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First Amendment in Peril?

eye on the news

First Amendment in Peril?

The Google/Apple duopoly on the mobile Internet seems unconcerned with free expression. August 18, 2017
Technology and Innovation

In the marketplace, traditionally understood, when a company produces a poor product or mistreats its customers, it faces market discipline—new ones come in and steal market share. That’s the theory, at least.

Too bad it’s not true right now, at least not on the Internet.

Google and Apple, with a combined 98 percent market share in mobile-phone operating systems, have banned Gab, an upstart Twitter competitor with a free-speech policy quaintly modeled on the First Amendment itself, from their app stores. Google cited “hate speech” as its reason for exclusion; Gab doesn’t censor. What few people yet understand is that Google and Apple have used their duopoly status to revoke the First Amendment on mobile phones. Because the Internet is now majority mobile, and a growing majority of all web traffic comes from mobile devices, the First Amendment is now effectively dead in the mobile sphere unless policymakers act to rein in the tech giants who serve as corporate gatekeepers to digital speech.  

Twitter ran into controversy last year when it was accused of censoring conservative voices. Gab founders Andrew Torba, an alumnus of Silicon Valley’s prestigious Y Combinator accelerator, and Ekrem Büyükkaya saw a market opportunity for a competitor focused on free speech—not just for conservatives but for dissidents globally. Last August, they launched Gab, a Twitter-like app where, according to company spokesman Utsav Sanduja, “Whatever is permissible under the First Amendment is what Gab allows onto its site.”

Gab grew slowly but has now reached over 200,000 users—a substantial number, though tiny compared with Twitter. It generated modest revenue through a “freemium” model, wherein users could pay to upgrade to a “Pro” level. Gab pulled off a coup by raising $1 million through crowd-funded investment. The company says that it is planning an Initial Coin Offering with its own digital currency based on the Ethereum standard. In short, Gab is a real company, with legitimate founders, a business strategy, revenue, more than 200,000 users, and seven-figure funding.

Apple and Google don’t agree. Gab built an app for Apple’s iOS operating system, but Apple wouldn’t approve it. This means that iPhone and iPad users can’t use the Gab app because users can’t install applications on those devices unless Apple approves them. Gab’s Android app was available through Google’s app store until yesterday, when Google banned it, citing violations of its hate-speech policy. “In order to be on the Play Store, social networking apps need to demonstrate a sufficient level of moderation, including for content that encourages violence and advocates hate against groups of people,” a Google statement read. “This is a long-standing rule and clearly stated in our developer policies.” While Android users can install unapproved apps, it’s a cumbersome process, and being kicked out of the app store reduces the app’s reach.

No doubt, a number of far-right groups have found a home on Gab. I tried Gab myself when it first came out, finding it functionally an interesting mix of Twitter and Reddit, but with too many far-right users for my taste. So I dropped it. Gab also courted trouble with provocative moves like publicly announcing a job offer for James Damore after Google fired him and taunting Silicon Valley after its crowd-funding success. It also uses a green frog as its logo. Gab claims that this is not the controversial Pepe the Frog, identified with the alt-Right, but rather inspired by the plague of frogs from Exodus. Even if this is true, the logo choice seems like a deliberate provocation.

But it’s difficult to credit Gab as a white-supremacist site when its cofounder is a Turkish Kurd and Muslim. Büyükkaya, who says “I’ve never supported Trump for a minute in my entire life,” is concerned about speech repression in his part of the world—for good reason, as Turkey is infamous for its violations of free speech and for locking up journalists. Gab spokesman Sanduja is a South Asian Hindu from Canada.

Gab points out that other major social-media platforms have hosted ISIS activity, and child-porn rings, facilitated drug dealing, and carried live streams of murder, torture, and other crimes. Yet all are still allowed by Google. Google itself actually hired Chris “moot” Poole, founder of the notorious website 4chan, known not just for offensive speech but also for the distribution of hard-core pornography. Police have made multiple child pornography arrests associated with 4chan. There remain multiple 4chan apps in Google’s app store.

At a minimum, Apple and Google’s decisions about offensive app behavior are arbitrary. This is a problem the market can’t easily solve—because there is effectively no market. Both the Apple and Google app stores are private markets owned by those companies, which act as their effective governments. You cannot easily start a new mobile business without their permission. If your app follows the First Amendment, there’s a good chance that you’ll be rejected. Regardless of how one views Gab or any other application or group, two Silicon Valley companies should not be the governors of the mobile Internet—which, in due course, may be indistinguishable from the Internet itself.

The mobile-Internet business is built on spectrum licenses granted by the federal government. Given the monopoly power that Apple and Google possess in the mobile sphere as corporate gatekeepers, First Amendment freedoms face serious challenges in the current environment. Perhaps it is time that spectrum licenses to mobile-phone companies be conditioned on their recipients providing freedoms for customers to use the apps of their choice.

Photo by Justin Sullivan/Getty Images

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