Policymakers' stated ideals for digital democracy often uphold utopian standards that depart from the empirical reality
This study provides a comparative survey of policy-making discourse in the United Kingdom and the United States from 2016 to 2020 around digital threats to democracy. Through an inductive coding process, it identifies six core ideals common in these two countries: transparency, accountability, engagement, informed public, social solidarity, and freedom of expression. Reviewing how these ideals are constructed in policy-making documents, the authors find differences in each country's emphasis, inconsistencies in how some democratic ideals are evoked and promoted, conflicts between different democratic ideals, and disconnects between empirical realities of democracy and policy-making discourse. There is a lack of clarity in what social solidarity, engagement, and freedom of expression mean and how they should be balanced; conceptions of an informed public are deeply fraught, and in tension with other ideals. We argue that policy-making discourse is often out of step with the growing literature which suggests that political conflicts between social groups, right-wing extremism, and antidemocratic actions increasingly taken by elites and parties are at the root of growing democratic crises. This state of policy-making discourse has important implications for attempts to pursue regulation and suggests the need for further reflection by policymakers on the democratic ideals they are solving for.
The editorial ethics of Facebook and Google remain unregulated, despite clear evidence they arbitrate political content
The question of how Facebook and Google make and justify decisions regarding permissible political advertising on their platforms is increasingly important. This paper focuses on the U.S. case and presents findings from interviews with 17 former social media firm employees (n = 7) and political practitioners (n = 11). THe authors also analyze emails (n = 45) exchanged between Facebook government and elections staffers and two campaigns, a U.S. gubernatorial (2017) and presidential campaign (2016), regarding the platform’s policies in the context of paid speech. In addressing questions about Facebook’s and Google’s processes and policies regarding paid political content, the rationales for them, and the ability of campaigns to contest decisions, this study shows how while Facebook and Google resist being arbiters of political discourse, they actively vet paid content on their platforms. These platforms differ with respect to how and what decisions they make in the context of paid speech and within each company there are active and ongoing debates among staffers about speech. These debates at times take place in consultation with political practitioners and often occur in the context of external events. Across these firms, policies regarding speech evolve through these internal debates, appeals by practitioners, and outside pressure. At the same time, both Facebook and Google make decisions in often opaque ways, according to policies that are not transparent, and without clear justifications to campaigns or the public as to how they are applied or enforced. This limits options for political practitioners to contest regulation decisions. Finally, the authors conclude by arguing for the need for expanded capacities for political practitioners and the public to exercise voice around the content decisions that these firms make, and for firms to create more robust institutional mechanisms for incorporating it.
Balancing transparency and privacy in court records requires transferring responsibility from court staff to litigants
Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing as the courts move from the paper-based world of the twentieth century to an interconnected, electronic world where physical and temporal barriers to information are eroding.
These changes are prompting courts — and increasingly, legislatures — to reconsider public access to court records. Although this reexamination can be beneficial, a number of courts are abandoning the careful balancing of interests that has traditionally guided judges in access disputes and instead are excluding whole categories of information, documents, and cases from public access. This approach, while superficially appealing, is contrary to established First Amendment principles that require case-specific analysis before access can be restricted and is putting at risk the public’s ability to observe the functioning of the courts and justice system.
This article pushes back against the categorical exclusion of information in court records. In doing so, it makes three core claims. First, the First Amendment provides a qualified right of public access to all court records that are material to a court’s exercise of its adjudicatory power. Second, before a court can restrict public access, it must engage in a case-specific evaluation of the privacy and public access interests at stake. Third, per se categorical restrictions on public access are not permissible.
These conclusions do not leave the courts powerless to protect privacy, as some scholars assert. We must discard the notion that the protection of privacy is exclusively the job of judges and court staff. Instead, we need to shift the responsibility for protecting privacy to lawyers and litigants, who should not be permitted to include highly sensitive information in court files if it is not relevant to the case. Of course, we cannot eliminate all private and sensitive information from court records, but as long as courts continue to provide physical access to their records, the First Amendment does not preclude court administrators from managing electronic access in order to retain some of the beneficial aspects of practical obscurity. By minimizing the inclusion of unnecessary personal information in court files and by limiting the extent of electronic access to certain types of highly sensitive information, we can protect privacy while at the same time ensuring transparency and public accountability.