Social media, property and discrimination

On YouTube and other social networks continue to ban the right. Few of the victims evoke any sympathy in me, but it is a bad trend to remove large channels without any transparent procedures, where many years of human labor have been invested. And so the Republicans introduced a bill - Stop the Censorship Act of 2020. Its essence, in short, is that large IT companies are deprived of "the freedom to discriminate" (which is guaranteed to them by another law), they will be forced to observe freedom of speech, removing only "illegal, inciting violence and terrorism" content.

The traditional line of defense of IT companies in this sense is quite libertarian - they say that these companies simply dispose of their property. In addition, you yourself signed a flimsy letter (aka "user agreement") - that the owner of the site has the right to everything, and you to nothing. When it comes to the bath of the right and conservatives, the most ardent leftists suddenly turn into libertarians - they say, "go look for another YouTube for yourself."

However, this line of defense is unconvincing. And that's why.

1. First of all, "private discrimination" (actually it's a bad term - it sounds like "private racism"). If a person does not let someone on his property - it's like refusing to have sex with the first comer. Simply exercising the right. However, things are a little different when it comes to business and service delivery. A business can work on a club basis, or it can work on the basis of a public offer. That is, some ordinary rules that are clear to everyone without further explanation. If you are a club, then you must inform everyone about this in advance - a large sign "so-and-so entry is prohibited." If you open the doors for everyone, then you cannot kick out a client who came and sat down at a table, but you didn’t like something - this will be a violation of your public obligations issued by you.

How were social networks initially positioned? How is the private club? No, they were positioned as an open and public platform for everyone. But at the same time, their owners tend to sit on two chairs, reserving the right to expel anyone without explanation.

2. The attractiveness of social networks is built not only on the technical component, which is provided by the owner as a service. This is primarily content that is generated by users. The quality of food in a restaurant does not depend on whether people are sitting at neighboring tables, and in the case of social networks, it is people at neighboring tables that are “sold” to you. Social media is more like a joint venture. Not private property in its purest form, but something closer to commons i.e. community property. Therefore, the principles of "management of the common" are more applicable here. What exactly is the question. But the situation is definitely not appropriate when a single owner determines the entire policy unilaterally.

3. You can also draw an analogy with the rental market. In the modern world, many different businesses rent sites (office centers, shopping pavilions, etc.). Can the landlord change contracts unilaterally, expel tenants in the cold if he suddenly doesn’t like them? In the civilized world it cannot. Otherwise, no business could plan its future for more than three days. On the contrary, the assurance that conditions will not change arbitrarily is the cornerstone of a healthy legal environment. So, YouTube, Twitter and others are such landlords, on whose territory many entrepreneurs live. Only today they can kick you out on the street without explanation if they don't like something.

Therefore, I hope that the Republicans, until grandfather Trump sent their party into oblivion, will still be able to wind the tails of the IT giants. There is no infringement of property rights in this. On the contrary, it is rather the protection of property rights and the establishment of a normal legal environment where it did not exist.

Mihail Pojarsky 2020-08-03