Josh Blackman has just published a fascinating new essay, “What Happens if Data Is Speech?” in the University of Pennsylvania Journal of Constitutional Law Online, asking some important questions about how courts should treat ― and how we should think about ― attempts to regulate the (re)creation and arrangement of information by “algorithms parsing data” (25). For example, Google’s algorithms suggest search queries on the basis of our and other users’ past searches, and then sort the available links in once we hit ‘enter’. Can Google be ordered to remove a potential query from the suggestions it displays, or a link from search results? Can it be asked to change the way in which it ranks these results? These and other questions will only become more pressing as these technologies become ever more important in our lives, and as the temptation to regulate them one way or another increases.
One issue that is a constant theme in the literature on this topic that prof. Blackman reviews is what, if any, is the significance of the fact that “with data, it is often difficult to find somebody with the traits of a typical speaker” (27). It thus becomes tempting to conclude that algorithms working with data can be regulated without regard for freedom of speech, since no person’s freedom is affected by such regulation. If at least some uses of data are, nevertheless, protected as free speech, there arises another issue which prof. Blackman highlights ― the potential for conflict between any such protection, and the protection of privacy rights, which takes of form of prohibitions on speaking against someone (in some way).
The focal point of these concerns, for now anyway, are search engines, and particularly Google. Prof. Blackman points out, as Google becomes our gateway to more and more of the information we need, it acquires a great deal of power over what information we ever get to access. Not showing up high in Google’s search results becomes, in effect, a sentence of obscurity and irrelevance. And while it will claim that it only seeks to make its output more relevant for users, the definition of “relevance” gives Google the ability to pursue an agenda of its own, whether it is punishing those who, in its own view, are trying to game its ranking system, as prof. Blackman describes, or currying favour with regulators or commercial partners, or even implementing some kind of moral vision for what the internet should be like (I describe these possibilities here and here). All that, combined with what seems to some as the implausibility of algorithms as bearers of the right to freedom of speech, can make it tempting for legislators to regulate search engines. “But,” prof. Blackman asks, “what poses a greater threat to free speech ― the lack of regulations or the regulations themselves?” (31) Another way of looking at this problem is to ask whether the creators and users of websites should be protected by the state from, in effect, regulation by Google or Google should be protected from regulation by the state (32).
The final parts of prof. Blackman’s essay address the question of what happens next, when ― probably in the near future ― algorithms become not only tools for accessing information but, increasingly, extensions of individual action and creativity. If the line between user and algorithm is blurred, regulating the latter means restricting the freedom of the former.
Prof. Blackman’s essay is a great illustration of the fact that the application of legal rules and principles to technologies which did not exist when they were developed can often be difficult, not least because these new technologies sometimes force us to confront the theoretical questions which we were previously able to ignore or at least to fudge in the practical development of legal doctrine. (I discussed one example of this problem, in the area of election law, here.) For instance, we have so far been able to dodge the question whether freedom of expression really serves the interests of the speaker or the listener, because for just about any expressive content there is at least one speaker and at least one listener. But when algorithms (re-)create information, this correspondence might no longer hold.
There are many other questions to think about. Is there some kind of baseline right to have Google take notice of you? Is the access to online information of such public importance that its providers, even private ones, effectively take on a public function, and maybe incur constitutional obligations in the process? How should we deal with the differences of philosophies and constitutional frameworks between countries?
This last question leads me to my final observation. So far as I can tell ― I have tried some searching, though one can always search more ― nothing at all has been written on these issues in Canada. Yet the contours of the protection of freedom of expression under the Canadian Charter of Rights and Freedoms are in some ways quite different from those under the First Amendment. When Canadian courts come to confront these issues ― when the Charter finally meets Google ― they might find some academic guidance helpful (says one conceited wannabe academic!). As things stand now, they will not find any.