The Deciders: The Future of Privacy and Free Speech in the Age of Facebook and Google

Privacy and Security and Internet

Article Snapshot


Jeffrey Rosen


Fordham Law Review, Vol. 80, No. 4, 2012


Private companies make key decisions affecting privacy, or deciding what content appears online. Public opinion will often determine whether the courts will rule that some policies are unconstitutional.

Policy Relevance

Repressive governments might be more dangerous to our rights online than private firms. But the power of private firms over Internet content is troubling.

Main Points

  • Imagine if Google decided to live-stream footage from all the world’s surveillance cameras, all the time.
    • If the government made use of this data, the Supreme Court could declare such ubiquitous surveillance unconstitutional.
  • In 2012, the Supreme Court ruled that the police could not plant a GPS tracker on a suspect’s car for an entire month; a key factor was that the tracker was installed on the suspect’s property.
  • Constant surveillance by the government violates rights of autonomy recognized in many constitutional cases.
  • Public consensus that we have a right to privacy in public places would make it more likely for the Supreme Court to declare constant surveillance unconstitutional.
    • The backlash against body scanners in airports that produced a detailed image of traveler’s naked bodies illustrates this.
  • The “right to be forgotten” threatens free speech if it gives an individual the right to demand that truthful but embarrassing facts about herself be deleted.
  • The Deputy General Counsel at Google was called “the Decider” because she made many critical decisions about online content; often, her decisions supported free speech rights.
  • Repressive governments have tried to suppress online dissent, and this might be worse than for Google or Facebook to make such key decisions.
  • Some online services let users flag content for removal if it is “promoting terrorism;” this trend has troubling implications for free speech.


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