Once upon a time, in an era not too long ago, scholars and cyber theorists understood the Internet as a network that was decentralized, free, and open (Lessig Reference Lessig1999; Wu Reference Wu2003; Kelty Reference Kelty2005). Indeed, during the early Internet era, much of this scholarship focused on the “positive effects and promise” of digital technologies (Zittrain Reference Zittrain2019, 1). As far back as the 1980s, these characteristics—decentralization, freedom of information access, and openness—caused scholars to imagine the democratic potential of a network that could level the communications playing field (Stallman Reference Stallman1985; Turner Reference Turner2006; DeNardis Reference DeNardis2009) and make speech and association readily accessible to poor and underprivileged communities (Volokh Reference Volokh1995). Yet, at the same time, while understanding the network’s democratic potential, some scholars recognized the socio-legal challenges that the Internet presented (Vaidhyanathan Reference Vaidhyanathan2004). By suggesting that the Internet’s future might also present certain threats, harms, and dilemmas, these scholars offered a more tempered outlook when theorizing the future of a free and open Internet (Lessig Reference Lessig2006; Zittrain Reference Zittrain2008; Morozov Reference Morozov2011).
Considering these disparate perspectives, what insights does socio-legal literature on digital law and culture offer to address how we arrived at our contemporary Internet age and the existential concerns that it elicits from developments such as online disinformation?Footnote 1 Moreover, given that much of its current regulation stems from the Internet’s founding era, what does examining regulation from that era—along with subsequent societal and technological trends—suggest about how we remember Internet openness? This review essay examines the Internet’s regulatory and cultural history to explore how the open values of the information age gave way to our current era of online disinformation. To do so, I survey the literature in both law and the social sciences to interrogate the regulatory and sociocultural dynamics that have shaped the development of our global telecommunications network. I reflect on two early works—one from law and one from anthropology—that have advanced discourse and scholarship on Internet openness. For regulatory insights, I draw from cyber theorist Lawrence Lessig’s (Reference Lessig2006) Code: and Other Laws of Cyberspace, Version 2.0, and for sociocultural perspectives, I employ anthropologist Christopher Kelty’s (Reference Kelty2008) Two Bits: The Cultural Significance of Free Software. Taken together, these works examine openness from two distinct angles: Lessig provides a regulatory appraisal of openness during the information age, while Kelty analyzes the political and sociocultural influence of free software, which stems from openness. These works, combined with related Internet scholarship, provide important insights into how we arrived in our current disinformation era.
The information superhighway
At the dawn of the Internet era, in the mid-1990s, scholars and cyber theorists envisioned the Internet as a democratizing telecommunications platform with the potential to advance a more egalitarian society. The reasons for the Internet’s democratic promise stemmed from its foundational values. These values are built upon a decentralized, global telecommunications network that features individual user freedom, freedom of information access, and the promotion of innovation and competition (DeNardis Reference DeNardis2009). These values have helped facilitate global communication for Internet users and have ushered in an unprecedented era of digital sharing of everything from news, music, and art to audio-visual works and cultural property. Since the Internet’s early years, freedom of information access has remained at the core of this sharing, so much so that in the 1990s “the information superhighway” signaled the emergence of a new, global information age.
Among these foundational values, “openness” was the Internet’s conceptual linchpin. At its core, the essence of openness is that the global telecommunications network should be freely accessible to the public. Conceptually, openness is responsible for the building, sharing, linking, and connecting that the Internet facilitates. Consisting of two aspects—ideological and technical—the core value of Internet openness has “created the boom that gave birth to the Internet that we now know” (Lessig Reference Lessig2006, 146). This boom began in the mid-1990s when the Internet was still a toddler, and the egalitarian promise of its open values was at its peak. Consistent with the values of openness, the Internet regulations that came late in that decade sought to advance innovation in the fledging online world. These regulations would have a lasting influence on Internet governance and the evolution of technological openness.
Ideologically speaking, openness represents the libertarian views and values upon which the Internet was founded (Kelty Reference Kelty2005; Lessig Reference Lessig2006). The connection between openness and libertarian values is significant because it suggests a focus on individual rights in cyberspace, a lack of online speech gatekeepers, and freedom from government censorship (Barlow Reference Barlow1996; Lessig Reference Lessig2006; Zittrain Reference Zittrain2019). The open ideology is demonstrated through the “free software movement” (aka “open-source software” or simply “open source”)Footnote 2 —a digital movement that advocates for free (rather than proprietary) access to computer software. The free software movement flourished—in places like the United States and Brazil, among other regions—during the Internet’s early years from the mid-1990s to the early 2000s (Mizukami and Lemos Reference Mizukami, Lemos and Shaver2008).
From a technical standpoint, openness is expressed via the technical structure or architecture of the Internet. This architecture is guided by the Internet’s regulatory framework, or what Lessig (Reference Lessig1999) once referred to as “code.” Network neutrality—the ideal that all network traffic be treated equally—is an example of the technical aspect of Internet openness (Wu Reference Wu2003). In this essay, I argue that remembering the foundational history of Internet openness—and its dual aspects—sheds light on matters of law, technology, and politics, which sit at the heart of the contemporary digital era, and that the evolution of openness has led us from the free access ideals of the Internet’s foundational age to the renewed proprietary conventions of our current era of online disinformation. To be certain, proprietary conventions in the information age were primarily concerned with intellectual property rights. However, as I discuss below, in our contemporary disinformation era, the capitalist paradigm now concerns itself with ownership and control of Internet user data.
Internet openness in the information age
From an ideological perspective, Richard Stallman (Reference Stallman1985) is a pioneering figure of Internet openness. Stallman, a computer activist and cyber theorist, has been a key advocate of free software since the early 1980s when he founded the Free Software Foundation—which sought to advance free software norms in the burgeoning Internet age—and the GNU movementFootnote 3 —which developed the free and open-source operating system GNU/Linux. In the late 1990s and early 2000s, the “free”Footnote 4 GNU operating system presented a direct challenge to Microsoft’s Windows. Because the free software movement offers a counter to the more proprietary norms of the intellectual property (IP) status quo, the ideology behind free software appears to be in tension with the traditional capitalist paradigm (Stallman Reference Stallman1985). As Kelty (Reference Kelty2008, 1) notes, the free software movement “seem[s] to violate economic logic and the principles of private ownership and individual autonomy.” As a counter to the capitalist paradigm, then, free software is about making things “publicly and freely available to everyone” (Kelty Reference Kelty2008, xi). Thus, in the early Internet era, free software systems like GNU/Linux offered alternatives that challenged the capitalist paradigm of the status quo.
During the information age, the tensions between the norms of free software and those of the IP status quo were demonstrated through attempts to advance a “commons”—“resources that anyone can use … without seeking the permission of anyone else” (Lessig Reference Lessig2006)—in cyberspace. Based on the free and open ideology adopted by Stallman and others, the idea of an Internet commons came to widespread notoriety in the United States through an innovative nonprofit initiative known as Creative Commons. Co-founded by Lessig, nonprofits like Creative Commons reserve certain rights for the IP owners/authors, while leaving other rights—rights that would traditionally be held privately—to the public (Lessig Reference Lessig2006). By offering rightsholders this option, Internet commons like Creative Commons serve as a bridge between open ideals and those of proprietary status quo.
As Richard Stallman was lauding the merits of openness to tech geeks and computer activists, scholars across both law and the social sciences explored the duality of openness (Lessig Reference Lessig2004; Kelty Reference Kelty2005; DeNardis Reference DeNardis2009; Coleman Reference Coleman2013). For example, Kelty (Reference Kelty2005, 187) conducted research on the openness duality in what he termed a study “of the Internet itself.” He employed computer “geeks” as his interlocutors to chronicle both the legal and ideological aspects of openness. For Kelty, “geeks” is an inclusive term that represents developers concerned with the technical and legal conditions of the Internet. Geeks often spend their time coding, building, redistributing, or hacking computer software code and network technologies (Kelty Reference Kelty2005). Perhaps more importantly to Kelty’s (Reference Kelty2008, 28) analysis is his suggestion that geeks are a form of “recursive public,” which he defines as “a public that is constituted by a shared concern for maintaining the means of association through which they come together as a public. Geeks find affinity with one another because they share an abiding moral imagination of the technical infrastructure, the Internet, that has allowed them to develop and maintain this affinity in the first place.”
Because the techniques and design principles they employ to recursively network and create free software require open access within their public,Footnote 5 the geeks’ shared ideology is fundamentally built upon the concept of openness. Within these publics, geeks develop their open ideologies via their work on free software. More than just mere communities, according to Kelty (Reference Kelty2008, 7), recursive publics serve “as a check on other constituted forms of power—like states, the church, and corporations—but [they] remain independent of these domains of power.” Through advancing free software, then, Kelty suggests that recursive publics highlight the political and democratic significance of openness (6–8).
Kelty’s study sheds light on the Internet “geeks” and “recursive publics” that have adopted Stallman’s vision of openness and free software advocacy, which came into prominence during the early Internet era. Similar studies from that era examine openness through the lens of authorship (Philip Reference Philip2005), politics (Vaidhyanathan Reference Vaidhyanathan2004; DeNardis Reference DeNardis2009; Chan Reference Chan2014), and culture (Lessig Reference Lessig2004; Turner Reference Turner2006). Moreover, following legal scholarship that commonly refers to online content as “speech” (Balkin Reference Balkin2018; Klonick Reference Klonick2018; Eichensehr Reference Eichensehr2019), early open-source advocates also labeled the free software they created as speech (Coleman Reference Coleman2009). As anthropologist Gabriella Coleman (Reference Coleman2009, 448) suggests, geeks claim that “source code should be protectable speech under the U.S. Constitution and the constitutions of other nations.” For Coleman, the speech moniker challenges the theory of software as “property” and demonstrates both the legal and political savvy of geeks and free software developers in their attempts to advance the open ideology in cyberspace.
While these studies examine how open Internet advocacy evolved in the United States, others indicate how certain governments in the Global South embraced the free software approach. For instance, Aaron Shaw (Reference Shaw2011) examined government support for free and open-source software strategies throughout Brazil’s public sector during the first presidential administration of Luis Ignácio Lula da Silva (2003–10). Shaw’s work traces how technocratic political experts in the Lula administration embraced open-source tech policies, which countered the traditional, more proprietary IP status quo of that era.Footnote 6 Elsewhere, I have discussed how Brazil’s open-source leanings from the Lula era provided the historical underpinnings of that country’s 2014 adoption of an open Internet bill of rights (Omari Reference Omari2020).
In the legal academy, scholars have explored analogous concepts such as the “public domain” (Samuelson Reference Samuelson2006; Boyle Reference Boyle2008), “freedom to tinker” (Samuelson Reference Samuelson2016), and “relational innovation” (Chon Reference Chon2024) that openness facilitates. However, over two decades ago, while the Internet was still emerging, it was Lessig who pursued an influential line of research and advocacy about the virtues of a free and open Internet. In the late 1990s and early 2000s, Lessig authored several important books on Internet openness. The first of which was his classic Code: And Other Laws of Cyberspace (Lessig Reference Lessig1999). In the second edition of that work, Code Version 2.0, Lessig (Reference Lessig2006, 4–5) analogizes “code”—regulation of the hardware and software that makes cyberspace what it is—to a kind of Internet constitution.Footnote 7 Like Stallman and other early Internet geeks, Lessig recognized that open code represented both the Internet’s architecture and values. Because the code of this era was based upon those values, “openness was responsible for much of the early [Internet’s] growth” (Lessig Reference Lessig2006, 146).
While Lessig suggested that the Internet was founded upon—and, indeed, thrived because of—open values, he recognized that the Internet’s boom would inevitably draw the attention of the capitalist paradigm—for example, Microsoft and its proprietary Windows operating system. The increase in online commerce would, in turn, elicit the pull of politics and regulatory attention from governments. For Lessig, these external factors—that is, commerce, politics, and governments—meant that the free access model of Internet openness might soon become unsustainable. By challenging the capitalist paradigm, he argued that openness helped facilitate a “cyberspace of anarchy” and that the power of commerce and governments might shift the regulatory nature of code from the openness of its founding to a type of code that provided more governmental control (Lessig Reference Lessig2006, 5). He suggested further that the “[g]overnment’s power to regulate code, to make the behavior within code regulable, depends in part on the character of the code. Open code is less regulable than closed code; to the extent that code becomes open, government’s power is reduced” (152). If this scenario of increasing governmental power over the Internet (that is, closed code) came to fruition, he posited that preserving essential liberties (for example, speech) in the online realm would become more challenging.
As an astute observer of code, Lessig understood that its nature was not absolute. Thus, the “open” versus “closed” debate was not a consummate binary as the nature of code and the networks it regulates was likely to vary in measure across time and space. Moreover, Code was a product of the information age, an era that predated social media. As I discuss below, the norms of online governance began to shift once social media companies came into existence. To be sure, in the Internet’s founding era, the primary focus of the capitalist paradigm was the protection of IP rights. Since the emergence and subsequent global hegemony of social media, however, the online status quo now has strong interests in mining the data of its many users. During the information age, regulatory efforts to advance openness unwittingly helped facilitate this trend.
Early Internet regulation
In 1996, as demand for the Internet was beginning to heighten across the United States, Congress enacted legislation that would have enduring effects on the ideal of Internet openness. That year, the US Congress enacted the Communications and Decency Act (CDA).Footnote 8 The CDA was, in large part, a response to growing concerns over Internet pornography (Bilstad Reference Bilstad1997). During this time, the Internet was increasingly becoming a social phenomenon and had gained considerable popularity among the domestic populace. With this new technology, pornography became readily available on the open and, at that time, unregulated Internet. Accounts in both popular media and academic scholarship helped facilitate a moral panic over porn’s online availability and, specifically, its effect on minors (Lessig Reference Lessig2006). As a response to public outcry, Congress enacted the CDA with the aim of protecting minors from “obscene or indecent” material, which the Act criminalized.
The fact that Congress passed such a broadly framed law is puzzling as its members would surely know that such a blanket “content-based” speech prohibition would not pass strict constitutional scrutiny. Indeed, according to Lessig (Reference Lessig2006, 249), it was a “law of extraordinary stupidity, the CDA practically impaled itself on the First Amendment.” The following year, in Reno v. American Civil Liberties Union, the US Supreme Court struck down the “indecency” provisions of the CDA as facially overbroad.Footnote 9 But the remnants of the CDA have had lasting effects on the evolution and governance of the Internet. To be certain, Section 230 is the prime remnant of the CDA. While the core of the CDA made it illegal to knowingly distribute indecent online material to minors (those provisions struck down in Reno), Section 230 was essentially a throw-in—a late amendment that incentivized Internet intermediaries to moderate the offensive content posted to their sites. Section 230 was a response to two earlier New York court cases, which had the potential to negatively impact the development and innovation facilitated by Internet openness (Klonick Reference Klonick2018; Goldman Reference Goldman and Frosio2020).
In the first case, Cubby, Inc. v. Compuserve, a New York court found that Compuserve was not liable for defamatory material that a third party posted to Compuserve’s online forums.Footnote 10 The court noted that Compuserve did not review any of that content, making it more like a distributor rather than a publisher. As legal scholar Kate Klonick (Reference Klonick2018, 1604–5) aptly notes, in tort law, “this distinction is important because while publishers and speakers of content can be held liable, distributors are generally not liable unless they knew or should have known of the defamation.” In the second case, Stratton Oakmont, Inc. v. Prodigy Services, Co. (1995), a court found Internet intermediary Prodigy liable as a publisher because it moderated its online message boards.Footnote 11 Collectively, these two cases appeared to threaten growth and innovation on the infant Internet. Again, as Klonick (Reference Klonick2018, 1605) explains, “[r]ead together, the cases seemed to expose intermediaries to a wide and unpredictable range of tort liability if they exercised any editorial discretion over content posted on their sites. Accordingly, the cases created a strong disincentive for online intermediaries to expand business or moderate offensive content and threatened the developing landscape of the internet.”
As a response to these two cases, Section 230 sought to preserve the ideals of Internet openness by incentivizing and protecting Internet intermediaries in their efforts to moderate and, when necessary, block offensive content posted to their platforms. As noted, Section 230 survived the court’s rejection of the CDA’s indecency provisions in Reno, but it was a Fourth Circuit opinion decided on the heels of Reno that solidified Section 230 as a mainstay in protecting Internet intermediaries in their role as “Good Samaritans” (Klonick Reference Klonick2018, 1602).
From its extraordinary facts to its considerable impact, Zeran v. America Online, Inc. (1997) is a pivotal case in Internet law lore.Footnote 12 Offering a prelude to the “doxxing”Footnote 13 of our contemporary disinformation era, an anonymous AOL subscriber made several posts to an AOL message board claiming that the plaintiff, Zeran, was selling disparaging T-shirts regarding the bombing of the federal building in Oklahoma City. The posts included Zeran’s phone number, which exposed him to innumerable malicious phone calls and death threats. Zeran attempted to hold AOL liable for these defamatory posts.
Zeran argued that the text of Section 230 only eliminated publisher liability and not distributor liability for intermediaries like AOL. The Fourth Circuit disagreed and held that Section 230 “precluded not only strict liability for publishers but also intermediary liability for distributors such as website operators [like AOL]” (Klonick Reference Klonick2018, 1606). As the court in Zeran noted, Section 230 seeks to urge “service providers to self-regulate the dissemination of offensive material over their services.”Footnote 14 Moreover, in expounding on the purpose of Section 230, the Fourth Circuit stated: “Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech.”Footnote 15
After the court’s interpretation of Section 230 in Zeran, Klonick (Reference Klonick2018, 1604–9) suggests that the statute serves two competing purposes: (1) encouraging Internet platforms to self-police the offensive material on their sites (that is, serve as online “Good Samaritans”) and (2) promoting both free speech and the development of commerce on the Internet (see also Goldman Reference Goldman and Frosio2020). Under Zeran, because these purposes are consistent with the Internet’s foundational values of promoting innovation and information access, which are fundamental to the concept of openness, Section 230 advances the premise of Internet openness. But, since the intermediary immunity provided by Zeran predated the ascendance of social media, the enduring significance of Section 230 and its implications for Internet openness would not be fully grasped until years to come.
The rise of social media
In 1997—ironically, just as the Fourth Circuit was determining the scope and purpose of Section 230 in Zeran—the first recognizable social media platforms were beginning to emerge. Indeed, that year marked the launch of SixDegrees.com—a site that attracted millions of users by allowing them to create personal profiles and connect with online “friends.” More broadly, media studies scholars mark the years 1997–2001 as the first wave of social media platforms (Boyd and Ellison Reference Boyd and Ellison2008). A second wave of social networking sites emerged in 2001 and included such platforms as Friendster, MySpace, and Match.com (Boyd and Ellison Reference Boyd and Ellison2008). While most sites during this era were Silicon Valley-based startups, some, like the Google-owned Orkut, gained prominent followings in Brazil and other regions outside of the United States. However, it was a website that began exclusively for those with a harvard.edu email address that evolved into a social media platform having the most significant effect on the ideal of openness.
Facebook began on the campus of Harvard in early 2004 and, by mid-2005, had made its online platform available to the general public (Boyd and Ellison Reference Boyd and Ellison2008).Footnote 16 And, within a decade, the hegemonic nature of Facebook’s social media regime would become clear; by 2015, the online platform had accumulated over one billion users worldwide. Moreover, it had purchased Instagram, which at that time had over seven hundred million users, and WhatsApp, which at the time had 1.2 billion global users (Omari Reference Omari2020). The fact that a social media platform could ascend to such global dominance so swiftly speaks to the vast societal and technological influence of the Internet and the social media platforms that its openness facilitates.
Because social media sites support preexisting social networks while fostering new ones, they have attracted billions of Internet users across the globe who employ these platforms in their daily speech practices and communication routines (Boyd and Ellison Reference Boyd and Ellison2008, 210). For these reasons, they have helped advance a cultural reorientation of power and knowledge (Kelty Reference Kelty2008). But while the geeks of the early Internet era employed the Internet’s openness to provide alternatives to the proprietary status quo, social media platforms have emerged as “recursive publics”Footnote 17 that serve as the primary mode of communication and speech for their users, while simultaneously serving the proprietary interests of the social media companies themselves. Drawing from Kelty, the following sections examine how social media has created a reorientation of power and knowledge through facilitating two distinct kinds of recursive publics: (1) in the networks that its users create and (2) in the corporate technocracies (that is, social media companies) themselves.
Social media networks as recursive publics
Social media platforms serve the prime function of allowing their users to recursively share knowledge and information within their network of “friends.” These networks thus serve as collectives that share knowledge that often rests outside of the status quo. For instance, scholars have noted how mainstream media outlets, both in the United States and abroad, often have highly concentrated partisan biases (Benkler, Faris, and Roberts Reference Benkler, Faris and Roberts2018; Cesarino Reference Cesarino2019; Nemer Reference Nemer2022). These biases, coupled with an overall distrust that many citizens have with mainstream media outlets (Nemer Reference Nemer2022), have caused many citizens to turn to social media for alternatives to mainstream news.
Internet search engines and social media platforms, however, often advance biases themselves. Safiya Umoja Noble (Reference Noble2018) has noted how the algorithms of search engines and social media platforms often facilitate biases that privilege whiteness and discriminate against women and people of color. Media studies scholar Luke Munn (Reference Munn2019) has examined how young men who identify as “alt-right” have become radicalized by the content recommended to them by YouTube’s algorithms. Moreover, an array of scholarship suggests that platforms like Facebook have amplified partisan biases and political disinformation, which has adversely affected democratic elections in countries across the globe (Benkler, Faris, and Roberts Reference Benkler, Faris and Roberts2018; Nemer Reference Nemer2019; Hamilton Reference Hamilton2021). Importantly, Section 230 of the CDA provides tech companies and other Internet intermediaries with the discretion to police or moderate the speech that appears on their social media platforms, which gives these intermediaries broad authority over the content their users consume (Klonick Reference Klonick2018; Goldman Reference Goldman and Frosio2020).
While Internet users often turn to traditional social media platforms as an alternative to mainstream news, these platforms have effectively spawned additional, non-automated media alternatives. Internet search engines (for example, Google) and traditional social media sites (for example, Facebook, Instagram, and X, which was formerly Twitter) often rely on the automation of algorithms to provide their users with advertisements and information. Meanwhile, messaging applications (for instance, Facebook Chat, WhatsApp, and Signal) have emerged as social media’s non-automated alternatives. Some of these messaging applications are the corporate subsidiaries of traditional social medial platforms (for example, Facebook Chat and WhatsApp are owned by Facebook), while others exist independently of multinational tech companies (for example, Signal and Telegram). Media studies scholars David Nemer and William Marks (2025, 148) note that these messaging applications are “heteromated” because they rely on “participatory humans to serve their … goals.” Nemer and Marks have coined the phrase “the Human Infrastructure of Misinformation (HIM)” to examine the role social media users play in sharing and amplifying mis and disinformation, specifically within the context of messaging applications (148).
Scholars have argued that within the heteromated, digital ecosystems of HIM, social media platforms allow their users to create polarized “bubbles” that rest comfortably outside the mainstream public sphere. While these bubbles also exist within traditional social media, they are especially prevalent on messaging applications. Beyond allowing users to send and receive text messages and make local, national, and international phone calls, these web-based applicationsFootnote 18 enable users to create large chat groups where users often share and advance extremist political content, among other types of knowledge and information (Cesarino Reference Cesarino2019; Nemer Reference Nemer2022). Messaging applications have grown increasingly prominent in regions of the Global South where standard text messaging (SMS) is often cost prohibitive due in large part to local regulations. While SMS messaging remains the preeminent standard in the United States, social media users in the Global South frequently rely on free WiFi or zero-rating promotionsFootnote 19 to access the Internet (Omari Reference Omari2020; Nemer Reference Nemer2022).
As my colleagues and I discuss elsewhere, the peer-to-peer architecture of most messaging applications is “end-to-end encrypted, meaning that only those persons sending or receiving … messages [can] read the contents” (Omari, Rueda Saiz, and Ashby Wilson Reference Omari, Saiz and Ashby Wilson2024, 223). Unlike traditional social media sites, which lack this feature, encryption is a key characteristic of messaging applications and limits the ability of Internet intermediaries to moderate their content. The lack of content moderation on messaging applications, in turn, makes them a “particularly effective tool for the spread of disinformation” (Omari, Rueda Saiz, and Ashby Wilson Reference Omari, Saiz and Ashby Wilson2024, 223). The online HIM collectives and the networked communities they support thus become their own kind of “recursive public” that lack the fact-checking guardrails of traditional news outlets and serve as a mainstream media alternative (Cesarino Reference Cesarino2019; Nemer Reference Nemer2019, Reference Nemer2022).
By suggesting that networks of social media users become their own recursive publics, I am positing that the Internet has changed our relationship to both the production and consumption of information. These changes index a “reorientation of power and knowledge” that is increasingly affecting both politics and democracy (Kelty Reference Kelty2008, 6). Politically, networks of Internet users are creating recursive publics of their choosing to both control and amplify their distinct political beliefs and ideologies. And, democratically, by recursively sharing and amplifying their political beliefs and ideologies, the publics of social media networks are affecting, for good and for ill, democratic regimes the world over (Benkler, Faris, and Roberts Reference Benkler, Faris and Roberts2018; Hamilton Reference Hamilton2021; Nemer Reference Nemer2022).
Social media companies as recursive publics
Just as social media users have become part of their own recursive publics via sharing knowledge and information with their networks of “friends,” social media companies have become recursive publics through regulating the content and discourse of the users on their platforms. This recursive content regulation is facilitated by Section 230 of the CDA and performed by the social media companies themselves.
As discussed earlier, Section 230 was codified in an era that predated social media. Its purpose was to incentivize Internet intermediaries to moderate offensive content posted to their sites by third parties. The court in Zeran held that an underlying goal was the promotion of free speech and the development of online commerce (Klonick Reference Klonick2018). These ideals sought to advance innovation and openness in the still burgeoning Internet era. Yet, at the same time, they also created a dilemma in the application of the statute. Should more deference be given to the Internet platforms to moderate the content that appears on their sites or to the free speech interests of their users (Klonick Reference Klonick2018, 1608)? This tension is an example of what legal scholar Jonathan Zittrain (Reference Zittrain2008) refers to as the “generative dilemma”—how the Internet’s openness creates its generative potential while simultaneously posing new, and often unforeseen, threats and challenges.Footnote 20
Some scholars argue that the generative dilemma posed by content moderation began as early as the mid-1990s (Lessig Reference Lessig2006). Indeed, the facts leading to the dispute in Zeran appear to suggest the same. For media studies scholar Whitney Phillips (Reference Phillips2019), however, the genesis of this dilemma was around 2008. As Phillips notes, it was around that time that an Internet subculture of “trolling”Footnote 21 began to emerge on certain websites. Munn (Reference Munn2019, 5) finds that this subculture dawned from a “networked milieu of social media, online gaming, message boards, and live streams.” However, in a study that traces the history of the Internet’s trolling subculture, Phillips (Reference Phillips2019) argues that sites like 4Chan, in essence, served as incubators for the culture of Internet trolling that has become prevalent today.Footnote 22 Because these sites facilitate “so many identity-based antagonisms, so many normative gender and race assumptions, and generally so much ugliness,” Phillips (Reference Phillips2019, 2) asserts that “the intertwine between 4Chan and [contemporary] ‘internet culture’ is so deep that you cannot, and you should not, talk about one without talking about the other.”Footnote 23 Surely, then, the generative dilemma posed by moderating the content that appears on social media platforms while simultaneously promoting the free speech of the users on these platforms is an arduous task.
Although these platforms play an essential role in moderating the content of Internet users across the globe, the most prominent Internet platforms—Facebook, YouTube, and X, formerly Twitter—are all US-based and thus subject to the guidelines of Section 230.Footnote 24 Moreover, because Section 230 seeks to promote the ideal of openness by providing Internet intermediaries the discretion to police their platforms while encouraging free speech and the development of online commerce, Klonick (Reference Klonick2018, 1599) suggests that these privately run platforms have become “systems of governance” that are, in essence, the “new governors” of the Internet (see also Kaye Reference Kaye2019; Goldman Reference Goldman and Frosio2020).
In suggesting that these “new internet governors” are a form of recursive public that regulates the content on their platforms, I am also suggesting that they are distinct from the recursive publics of social media users whose content they regulate. While social media companies must generally abide by the regulatory aims of Section 230, they also remain multinational corporations—whose ideals are rooted in the economy, markets, and business transactions—with the primary objective of maintaining the proprietary status quo. In the Internet’s information age, the status quo’s main focus was protecting their IP rights. In our contemporary disinformation era, however, social media companies have proprietary interests in the advertising revenue that stems from mining user data (Benkler, Faris, and Roberts Reference Benkler, Faris and Roberts2018; Koopman Reference Koopman2019; Zuboff Reference Zuboff2019). Thus, for social media platforms, because amplifying disinformation often means increased user engagement with their sites, content moderation concerns are often tempered by their proprietary interests (Benkler, Faris, and Roberts Reference Benkler, Faris and Roberts2018; Zittrain Reference Zittrain2019). Meanwhile, the users whose content they regulate share an abiding interest in freely associating within their own social media networks—which are recursive publics themselves—to create, distribute, and modify information and knowledge. Indeed, openness facilitates the relationship between one recursive public (that is, social media companies) whose norms are rooted in the status quo and another recursive public (that is, networks of social media users) whose norms are often not. What does such a relationship suggest about how we should remember Internet openness?
During the Internet boom that began in the mid-1990s, openness facilitated the free software movement, which served as an alternative to the proprietary norms of the status quo. With their libertarian ethos, the Internet geeks of that era were driven by a focus on individual rights and the desire to make things freely available to the public. Thus, they employed openness to provide alternatives to the capitalist paradigm (Kelty Reference Kelty2008). But through the emergence of social media, multinational tech companies have used the Internet’s openness to control the primary platforms that facilitate speech and association on the Internet. Since the dawn of the Internet, then, openness has helped facilitate a reorientation of power and knowledge (Kelty Reference Kelty2008) that has at times challenged the status quo and, at other times, helped reify its hegemony. Remembering Internet openness thus provides a prime example of the generative dilemma.
The disinformation era
Around 2012—the beginning of what I term the “disinformation era”—the Internet’s openness along with the freedom of information access it facilitates began being misappropriated by the toxicity of trolling subculture (Phillips Reference Phillips2019), threats to net neutrality—the ideal that all Internet traffic be treated equally (discussed earlier in this article), and tech companies advancing their proprietary interests via mining Internet user data (Tufekci Reference Tufekci2012, Reference Tufekci2014; Zuboff Reference Zuboff2019). While the Internet of the information age provided hopes for a network of democratic promise, the challenges that have emerged since the rise of social media have amplified the “generative dilemma” inherent in its openness. This section highlights how this dilemma has come to define the disinformation era via the renewed, proprietary objectives of social media companies, and how these objectives often remain in tension with the ideal of openness.
Social media companies began presenting discernable challenges to net neutrality—an inherent principal of Internet openness—in 2013. During that year, Facebook launched a project called “Internet.org” that aimed to provide free, basic Internet servicesFootnote 25 to disadvantaged populations in parts of the developing world (Ard Reference Ard2016; Omari Reference Omari2020). This Internet access was limited to Facebook and its partners. Since the content that users may access was chosen solely by the Internet service provider—in this instance, Facebook—scholars have termed this type of restricted Internet access as “walled” or “walled gardens” (Ard Reference Ard2016). Because walled gardens limit the Internet that users may access, they violate net neutrality and run counter to the ideal of openness. Moreover, because residents of regions where the promotion was offered could generally not otherwise afford Internet access, Facebook became the sole online platform for these residents. As I have noted elsewhere, “[s]ince Facebook … literally becomes the Internet for users of this platform, asking whether Facebook is the Internet invites us to consider the conflicts between the proprietary interests of transnational tech companies and the public’s interest in a free and open internet” (Omari Reference Omari2020, 1094; emphasis in original).
In Facebook’s telling, they were altruistically offering Internet access to disadvantaged users who could not otherwise afford it. Alternatively, however, critics suggested the Free Basics promotion supported Facebook’s proprietary aims of gaining access to the data of an untapped market of potential Internet users in the developing world (Van Schewick Reference Van Schewick2015; Ard Reference Ard2016). While the status quo of the information age was focused on IP rights, promotions such as Free Basics and zero rating underscore the tension between these transnational social media companies and the principles of openness. Additionally, offering limited Internet access to disadvantaged communities while employing these promotions to harvest the data of these populations illustrates the dilemma that sits at the heart of this era.
Another, equally troubling, example of the generative dilemma is tension presented by online disinformation. With digital networks serving as the preferred mode of communication and speech for citizens across the globe, the mobilizing power of the social media networks has become undeniable. Yet, as I have noted elsewhere, disinformation on these platforms “often stifles efforts to curb the harms of COVID-19 and climate change, while creating other societal ills and subverting public trust in democratic institutions” (Omari Reference Omari2025, 2047).Footnote 26 At the same time, however, efforts to proscribe online disinformation largely fail due to free speech concerns. Indeed, while the Internet of yesteryear was a platform of democratic promise, the tensions presented by online disinformation have their origins in the dilemmas inherent in the foundational values of its openness.
As I noted earlier in this article, an online subculture of trolling began developing in certain corners of the Internet around 2008, a few years after the birth of Facebook; Phillips (Reference Phillips2019) has suggested that this culture laid the foundation for the prevailing insensitivity, abuse, and toxicity that permeates much online discourse today. The convergence of social media—along with the recursivity that it enables—and trolling subculture created the perfect online climate for those who might seek to weaponize these Internet dynamics to further their own interests.
In the United States, the epistemic crisis presented by online disinformation became salient during the 2016 presidential campaign (Benkler, Faris, and Roberts Reference Benkler, Faris and Roberts2018; Hasen Reference Hasen2022; Keck Reference Keck2023). After the reelection of President Barack Obama in 2012, scholars began expressing concerns about how political campaigns employed behavioral microtargeting techniques that collected data from social media—most notably, Facebook—to micro-target voters and influence their voting outcomes (Tufekci Reference Tufekci2012, Reference Tufekci2014). In a similar vein, Shoshana Zuboff (Reference Zuboff2019) has explored how seemingly innocuous online searches may be employed to collect user data with tech companies selling this data in service of advertisers’ interests in predictive analytics.Footnote 27 In addition to data-mining concerns, in an extensive study examining the US political media landscape, Yochai Benkler, Robert Faris, and Hal Roberts (2018) analyze the 2016 presidential elections and American media ecosystems to understand how digital technologies impact society, politics, and democracy. While the authors posit that the current disinformation crisis results in large part from radicalized right-wing politics and a long history of asymmetric media structures, they acknowledge that the weaponization of digital technologies has both amplified and exacerbated the effects of these institutional shortcomings. However, weaponizing the Internet and social media to influence electoral outcomes and compromise democracy—a phenomenon that scholars have termed “digital authoritarianism” (Shahbaz Reference Shahbaz2018; Wilson Reference Wilson2022)—has not been limited to the territorial boundaries of the United States.
Legal scholar Rebecca Hamilton (Reference Hamilton2021) has, for instance, analyzed how social media platforms have been weaponized by governments and extremist groups in Global South countries—Myanmar, Sri Lanka, South Sudan, and Turkey, to name a few—in large part because the US-based corporations (for example, Facebook) that control the social media platforms in these regions lack the skills and cultural competence to effectively regulate disinformation and hate speech in those parts of the world. Recent scholarship has examined similar examples of failed content moderation efforts, both within and outside the United States, and the impact of those failures on democratic norms and institutions (Hasen Reference Hasen2022; Wilson Reference Wilson2022; Sitaraman Reference Sitaraman2023). And if the 2016 US presidential elections marked a tipping point in terms of the weaponization of social media, the 2018 presidential elections in Brazil left no doubt that the digital realm had indeed entered a new disinformation era.
In a key ethnographic study of Brazil’s 2018 presidential elections, David Nemer (Reference Nemer2022) examines how online disinformation and bouts with digital authoritarianism took that country from over a decade of progressive governance that culminated in the election of Brazil’s first woman president—Dilma Rousseff in 2010—to the 2018 election of the far-right extremist, Jair Bolsonaro. In an example of the generative dilemma, Nemer’s study focuses on how youth in Brazil’s favelas Footnote 28 are at once oppressed by digital technologies, often at the hands of state or state-aligned actors, while simultaneously attempting to employ those same digital technologies to resist their oppression. Moreover, Nemer’s study provides a critical examination of how social media was mobilized—to both promote and counter the rule of law—in a years-long struggle for the soul of Brazil’s democracy. In addition to Nemer’s work, other recent scholarship has explored the influence of corruption and social media (Da Sa e Silva Reference Da Sa e Silva2022), online disinformation (Cesarino Reference Cesarino2022), and digital authoritarianism (Omari, Rueda Saiz, and Ashby Wilson Reference Omari, Saiz and Ashby Wilson2024) on electoral politics in Brazil.
As this section highlights, the disinformation era represents a shift in the norms of Internet openness. Once championed for its egalitarian potential, the ideal of openness has been subverted by a growing culture of online toxicity, threats to net neutrality that attempt to reify the capitalist paradigm while challenging the very structure of a free and open Internet, and tech companies whose proprietary interests are often in tension with their content moderation duties. These matters have, in large part, been facilitated or amplified by the recursive publics of social media—both its user networks and the tech companies themselves.
Conclusion
Although I frame the current era of digital governance as the disinformation era, with recent developments in artificial intelligence (AI), it is becoming increasingly clear that we are entering a new, extraordinary stage in digital technologies. And still, the ideal of openness remains critical at this unprecedented juncture. Indeed, tech companies and AI developers are relying on open platforms to facilitate technological breakthroughs,Footnote 29 and some have misleadingly employed openness as a marketing strategy.Footnote 30 But, as this review essay illustrates, the open values of the Internet’s founding era offered idyllic hopes of advancing technological innovation while employing those innovations to mitigate societal inequities.
As an alternative to the capitalist paradigm, the model of a free and open Internet challenged proprietary conventions and their focus on protecting IP rights. But, while openness remains an ideal, its virtues have been strained by commerce, politics, and governments, as early Internet scholars anticipated (Lessig Reference Lessig2006). What was unanticipated, however, is the way in which proprietary conventions have changed in the years since the Internet’s boom in the mid-1990s. While IP rights remain valued, the focus of the capitalist paradigm has shifted to a proprietary interest in Internet user data, which is sold to third parties and used to predict and manipulate behavioral patterns. This feature, coupled with the disinformation culture of the last decade, now means that tech companies—this era’s “new internet governors” (Klonick Reference Klonick2018)—have proprietary interests that are averse to their content moderation duties. As we cope with the dilemmas of the disinformation era and enter the uncharted territories of AI, we would do well to remember the history of Internet openness and how its foundational ideals have been challenged and appropriated by the renewed, proprietary conventions of the capitalist paradigm.
Acknowledgments
Many thanks to Deepa Das Acevedo for the recommendation and to Margaret Chon for valuable comments and suggestions.