In Defence of the Bright Line – Aggression and Harm in the Digital Age


In Defence of the Bright Line – Aggression and Harm in the Digital Age

By Duncan Whitmore

In a recent discussion concerning the regulation of so-called “Big Tech”, Jeff Deist has raised the question of whether the proliferation of digital technology requires us to reconsider the traditional, libertarian conception of unlawfulness:

The larger question for libertarians is whether their existing conceptions of property rights, harms, torts, and free speech still work in a thoroughly digital era. Principles may not change, but facts and circumstances certainly do. Rothbard’s strict paradigm for what ought to constitute actionable force, especially as discussed in part II of The Ethics of Liberty, requires some kind of physical invasion of person or property. In doing so, Rothbard necessarily distinguishes between aggression (legally actionable) and the broader idea of “harm.” The former gives rise to tort liability in Rothbardian/libertarian law; the latter is part of the vicissitudes of life and must be endured. Theorists like Professor Walter Block and Stephan Kinsella have expanded on this “physical invasion” rule, applying it to everything from blackmail to defamation to (so-called) intellectual property. Aggression against physical persons or property creates a legally actionable claim, mere harm does not.

But Rothbard’s bright-line rule seems unsatisfying in our digital age. If anything, the complexity of modern information technology and the pace of innovation make the case against bright-line tests. For one thing, the sheer scale of instantaneous information ought to inform our view of aggression vs. harm. A single (false) tweet stating “famous person X is a pedophile” could reach hundreds of millions of people in a day, ruining X’s life forever. This is a bit worse than a punch to X’s nose in a bar fight, to put it mildly.

To avoid taking these remarks out of context, it should be noted that the main purpose of Deist’s article is to reject the option of a “sclerotic federal bureaucracy” resolving problems created by digital technology, in favour of evolutionary regulation arising from the adjudication of real cases. As such, one suspects that Deist is thinking out loud so as to raise possible issues rather than constructing a carefully considered argument regarding the scope of actionable harm. Nevertheless, he does reach an unqualified conclusion:

Libertarians and conservatives should broaden their conceptions of tort and contract remedies, and support the evolution of what constitutes harm in a digital era.

Given such certainty, a detailed examination of the matters that Deist raises is warranted.

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The “Big Tech” Problem


The “Big Tech” Problem 

By Duncan Whitmore

“The legislature, were it possible that its deliberations could be always directed, not by the clamorous importunity of partial interests, but by an extensive view of the general good, ought, upon this very account, perhaps, to be particularly careful, neither to establish any new monopolies of this kind, nor to extend further those which are already established. Every such regulation introduces some degree of real disorder into the constitution of the state, which it will be difficult afterwards to cure without occasioning another disorder.”

                  –  Adam Smith, Wealth of Nations

The debate over the power of social media giants such as Twitter and Facebook has intensified this past week when both platforms attempted to restrict the distribution of reports concerning allegations of corruption made against Democrat Presidential nominee Joe Biden. The precise details are unimportant; suffice it to say that the reports are likely to prove damaging to the Biden campaign if disseminated widely amongst the electorate. Both Twitter and Facebook restricted the sharing of the New York Post’s story on the matter, while the White House Press Secretary was locked out of her Twitter account. All of this, of course, takes place against the backdrop of “cancel culture” and the censorship of information (even from authoritative sources) that challenges the official narrative of lockdown and restriction in response to COVID-19.

Although, in this particular instance, the social media companies may end up succumbing to the “Streisand Effect” – the phenomenon whereby any attempt to ban or censor information increases its allure and, thus, leads to a greater degree of exposure overall – those on the right have responded in at least one of two ways to this latest betrayal of the apparent leftist bias that pervades Silicon Valley. Continue reading