A Multi-Modal Approach to Regulating Privacy and Online Platforms
Date of Award
Spring 2023
Document Type
Dissertation
Degree Name
Doctor of Philosophy (PhD)
Department
Law
First Advisor
Balkin, Jack
Abstract
This manuscript is comprised of three articles of legal scholarship. Democratizing Platform Privacy draws from labor history and theory to characterize the platform-person relationship and inform how information privacy norms could form democratically within private governance structures. During the Progressive Era, workers were “at the mercy” of employers who had the ability to determine unilaterally working conditions. Progressive scholars asserted worker powerlessness was abhorrent in a democratic society, which required worker “voice” in the factory as much as in the polling booth. Their response was a call for “industrial democracy”—worker collective action to countervail employer hegemony. This historic relationship presents a compelling analogy to the current status of the platform-person relationship with respect to information privacy, which is uniquely important for the healthy functioning of a democratic society. The Article lays out out a three-part blueprint for “platform democracy”—the democratic determination of information privacy through collective bargaining—and analyzed its potential efficacy and limitations given current legal and socio-technical conditions. Content Moderation Regulation as Legal Role-Scripting introduces role theory into the content moderation discourse. Lawmakers and scholars concerned content moderation regulation typically appeal to “analogies” to justify or undermine different forms of regulation. The logic goes, law should afford individuals due process rights against speech platforms because speech platforms are “like” speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and book stores. Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are “right” and “wrong” within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what social roles are, what they do, and how they come to be. Without this theoretical foundation, the discourse incompletely portrays the project of content moderation regulation. Content moderation regulations do not simply “take” speech platforms’ role as it currently exists. They will also “make” speech platforms’ role, by expressing that speech platforms should be speech governors, common carriers, publishers, or something else, based on how lawmakers choose to regulate. This Article argues content moderation regulations are poised to define the basic contours of what it means to be a “speech platform” because the role remains unsettled. Earlier, the Communications Decency Act failed to articulate coherent roles within the content moderation relationship. But current content moderation regulatory reforms—including the PACT Act in Congress, state platform-common carriage laws, and the Supreme Court’s decision in Gonzalez v. Google—have a renewed opportunity to script social roles for speech platforms and individuals. Foregrounding these reforms’ role scripts directs attention to urgent questions about whether they are likely to produce a desirable content moderation relationship and an online speech ecosystem that meets the public’s needs. Legal Scripts and Privacy Play introduces role theory into privacy law discourse. Privacy law has long operated through the idiom of social roles. But despite the ubiquity of role-centered privacy law, few legal scholars have examined the relationship between law and social role and its consequences for privacy lawmaking and social practice. As a result, privacy discourse has largely neglected to explore how social roles shape the direction of law and how law guides human behaviors by articulating role-based behavioral standards. This gap in privacy law scholarship is especially puzzling because of the well-documented link between privacy and social roles in individuals’ development of identity. The way many privacy laws shelter individuals’ identity formation isn’t through blanket, undifferentiated protections that apply equally to all. They afford rights and responsibilities to those in specific social roles, like patient, spouse, student, and consumer. In the process privacy laws help shape these roles’ meaning. Privacy law participates in the practice of identity formation in important part through the messages it sends about who it regulates and who it serves. And it can participate well or poorly. Privacy law’s role-scripting function illuminates how law contributed to the erosion of privacy online and it clarifies the threat the poor state of online privacy poses to emergent, subjective selfhood. It also brings to the foreground the legal pathways and social practices current privacy reform proposals are likely to support.
Recommended Citation
Mazzurco, Sari, "A Multi-Modal Approach to Regulating Privacy and Online Platforms" (2023). Yale Graduate School of Arts and Sciences Dissertations. 876.
https://elischolar.library.yale.edu/gsas_dissertations/876
