Author:Tsesis, Alexander
Position:Contemporary Free Speech: The Marketplace of Ideas a Century Later

The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy.

Social media companies disseminate news, advertisements, and political messages, while also capitalizing on consumers' private shopping, surfing, and traveling habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash up and scrape enormous amounts of online and otherwise available personal data to microtarget audiences. By collecting and then processing psychometric data sets, commercial and political advertisers rely on emotive advertisements to manipulate biases and vulnerabilities that impact audiences' shopping and voting habits.

The Free Speech Clause is not an absolute bar to the regulation of commercial intermediaries who exploit private information obtained on the digital marketplace of ideas. The Commerce Clause authorizes passage of laws to regulate internet companies that monetize intimate data and resell it to third parties. Rather than applying strict scrutiny to such proposed regulations as one would to pure speech, judges should rely on intermediate scrutiny to test statutes limiting the commercial marketing of data.

Legislative reforms are needed to address the substantial economic effects of massive, commercial agglomeration of data files containing histories, daily routines, medical conditions, personal habits, and the like. To address this logarithmically expanding cyberphenomenon, Congress should temporally restrict the retention and trade in private data. Internet intermediaries should not be immune from such a restriction on private data storage. For such a policy to be effective, safe, harbor provisions shielding internet intermediaries should be modified to allow for civil litigation against internet companies that refuse a data subject's request to remove personal information no longer needed to accomplish the transaction for which it was originally processed.

INTRODUCTION 1586 I. AUDIENCES AND DIGITAL COMMERCIALIZATION 1595 II. EROSION OF PRIVACY 1601 III. BALANCING AUDIENCE INTERESTS AND PRIVACY CONCERNS 1609 A. Commercial Data Exploitation 1610 B. Judicial Review of False and Misleading Advertisements 1613 IV. REGULATING RETENTION OF DATA 1618 A. False and Misleading Digital Messages 1618 B. Section 230 Immunity 1623 C. Limiting Storage of Digital Data 1625 D. Fake News and Disinformation 1626 CONCLUSION 1627 Our own information--from the everyday to the deeply personal--is being weaponized.... These scraps of data, each one harmless enough on its own, are carefully assembled, synthesized, traded and sold.

Taken to the extreme this process creates an enduring digital profile and lets companies know you better than you may know yourself. Your profile is a bunch of algorithms that serve up increasingly extreme content, pounding our harmless preferences into harm.

--Tim Cook, Apple Corp. CEO (1)


One of the most complex puzzles in constitutional law is how to adjudicate cases where a commercial speaker disseminates private information in the marketplace of ideas without the data subjects' prior consent. This conflict has become particularly acute with the expanding online library of personal information. Internet firms rely on algorithmically powered technologies to sift through enormous amounts of information relevant for monitoring, retailing, convincing, or reselling. Electronic tools enable websites to aggregate consumer information, which can almost instantaneously be commodified and linked to hundreds of thousands of additional data points about consumer information, lifestyle habits, demographics, political preferences, reading habits, travel routes, ambitions, illnesses, and so forth.

Internet intermediaries provide audiences with a wealth of public and private information. They function as gatekeepers relying on well-orchestrated marketing strategies, capable of influencing consumers' experiences, behaviors, and thoughts. (2) Commercial speech benefits corporations, and in the internet world it benefits mostly online data providers, as opposed to consumers. (3) Much of the information they obtain through free services, such as email or social platforms, is transmitted to commercial parties not involved in the original electronic transaction. The data subject (4) loses control of information when the internet platform transmits private facts to third parties without the subject's knowledge or approval. This cross-pollination of information directs consumer experiences and political exposure to paid advertisements that can algorithmically profile and target audiences. (5) Even extortionists have found compromising information, such as arrest photographs located on police and news websites, helpful for shaking down subjects. (6) Online intermediaries substantially impact consumer privacy, civic information, and even personal reputations. Marketing in profiles creates opportunities and risks. Internet intermediaries channel information, making it easier to navigate the internet. But users' privacy is compromised when data brokers refuse to divulge to consumers all the online third parties with whom they exchange profiles.

This Article argues that massive retention of personal information poses a substantial harm to the privacy interests of data subjects. Congress should rely on its Commerce Clause authority to regulate internet intermediaries' sales of commercial data. Social media companies enjoy trillions of dollars in profits, having a substantial enough effect on interstate commerce to require federal initiative to control the sale, resale, and analysis of personal information tendered for specific digital transactions. The First Amendment does not protect online data collectors, and U.S. law should be modified to establish civil causes of action for publishing defamatory and knowingly misleading information. My focus is on commercial transactions. Thus, the suggested regulations do not apply to natural, private persons processing data. Cyberbusinesses profit from data retention, resale, and algorithmic profiling. Consumer protection laws prohibiting the nonconsensual manipulation of processed personal data are in order in such a marketing scheme.

Reliance on psychometrics about such characteristics as socioeconomic backgrounds benefits marketers. (7) Commercial entities regularly hire specialists to harvest messages, user histories, purchases, social media uses, and other data points useful in identifying idiosyncratic behaviors. An audience's right to information and a subject's right to privacy often clash. The marketplace of commerce is not the same thing as the marketplace of ideas.

In the United States, the Supreme Court tends to favor an audience's right to access, receive, and obtain information, (8) but it recognizes that commercial communication is of a lower First Amendment value than philosophical, artistic, and scientific expressions. (9) What is more, defamation, which is not uncommon in the digital marketplace, has no value in the quest for truth. Without effective consumer privacy laws, a data subject seeking to remove defamatory statements or videos is at the mercy of companies' opaque review processes. On the internet, the troublesome material can be viewed thousands (even millions) of times. (10) In this Article, my interest is not a philosophical concept of privacy, but more narrowly the principles relevant to consumer privacy protections in the digital realm. Under those circumstances, regulation of commercial digital speech is a substantial government interest that might be narrowly tailored to safeguard details about a person's sexuality, finances, address, and health.

Resolution of audience/privacy conflicts is critical in a marketplace saturated with digital technologies providing invaluable information at the cost of capturing personal details about users. Five companies dominate the digital realm: Amazon, Apple, Alphabet, Facebook, and Microsoft. (11) Each specializes in the development and manipulation of technologies designed to provide data to targeted audiences while tracking details about everything from people's employment history, to their race, police records, gender, sexual preference, addictions, and anything else that will help to algorithmically improve marketing. Benefitting from customers' personal data and reselling does not fit the traditional marketplace of ideas model; rather, it is a commercial scheme to profit corporations, not natural persons. To listen to the former Google CEO, Eric Schmidt, one would think social media forums are altruistic entities gathering public and intimate portraits of online users to best benefit their audiences:

With your permission you give us more information about you, about your friends, and we can improve the quality of our searches. We don't need you to type at all. We know where you are. We know where you've been. We can more or less know what you're thinking about. (12) In the name of improving product quality and delivery, Schmidt apparently thinks marketing can be done by all-knowing corporations providing commercial services. But the practice of corporate officers automatically destroying their email on their own servers and other account holders' inboxes demonstrates that Facebook and others know full well the value of privacy but provide customers with fewer safeguards than they rely on. (13) Facebook's mission statement (14) similarly presents a company seeking to benefit consumers, and it is truly a remarkable platform for bringing family, friends, and strangers together. It has the ability to spread cultural richness of immense importance to...

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