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Digital Switzerlands

November 15, 2018 12:00 pm

U.S. technology companies are increasingly standing as competing power centers, challenging the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, and also increasing public demands for the companies to protect users from governments. The companies’ power raises serious questions about how to understand their role, including suggestions that they are public utilities, information fiduciaries, surveillance intermediaries, or speech governors. In a recent article, Kristen Eichensehr, assistant professor at UCLA School of Law, considers another possibility, one suggested by the companies themselves: that they are “Digital Switzerlands.”

The companies’ claim encompasses two ideas: parity with countries and neutrality. In her article, Eichensehr critically evaluates the plausibility of these claims and explores how the companies differ from other powerful private parties. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. and foreign governments, but it also means that the companies do not always counter governments. Understanding the relationship between companies, users, and governments as triangular, not purely hierarchical, reveals how alliances among them affect the companies’ behavior toward governments. But the companies’ efforts to maintain a posture of neutrality also carry a risk of passivity that may allow governmental attacks on users to go unchallenged.

Eichensehr proposes several considerations for assessing the desirability of having companies be Digital Switzerlands. Does the rise of the companies as competing power centers benefit individual users? Does the companies’ lack of democratic attributes render them illegitimate powers? If the companies claim the benefits of the sovereign analogy, should they also be held to the public law values imposed on governments, and if so, how? And if there is value in the companies acting as Digital Switzerlands, how can this role be entrenched? Her article offers preliminary answers to these questions.

For more information visit: https://www.ischool.berkeley.edu/events/2018/digital-switzerlands

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