Big Tech Needs Better Law | Opinion

This week, British feminist blogger Kellie-Jay Keen received a surprise email from Zoom: "We've detected an issue with your account that violated our Terms of Service and Community Standards" regarding "hateful conduct." The email primly informed her that "there is no place on Zoom" for anyone who threatens or harasses others on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability or serious disease.

The dummy text concluded with an ominous warning likely to strike panic in any mother of school-age children: "Please note that further violations may result in the permanent suspension of your Zoom account."

What was Keen's "hateful conduct?" Zoom never said—as these tech companies rarely do. The purpose of the tech giants' Star Chamber is not to inform, but to instill fear. To encourage self-censorship. To persuade you to reform yourself—so that the overlords have no cause to visit you once more.

Keen's work is controversial: She is among the best known of Britain's defenders of women's sex-based rights. In 2018, she raised money to put up a series of billboards in Britain that simply stated: "Woman: noun, adult human female." It was clever bait—a deliberate attempt to draw in gender ideologues with a dictionary definition, to expose their extremism and the breadth of their intolerance. It did the trick. Activists claimed that the definition amounted to "hate speech." The billboards were taken down, and Keen became a feminist hero and lightning rod for the gender activists.

As host of the popular feminist podcast, "Woman by Definition," where she goes by the name "Posie Parker," Keen conducts her interviews over Zoom and livestreams them to her YouTube channel. One of her detractors may have noticed the company's insignia on her videos and informed on her to Zoom.

But here's the interesting thing about this latest Big Tech escalation of the censorship game: Zoom isn't a content host. It's more like a visual telephone that allows her to speak to her mother, who has been in isolation since the start of the pandemic, and friends she cannot visit in person. It permits her four children to attend school. It is arguably closer to a common carrier, like an airline, than a website—insofar as it transports us across the globe. If Netflix is like a movie theater, highly selective about which movies it shows, and YouTube is like public-access television, then Zoom is much closer to a telephone. It isn't supposed to care about the content of our calls.

What's next? Could Apple disable Keen's iPhone's operating system? Could Norton refuse virus protection for the troublemakers whose views don't click into place? Is there never to be any recourse against Big Tech companies who have bought up all the real estate where our work occurs, the public spaces where we meet our friends, and who hold our most private and sensitive data? (Truly, the ability to blackmail any of us resides on their servers.) Build your own Zoom, is it?

Amazon facility in France
Amazon facility in France ERIC PIERMONT/AFP via Getty Images

Another alarming story from this week: Amazon deleted Ryan Anderson's book, When Harry Became Sally, a conservative exploration of the transgender movement. The hardback, the paperback, the audio and even the used copies sold through third parties suddenly disappeared from the "world's largest bookstore." That same day, Apple removed the two-year-old book from its own offerings. Also on that very day: Twitter determined that the book's cover amounted to "offensive content."

The apparent coordination by Amazon, Apple and Twitter might seem like a straightforward violation of the Sherman Antitrust Act, which prohibits agreements in "unreasonable restraint of trade" that harm consumers. (Perhaps the cartel-like behavior spooked Apple's lawyers—Apple reinstated the book within a few hours.) Here was a harm to consumers, who would likely be hit with higher prices if they tried to buy a hard-to-find book. Here was a literal "restraint of trade."

But in 2007, in Bell Atlantic v. Twombly, the Supreme Court held that "parallel conduct and bare assertion of conspiracy" is not sufficient to establish "illegal agreement." In Twombly, the Court held that plaintiffs needed to present proof of coordination: a written agreement, a smoking gun. Looking back, you can almost hear the tech industry laughing.

What tech companies would ever produce such an agreement? Why would there ever be a need for one? Hatching a plan to restrain trade takes time, and tech executives needn't waste it. Instantly, they can (and do) monitor each other's conduct. Their values are already in perfect alignment. Most are even conveniently located in the same town. They stand ready to threaten and banish whichever ideas displease them—quicker than it takes to type out the first incriminating letters of a "plan."

Like a school of fish, these firms move seamlessly together, cleverly darting in the same direction. Lawyers representing those who have been injured by their censorship—Parler's lawyers, for example—hunt in vain for the proof of coordination that the law demands but which Big Tech does not require and is too smart to leave behind.

Our clumsy laws—which never envisioned a force more powerful or repressive than the government—have little purchase in this sleek new world where, in an instant, books vanish from shelves. Videos are deleted from YouTube's theater. Troublesome feminists, like Kellie-Jay Keen, are booted off Twitter. All without explanation or recourse. What was Kellie-Jay's sin? Twitter never informed her. "'One day, I just couldn't log in," she told me. "But I'm pretty sure I know why that might be. You know, basically saying, 'women don't have penises.' You know, same old, same old."

If she'd been excluded from a traditional common carrier that the law recognized, like an airline, someone like Keen might have a case. If the government had explicitly directed her expulsion from Zoom, and Keen were a U.S. citizen, she'd have a case then, too. Instead, the new administration airily issues orders on "gender identity," signaling the view it favors, and Big Tech arrives, lightning-fast, at the dissident's door. Happy coincidences abound. And the law keeps mum.

Abigail Shrier is author of Irreversible Damage: The Transgender Craze Seducing Our Daughters.

The views expressed in this article are the writer's own.