There’s a tension on the web today between creating a safe space to be online versions the costs to censorship and free speech. Spam, bots, trolls, harassment, hate speech, and terrorism are on the frontlines of making the web an unpleasant place to hang out, and so every online platform has to make a decision for what their terms of service are going to be be in order to foster a certain culture that makes it bearable to spend time there.

The issue is that our online platforms are communication have been increasingly consolidating into just a handful of companies including Facebook, Google, Twitter, etc. Without a plurality of places online that people are using, then this monopolization of communication networks has the effect of the enforcement of these terms of service be interpreted as forms of censorship and free speech.

Not only that, but these same major corporations are either directly collaborating with governmental mass surveillance programs, or the weaknesses of the third party doctrine as applied to the Fourth Amendment means that any information that you provide to a third party has “no reasonable expectations to remain private.” Sharing data means no secrecy, and therefore no privacy in the US government’s eyes.

The ACLU disagrees with the government’s assessment that any data shared with a third party is no longer private, and they had a small victory in the Carpenter case that went to the Supreme Court that indicated that the third doctrine shouldn’t be a blanket application to all online data, and that it needs to be looked at on a case by case basis.

I had a chance to talk with the Jennifer Granick who works at the ACLU as Surveillance and Cybersecurity Council about mass surveillance, the third party doctrine, and the debates around free speech and censorship are complicated by the monopolization of communication networks and with governments colluding with technology companies in order to censor information online. The legal lines between free speech and tyrannical governmental control creates a number of slippery slopes that has lead the ACLU to some surprising legal battles.

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