Digital Social Contract

Section 230 and the Anti-Social Contract

By Mary Anne Franks
Monday, February 22, 2021, 10:36 AM

What makes power legitimate? In essence, that is the question that centuries of philosophical and political theorizing about the social contract tries to answer. For much of its history, social contract theory has focused on how to justify the power that governments wield over their citizens—the right of the state to restrain liberty, to use violence, to delegate resources—and what citizens are entitled to in exchange for it. But more recently, the concept of the social contract has also become a common theme in internet law and policy, where it is paradoxically invoked to reject the legitimacy of government power in favor of self-governance. But while the techno-libertarian view of the social contract is on the surface at odds with the traditional view of the social contract, in practice they produce the same result: the advancement of wealthy, white, and male interests disguised in terms of consent and reciprocity.

In this paper, I argue that courts’ sweeping interpretation of Section 230 of the Communications Decency Act assures powerful private actors that the government will not interfere when they disregard, encourage, or profit from the exploitation and abuse of vulnerable communities. In doing so, Section 230 serves as an anti-social contract, replicating and perpetuating long-standing inequalities of gender, race, and class. The power that tech platforms have over individuals can be legitimized only by rejecting the fraudulent contract of Section 230 and instituting principles of consent, reciprocity, and collective responsibility.

The paper is also available here.