Big Tech and Arbitrary Interferences with Free Internet Access

Being able to access the Internet in today’s digitalised societies has become indispensable for having adequate opportunities to exercise our human rights. Those who are digitally excluded are politically and socially excluded because they cannot use vital digital venues and tools to enjoy their human rights to e.g. free speech, free association, free information, education, healthcare, work, and political participation. Generally, the Internet must therefore be accessible to everyone to guarantee that everyone has fair options to enjoy their human rights. Access to these digital venues and tools can sometimes be justly limited e.g. for security reasons, to protect individuals’ rights, or to manage network efficiency or data flows. What is needed to distinguish between justified and unjustified interferences with Internet access is a normative criterion. I argue that this criterion is whether such interferences unduly (i.e. for arbitrary reasons) limit the exercise of human rights online. Private tech companies interfere with people’s exercise of human rights online in multiple ways. One is their imposition of terms and conditions on users of digital services and platforms that force them to give up personal information (‘surveillance capitalism’, Zuboff 2019). In this paper, I will focus on two other instances of big tech interference with free Internet access: (a) community rules and membership of dominant social media platforms and (b) corporate attempts to undermine (Inter)net neutrality. With respect to social media platform rules and membership, the main issue is the fact that, even though these digital venues are considered essential parts of the ‘modern public square’, they are owned by private corporations that determine their membership and rules. The community rules of platforms like Facebook, though, often restrict free speech (e.g. bans on nudity) below what is permitted by international human rights law. They also banned individuals (e.g. Donald Trump) for the views they expressed on these platforms. Private companies are permitted to police and exclude in this way because the platforms are their private territory. I argue that this is no longer an adequate description of the nature and function of dominant online platforms. Instead of treating them like private marketplaces, rules like the US Public Forum doctrine should apply to them and limit the power of platform operators to dictate membership and community rules. Private companies also lobby to end net neutrality (i.e. the equal treatment of data flows on the Internet). Various reasons are given for this (e.g. maintaining network efficiency, incentives to increase bandwidth capacity, complying with criminal law, preventing freeriding of large content providers, preventing malware and spam). While some of these reasons are justifiable, others (e.g. requiring fees for faster delivery of content to maximise profit) are problematic because limiting the free flow of data online can negatively affect innovation (van Schewik 2010) and the exercise of human rights (e.g. free speech or cultural participation) online. I argue that we can distinguish between legitimate and arbitrary interferences with Internet access by considering how they promote or hinder the use of human rights online.