Document Type
Article
Publication Date
10-2022
Journal Title
Berkeley Technology Law Journal
ISSN
1086-3818
DOI
10.15779/Z389C6S202
Abstract
Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of social media in detecting, investigating, and preventing crime.
This Article, prepared for a symposium dedicated to Joel Reidenberg’s germinal article Lex Informatica, untangles the relationship between content moderation and surveillance. Building on Reidenberg’s fundamental insights regarding the relationships between rules imposed by legal regimes and those imposed by technological design, the Article first traces how content moderation rules intersect with law enforcement, including through formal demands for information, informal relationships between platforms and law enforcement agencies, and the impact of end-to-end encryption. Second, it critically assesses the degree to which government involvement in content moderation actually tempers platform power. Rather than effective oversight and checking of private power, it contends, the emergent arrangements between platforms and law enforcement institutions foster mutual embeddedness and the entrenchment of private authority within public governance.
First Page
1297
Last Page
1340
Num Pages
44
Volume Number
36
Issue Number
3
Publisher
University of California Berkeley School of Law
Recommended Citation
Hannah Bloch-Wehba,
Content Moderation as Surveillance,
36
Berkeley Tech. L.J.
1297
(2022).
Available at:
https://scholarship.law.tamu.edu/facscholar/1662
File Type
Included in
Computer Law Commons, Constitutional Law Commons, First Amendment Commons, Internet Law Commons, Law and Politics Commons, Privacy Law Commons, Science and Technology Law Commons, Science and Technology Policy Commons, Science and Technology Studies Commons