Rights Out of Reach
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Earlier this month , when asked whether his company would promise GDPR protections to its users worldwide, Zuckerberg demurred. These updates do not change that. Privacy researcher Lukasz Olejnik disagreed, noting that the change carried large ramifications for the affected users. The change will amount to the reduction of privacy guarantees and the rights of users, with a number of ramifications, notably for for consent requirements. Users will clearly lose some existing rights, as US standards are lower than those in Europe.
Even if their data privacy regulators are less rapid than those in Europe, this event is giving them a chance to act.
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Although it is unclear how active they will choose to be, the global privacy regulation landscape is changing, with countries in the world refining their approach. Europe is clearly on the forefront of this competition, but we should expect other countries to eventually catch up. Facebook , U.
After all, for about years, the U. Thus, traditional legal doctrine provides that private actors are not constrained by the Constitution generally.
It purportedly creates a zone of privacy and protects us from excessive governmental interference. The Court developed the state action doctrine in the Civil Rights Cases of This case actually consisted of five consolidated cases in which private businesses egregiously excluded African-American plaintiffs from their privately owned facilities opened to the public such as movie theaters, inns, amusement parks, and trains on the basis of race.
Individual invasion of individual rights is not the subject-matter of the amendment. The Court said that there were no constitutional remedies available to these plaintiffs and that they would need to rely on the common law state protections. Sadly, there were no such state common law protections either. Ferguson , and other decisions, recognized that his colleagues were allowing the government a free pass to discriminate against persons of a particular race with regard to the use of public facilities.
Civil Rights Cases , U.
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Harlan, dissenting. But, in , speech takes place online much more so than it does in traditional public forums, such as public parks and streets. People communicate on social networking sites, such as Facebook and Twitter, more than in any offline venues. The U.
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Supreme Court recognized this reality last year in Packingham v. North Carolina , S. In other words, social media networking sites have become the modern- day equivalent of traditional public forums like public parks and public streets. This societal development and change in communications capacities require that the antiquated state action doctrine be modified lest the law become ossified. The time has come to recognize that the reach of the First Amendment be expanded.
This is not a novel thesis. Many others have advocated for this approach.
Many legal scholars have recognized that when a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor. For example, legal commentator Benjamin F.
Decades earlier, the brilliant legal scholar Erwin Chemerinsky argued that the state action doctrine should be revisited and abandoned. He wrote that private censorship can be as harmful as governmental censorship. As applied to freedom of speech, he posited:.
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