SMU Law Review


Online intermediaries—search engines, social media platforms, even e-commerce businesses—are increasingly required to make critical decisions about free expression, individual privacy, and property rights under domestic law. These requirements arise in contexts that include the right to be forgotten, hate speech,“ terrorist” speech, and copyright and intellectual property. At the same time, these disputes about online speech are increasingly borderless. Many laws targeting online speech and privacy are explicitly extraterritorial in scope. Even when not, some courts have ruled that they have jurisdiction to enforce compliance on a global scale. And governments are also demanding that platforms remove content—on a global scale—that violates platforms’ terms of service, leading to the deletion of information that is legal in one jurisdiction and illegal in the next.

Existing accounts of platforms’ governance role are incomplete and unsatisfying. These accounts tend to neglect the impact of cross-border and transnational pressures upon company policies that affect user rights. Observers have also tended to mischaracterize or underspecify the kinds of action that platforms take as governments outsource certain decision-making functions and attempt to extend domestic law and norms beyond territorial limits. The Article contends that platforms are operating as privately owned bureaucracies charged with overseeing and implementing complex statutory and constitutional schemes. Platforms are engaged in both rulemaking and adjudication: they develop and promulgate regulations, statements of policy, and guidance that govern free expression and privacy online, and adjudicate disputes concerning those fundamental rights. That these governance mechanisms rely on private actors to be carried out does not, by itself, suggest that they are not legitimate. But basic principles of administrative law—transparency, participation, reason-giving, and review—remain essential to ensure that platform governance is accountable to the public. These protections are largely, if not entirely, absent from the status quo, due in part to longstanding industry practice—and in part to legal obstacles that prevent platforms from instituting the kinds of rigorous safeguards that are urgently needed.