The First Amendment in the Second Gilded Age

Privacy and Security, Networks, the Internet, and Cloud Computing and Internet

Article Snapshot


Jack M. Balkin


Buffalo Law Review, Vol. 66, pp. 979-1012 (2018)


Social media firms give users freedom of speech in exchange for access to personal data. The digital public sphere depends on the business models of firms like Google and Twitter.

Policy Relevance

Digital companies should be treated as information fiduciaries. These firms should act in good faith and avoid manipulating users of digital services.

Main Points

  • The “First Gilded Age” lasted from the 1870s up to the early 1900s, and was the age of industrial capitalism; the “Second Gilded Age” took off in the 1990s, and is the age of digital capitalism.
  • In considering free speech in the digital age, the basic question is this: How does our political and economic system pay for the digital public sphere?
    • Today, the public sphere is funded by firms that make money from personal data.
    • The implicit bargain is that users get freedom to speak in exchange for submitting to surveillance and manipulation by social media firms and advertisers.
  • The First Amendment is increasingly irrelevant to freedom of speech, as our ability to speak online depends on communications infrastructure run by private parties, not by the state.
  • The infrastructure of digital free expression today is the same infrastructure used for digital surveillance; if government were to provide this infrastructure, it would become the infrastructure of government surveillance.
  • The implicit bargain of social media gives rise to three key issues:
    • Social media firms govern communications without due process.
    • Governments target social media firms to regulate users’ speech and data.
    • Free services are offered in exchange for data.
  • In the Cambridge Analytica scandal, a researcher on Facebook's platform for scientists turned sensitive data over to Cambridge Analytica, a for-profit political consulting firm.
    • Cambridge Analytica used the data to serve targeted political ads.
    • The scandal arose from the fact that third parties had gained access to sensitive and detailed personal data, and Facebook considered this an ordinary business practice.
  • Firms like Facebook, Google, and Microsoft should be recognized as information fiduciaries toward end-users; such firms are properly considered fiduciaries because:
    • These companies have special expertise.
    • They know more about their users than the users know about them.
    • End users are vulnerable to these firms because of information asymmetry.
    • End users must trust these firms to receive benefits from them.
  • An information fiduciary has duties of care, confidentiality, and loyalty to its users; when a firm like Facebook gives third parties access to its users’ data, these third parties must take on the same duties.

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