Monday, August 28, 2023

"The Five Internet Rights"

The author of this paper, Nicholas J. Nugent, does have some background in this stuff:

Assistant Professor of Law, University of Tennessee (beginning August 2023); Karsh Fellow, Lecturer in Law, Program Director for the Karsh Center for Law & Democracy, University of Virginia School of Law; former Attorney for Microsoft; former Senior Corporate Counsel for Amazon.

From the Washington Law Review, University of Washington School of Law:

Abstract: Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These innovations point to a world in which it may soon be possible for private gatekeepers to exclude unpopular users, groups, or viewpoints from the internet altogether, a phenomenon I call viewpoint foreclosure.

For more than three decades, internet scholars have searched, in vain, for a unifying theory of interventionism—a set of principles to guide when the law should intervene in the private moderation of lawful online content and what that intervention should look like. These efforts have failed precisely because they have focused on the wrong gatekeepers, scrutinizing the actions of social media companies, search engines, and other third-party websites—entities that directly publish, block, or link to user-generated content—while ignoring the core resources and providers that make internet speech possible in the first place. This Article is the first to articulate a workable theory of interventionism by focusing on the far more fundamental question of whether users should have any right to express themselves on the now fully privatized internet. By articulating a new theory premised on viewpoint access—the right to express one’s views on the internet itself (rather than on any individual website)—I argue that the law need take account of only five basic non-discrimination rights to protect online expression from private interference—namely, the rights of connectivity, addressability, nameability, routability, and accessibility. Looking to property theory, internet architecture, and economic concepts around market entry barriers, it becomes clear that as long as these five fundamental internet rights are respected, users are never truly prevented from competing in the online marketplace of ideas, no matter the actions of any would-be deplatformer....

....MUCH MORE (98 page PDF)

HT: the author's guest article at The Volokh Conspiracy, August 28, the first of what looks to be a series discussing the paper:

Free Speech
When Should the Law Regulate Content Moderation?
Only when necessary to protect five basic internet rights.

Have I mentioned recently my visceral feelings toward Eugene Volokh? 

From a January 2022 post: "Do You Have A Right To Defy Criminal Demands?"
From UCLA Professor of Law Eugene Volokh,*

*I hate him.
From his UCLA faculty profile:
Volokh worked for 12 years as a computer programmer. He graduated from UCLA with a B.S. in math-computer science at age 15....