[governance] Free Speech for Computers?

[Lee W McKnight]

Somewhat related, although I did not advocate human rights for social machines:

http://wigit.ischool.syr.edu/index.php/news/80-social-machines-just-hanging-out

Lee


________________________________________
From: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] on behalf of Riaz K Tayob [riaz.tayob at gmail.com]
Sent: Thursday, June 21, 2012 3:57 AM
Subject: [governance] Free Speech for Computers?

Op-Ed Contributor
Free Speech for Computers?
By TIM WU
Published: June 19, 2012



DO machines speak? If so, do they have a constitutional right to free
speech?


For Op-Ed, follow @nytopinion and to hear from the editorial page
editor, Andrew Rosenthal, follow @andyrNYT.

This may sound like a fanciful question, a matter of philosophy or
science fiction. But it’s become a real issue with important consequences.

In today’s world, we have delegated many of our daily decisions to
computers. On the drive to work, a GPS device suggests the best route;
at your desk, Microsoft Word guesses at your misspellings, and Facebook
recommends new friends. In the past few years, the suggestion has been
made that when computers make such choices they are “speaking,” and
enjoy the protections of the First Amendment.

This is a bad idea that threatens the government’s ability to oversee
companies and protect consumers.

The argument that machines speak was first made in the context of
Internet search. In 2003, in a civil suit brought by a firm dissatisfied
with the ranking of Google’s search results, Google asserted that its
search results were constitutionally protected speech. (In an
unpublished opinion, the court ruled in Google’s favor.) And this year,
facing increasing federal scrutiny, Google commissioned Eugene Volokh, a
law professor at the University of California, Los Angeles, to draft a
much broader and more elaborate version of the same argument. As
Professor Volokh declares in his paper: “Google, Microsoft’s Bing,
Yahoo! Search, and other search engines are speakers.”

To a non-lawyer the position may sound bizarre, but here is the logic.
Take a newspaper advice columnist like Ann Landers: surely her answers
to readers’ questions were a form of speech. Likewise, when you turn to
Google with a question, the search engine must decide, at that moment,
what “answers” to give, and in what order to put those answers. If such
answers are speech, then any government efforts to regulate Google, like
any efforts to bowdlerize Ann Landers, must be examined as censorship.

And that’s where theory hits reality. Consider that Google has attracted
attention from both antitrust and consumer protection officials after
accusations that it has used its dominance in search to hinder
competitors and in some instances has not made clear the line between
advertisement and results. Consider that the “decisions” made by
Facebook’s computers may involve widely sharing your private
information; or that the recommendations made by online markets like
Amazon could one day serve as a means for disadvantaging competing
publishers. Ordinarily, such practices could violate laws meant to
protect consumers. But if we call computerized decisions “speech,” the
judiciary must consider these laws as potential censorship, making the
First Amendment, for these companies, a formidable anti-regulatory tool.

Is there a compelling argument that computerized decisions should be
considered speech? As a matter of legal logic, there is some similarity
among Google, Ann Landers, Socrates and other providers of answers. But
if you look more closely, the comparison falters. Socrates was a man who
died for his views; computer programs are utilitarian instruments meant
to serve us. Protecting a computer’s “speech” is only indirectly related
to the purposes of the First Amendment, which is intended to protect
actual humans against the evil of state censorship. The First Amendment
has wandered far from its purposes when it is recruited to protect
commercial automatons from regulatory scrutiny.

It is true that the First Amendment has been stretched to protect
commercial speech (like advertisements) as well as, more
controversially, political expenditures made by corporations. But
commercial speech has always been granted limited protection. And while
the issue of corporate speech is debatable, campaign expenditures are at
least a part of the political system, the core concern of the First
Amendment.

The line can be easily drawn: as a general rule, nonhuman or automated
choices should not be granted the full protection of the First
Amendment, and often should not be considered “speech” at all. (Where a
human does make a specific choice about specific content, the question
is different.)

Defenders of Google’s position have argued that since humans programmed
the computers that are “speaking,” the computers have speech rights as
if by digital inheritance. But the fact that a programmer has the First
Amendment right to program pretty much anything he likes doesn’t mean
his creation is thereby endowed with his constitutional rights. Doctor
Frankenstein’s monster could walk and talk, but that didn’t qualify him
to vote in the doctor’s place.

Computers make trillions of invisible decisions each day; the
possibility that each decision could be protected speech should give us
pause. To Google’s credit, while it has claimed First Amendment rights
for its search results, it has never formally asserted that it has the
constitutional right to ignore privacy or antitrust laws. As a nation we
must hesitate before allowing the higher principles of the Bill of
Rights to become little more than lowly tools of commercial advantage.
To give computers the rights intended for humans is to elevate our
machines above ourselves.

Tim Wu, a law professor at Columbia, is the author of “The Master
Switch: The Rise and Fall of Information Empires.”
https://www.nytimes.com/2012/06/20/opinion/free-speech-for-computers.html?_r=1&smid=fb-share



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