Digital Switzerlands
ARTICLE DIGITAL SWITZERLANDS KRISTEN E. EICHENSEHR† 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 companies’ power raises serious questions about how to understand their role. Scholars have proposed varying conceptions, suggesting that the companies should be understood as public utilities, information fiduciaries, surveillance intermediaries, or speech governors. This Article takes up another possibility, one suggested by the companies themselves: that they are “Digital Switzerlands.” The Digital Switzerlands concept encompasses two ideas: (1) that the companies are on par with, not subordinate to, the countries that try to regulate them, and (2) that they are, in some sense, neutral. This Article critically evaluates the plausibility of these claims and explores how the companies differ from other powerful private parties. 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, * This Article reflects developments through February 2019, when it was finalized for publication. † Assistant Professor, UCLA School of Law. For
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