Article   |   Volume 167, Issue 3

Digital Switzerlands

By
167 U. Pa. L. Rev. 665 (2019)

March 2019












U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, as well as increasing public demands for the companies to protect users from governments.

The “Digital Switzerlands” concept encompasses two ideas: (1) that the U.S. technology companies are on par with, not subordinate to, the countries that try to regulate them, and (2) that they are, in some sense, neutral. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. government 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.

Turning to the normative, 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 to prevent backsliding? This Article offers preliminary answers to these questions, while acknowledging that the answers may well evolve along with the companies’ behavior.

Digital Switzerlands - PennLawReview.com