The concept of checks and balances is a core tenet of our democracy; we fear letting any single institution become overly powerful or insufficiently accountable. As Americans, we naturally apply this concept first and foremost to the interactions among our three branches of government, given the principle’s constitutional origins. What happens, though, when a handful of exceedingly powerful private actors — today’s behemoth technology companies — begin to have as much control over our lives as the government does? Should the same impulse that drives our commitment to inter-branch checks and balances kick in? How can we ensure that our democracy remains our democracy, even when digitized? To date, our three branches of government have engaged in only limited ways with technology companies such as Facebook, Microsoft, and Amazon, even though these companies dominate their industries and have a tremendous influence on every corner of our lives.
As an initial step in thinking about these questions, this essay examines a different context in which our checks and balances have proven weak: the national security space. It recounts the basic challenges that the other two branches have faced in checking the Executive’s national security activities. The essay then identifies the ways in which those challenges resonate in the context of checking technology companies, helping us to understand why it has proven difficult for Congress and the courts (and the Executive) to weave a set of legal constraints around technology companies that offer us social media platforms, build advanced law enforcement tools, and employ machine learning algorithms to help us search, buy, and drive. The essay explores alternative sources of constraints on the national security Executive, drawing inspiration from those constraints to envision other ways to shape the behavior of today’s technology behemoths and other companies whose products are driven by our data.