Computers and programs are the design of their creators. And when a program is seen to output content that is controversial, obscene, or maybe simply illegal, where does the First Amendment come into play? Does free speech pertain to the programs we write? (Interestingly, what if we somehow manage to create Artificial Intelligence that can automate it’s own thoughts? Whose speech is that..?) It seems fairly obvious at first glance that if John Smith creates a program that outputs some illicit content, then John Smith is at least mostly responsible for that.
But let’s look deeper. A GPS system uses “speech” to guide you along a route. LinkedIn will use it’s “voice” to suggest some friends to you. Do these enjoy the rights of the First Amendment? Do they deserve to? Do they belong in a separate category altogether?
Tim Wu does an interesting job exploring the topic here. As he notes, a lawsuit in 2003 from a company complaining about their search result ranking provided by Google led to the declaration that those search results represent constitutionally protect speech. This seems to make sense — Google publishes an opinion on what it believes is important given a search topic, and the user can choose to interpret it how he/she pleases. This sounds like speech to me. But take it another step and consider that government attempts to control or regulate Google would then be a violation of free speech. Things start to get hairy.
Wu continues offering a few examples: consider Google’s embedding of advertisements slyly into search results, Facebook’s distribution of information, Amazon’s recommendations. If these decisions too are protected by free speech, then they cannot be regulated; they can impede competition and alter results in a way that is advantageous to them. Is this appropriate? Wu boldly claims: “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.)”
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Reading this article, it seems that Mr. Wu is a bit misinformed/lacking in some knowledge. The decisions he highlighted and conglomerated, that is those pertaining to Google’s ads, Facebook’s distribution of information, and Amazon’s recommendations seem poorly grouped. Facebook distributing information via algorithms is not an issue of free speech. That is not so much a “decision” decided by algorithm as it is a blatant choice of the engineer who made it. Additionally, this is not free speech, but a potential breech in privacy laws. This is a different topic altogether that does not belong in this discussion.
The other two may have potential merit and belonging in this topic. And to answer the question of whether or not this is appropriate, I say, “Why the hell not?” Simply, Google and Amazon or companies that offer us consumers a service. There are plenty of alternatives to these two powerhouses, and we as consumers elect to use them. If Google places ads and arguably blends them in as search results or gives preferential treatment in their results, then that is their decision. It is our job as consumers to see through poor service and use other options, protest Google’s services as necessary, and act accordingly. Likewise, if we disagree with Amazon’s recommendations or ethics in providing skewed results, then we can act accordingly. It is not Google’s or Amazon’s responsibility to provide unbiased results. Since when does the task of providing objective material rest on the company? Last I checked, almost every advertisement will claim that their company is the best/most popular (when this clearly cannot be the case). Do companies offer unbiased opinion when they lobby for political representation?
Surely, there should be concerns with computer decisions and artificial intelligence in the realm of free speech. Surely, their needs to be some distinction between a program and its creator in terms of speech laws. But we can’t forget that internet companies are still companies just as before. If it is Google’s responsibility to provide 100% objective results by law, then what about the variety of other news sources, companies? The focus on the distinction between humans and computers seems misplaced in his broad declaration. It instead misplaces efforts in defining such a distinction rather than focusing on the issue of the actual content at hand.
