelters this extractive surveillance capitalist operation from critical examination.
There is nothing neutral about the surveillance intermediary now, as the extraction imperative and its demand for economies of scale in surplus supply mean that the surveillance capitalists must use every means to attract a never-ending tide of content to their shores. They no longer merely host content but aggressively, secretly, and unilaterally extract value from that content. As we shall see in Chapter 18, economic imperatives require them to forgo as few of these raw materials as possible. That means moderating only those extremes that threaten the volume and velocity of surplus by repelling users or attracting regulatory scrutiny. This is the reason that firms such as Facebook, Google, and Twitter have been reluctant to remove even the most egregious content from their landscapes, and it helps to explain why “lawyers for tech companies litigate ferociously to prevent even a sliver of erosion” in Section 230.55 A statute once crafted to nurture an important new technological milieu is now the legal bulwark that protects the asymmetric wealth, knowledge, and power of a rogue capitalism.
IV. Shelter: Surveillance Exceptionalism
In his book Surveillance After September 11, surveillance scholar David Lyon writes that in the aftermath of the attacks that day, existing surveillance practices were intensified and previous limits were lifted: “After several decades in which data-protection officials, privacy watchdogs, civil rights groups, and others have tried to mitigate negative social effects of surveillance, we are witnessing a sharp tilt toward more exclusionary and intrusive surveillance practices.”56 This abrupt refocusing of governmental power and policy after the 9/11 attacks in New York City and Washington, DC, is a second historical condition that lent shelter to the fledgling market form.
Lyon’s characterization is accurate.57 In the years before 9/11, the Federal Trade Commission emerged as the key actor defining the debate on internet privacy in the US. For reasons that we have already reviewed, the FTC favored self-regulation, and it cajoled internet companies to establish codes of conduct, privacy policies, and methods of enforcement.58 But the FTC eventually concluded that self-regulation would not be sufficient to protect individual consumers’ privacy on the web. In 2000, still one year before the 9/11 attacks, Google’s discovery of behavioral surplus, or the success of AdWords, a majority of FTC commissioners issued a report in which they recommended legislation to regulate online privacy: “Because self-regulatory initiatives to date fall far short of broad-based implementation of self-regulatory programs,” they wrote, “the Commission has concluded that such efforts alone cannot ensure that the online marketplace as a whole will follow the standards adopted by industry leaders… notwithstanding several years of industry and governmental effort.” The reported noted that a mere 8 percent of popular websites featured a seal of approval from one of the industry privacy watchdogs.59
The commissioners proceeded to outline federal legislation that would have protected consumers online despite the dominant bias against regulation and in favor of treating internet operations as free speech. The recommendations demanded “clear and conspicuous” notice of information practices; consumer choice over how personal information is used; access to all personal information, including rights to correct or delete; and enhanced security of personal information.60 Had these been translated into law, it is quite possible that many of the foundational elements of surveillance capitalism would have been either plainly illegal or at least subject to public examination and contest.
The FTC effort was short-lived. According to Peter Swire, chief counselor for Privacy in the Clinton Administration and later a member of President Obama’s Review Group on Intelligence and Communication Technologies, “With the attacks of September 11, 2001, everything changed. The new focus was overwhelmingly on security rather than privacy.”61 The privacy provisions debated just months earlier vanished from the conversation more or less overnight. In both the US Congress and across the EU, legislation was quickly put in place that decisively expanded surveillance activities. The US Congress passed the Patriot Act, created the Terrorist Screening Program, and instituted a host of other measures that dramatically increased the warrantless collection of personal information. The events of 9/11 also triggered a steady stream of legislation that expanded the powers of intelligence and law-enforcement agencies across Europe, including Germany (a country that had been highly sensitized to surveillance under the hammer of both Nazi and Stalinist totalitarianism), the UK, and France.62
In the US the failure to “connect the dots” on the terrorist attack was a source of shame and dismay that overwhelmed other concerns. Policy guidelines shifted from “need to know” to “need to share” as agencies were urged to tear down walls and blend databases for comprehensive information and analysis.63 In a parallel development, privacy scholar Chris Jay Hoofnagle observes that the threat of comprehensive privacy legislation had also mobilized the business community and its lobbyists to either “shape or stop” any potential bill. In the post–9/11 political environment, the two forces converged for an easy victory.64
The internet was the critical target. CIA Director Michael Hayden conceded as much in 2013 when he told an audience that in the years following 9/11, the CIA “could be fairly charged with the militarization of the world wide web.”65 Legislation to regulate online privacy was an immediate casualty. Marc Rotenberg, the director of the Electronic Privacy Information Center (EPIC), testified to the 9/11 Commission on the sudden reversal of privacy concerns, observing that before 9/11, “There was hardly any positive discussion about the developme
nt of techniques that would enable massive surveillance while attempting to safeguard privacy.”66 Swire concurred, noting that as a result of the new emphasis on information sharing, “Congress lost interest in regulating information usage in the private sector.… Without the threat of legislation, the energy went out of many of the self-regulatory efforts that industry had created.”67 At the FTC, the focus shifted from the broader concerns of privacy rights to a more politically palatable “harms-based” strategy, pursuing cases in which concrete physical harms or economic injuries could be defined, such as identify theft or database security.68
With legislation off the table, other forces shaped the political environment in which surveillance capitalism would root and grow. The 9/11 terrorist attacks thrust the intelligence community into an unfamiliar demand curve that insisted on exponential increases in velocity. For all its secrecy, even the NSA was subject to the temporalities and legal restrictions of a democratic state. The tempos of democracy are slow by design, weighted by redundancies, checks and balances, laws and rules. The agencies sought methods of deployment that could rapidly bypass legal and bureaucratic restrictions.
In this environment of trauma and anxiety, a “state of exception” was invoked to legitimate a new imperative: speed at any cost. As Lyon put it, “What 9/11 did was to produce socially negative consequences that hitherto were the stuff of repressive regimes and dystopian novels.… The suspension of normal conditions is justified with reference to the ‘war on terrorism.’”69 Critical to our story is the fact that this state of exception favored Google’s growth and the successful elaboration of its surveillance-based logic of accumulation.
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