Here, in backward regions without industries and political organizations,
where violence was given more latitude than in any Western country, the
so-called laws of capitalism were actually allowed to create realities […]
The secret of the new happy fulfilment was precisely that economic laws
no longer stood in the way of the greed of the owning classes.
Hanna Arendt, The Origins of Totaliarianism
Legally speaking, the existence of the virtual paradeisos depends to a large extent on the gray area in which cyberspace exists. In the words of Eric Schmidt, former CEO of Google, “Hundred of millions of people are, each minute, creating and consuming an untold amount of digital content in an online world that is not truly bound by terrestrial laws […] This is the Internet, the world’s largest ungoverned space.”1 This liminarity of the virtual world, together with the typically neoliberal attitude that views with hostility any kind of regulation by government entities, has forged a disdainful attitude towards the law among surveillance capitalists that has allowed them to establish their state of exception (10.4, 10.6). Cyberspace became a sort of Wild West 2.0 where the first and the strongest claim the right to a territory without any concern for morality or the consequences of their actions. So far the advances of surveillance capitalism have also been protected by the bureaucratic sluggishness of democratic institutions.
Unsurprisingly, one of Big Tech’s main arguments to justify and defend its incursions and virtual colonies is freedom of expression. This tactic, inherited from the traditional media (9.14, 9.17), rests on a “free speech fundamentalism” that privileges “corporate action as ‘speech’ deserving of constitutional protection,” and sees any kind of regulation or bureaucracy as archaic and backward forms of domination that want to control the inevitable advances of technology. At the heart of this argument is Section 230 of the U.S. Telecommunications Act of 1996 which states that:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Within the framework of this law, an online forum—regardless of the content posted on it—cannot be judged in the same way as a publisher, since it has not participated in any way in editing the content posted by its users. Among the antecedents to Section 230 is a defamation suit against CompuServe, one of the first three Internet providers, which was dismissed when the judges found that this company was comparable to a public library, bookstore or newsstand, simply presenting or distributing the information without participating in it.
However, the accumulation logic of surveillance capitalism alters the legal landscape of section 230. Today’s social networks and search engines should not be covered by this statute, because rather than neutral forums that merely publish the information produced by their users, they are sophisticated networks dedicated to the regulation and editing of content, the generation of advertisements and the extraction of data. We are not dealing with a public structure such as a library that serves as a public domain repository, but with the largest espionage agencies in history. Just as the outdated First Amendment protects mediated voyeurism by protecting and promoting an increasingly sensationalist media establishment (9.14), section 230 “once crafted to nurture an important new technological milieu” says Zuboff, “is now the legal bulwark that protects the asymmetric wealth, knowledge, and power of a rogue capitalism.”4
On the other hand, Section 230 protections have given rise to online forums like 4chan and 8chan (now 8kun) that have gradually become hotbeds of racial hatred and political extremism and have served as home to toxic movements like Alt-right and QAnon, catapulting the ultra-right populist conspiracy rhetoric across the globe. The kind of free speech promulgated by these virtual forums, with no purpose beyond itself, devoid of limits, of a name or a face (10.10), is nothing but a caricature of freedom, the freedom to be intolerant and gullible.
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