The Next Digital Decade: Essays on the Future of the Internet by Berin Szoka & Adam Marcus

Author:Berin Szoka & Adam Marcus
Language: eng
Format: epub
Publisher: TechFreedom

Why Dominant Search Engines & Carriers Deserve More Scrutiny than Dominant Auction Sites & Social Networks

Those skeptical of the administrative state may find this proposal to “watch the watchers” problematic. They think of intermediaries as primarily market actors, to be disciplined by market constraints. However, the development of dominant Web 2.0 intermediaries was itself a product of particular legal choices about the extent of intellectual property rights and the responsibilities of intermediaries made in legislative and judicial decisions in the 1990s. As intermediaries gained power, various entities tried to bring them to heel—including content providers, search engine optimizers, trademark owners, and consumer advocates. In traditional information law, claims under trademark, defamation, and copyright law might have posed serious worries for intermediaries. However, revisions of communications and intellectual property law in the late 1990s provided safe harbors that can trump legal claims sounding in each of these other areas.46 Some basic reporting responsibilities are a small price to pay for continuing enjoyment of such immunities.

An argument for treating internet intermediaries more like regulated entities owes much to the trail-blazing work of legal realists. Among these, Robert Hale’s work on utilities remains especially inspirational.47 Hale developed many of the theoretical foundations of the New Deal, focusing on the ways in which the common law became inadequate as large business entities began ordering increasing proportions of the national economy.48 Hale’s crucial insight was that many of the leading businesses of his day were not extraordinary innovators that “deserved” all the profits they made; rather, their success was dependent on a network of laws and regulation that could easily shift favor from one corporate player to another.49 Hale focused his theoretical work on the utilities of his time, expounding an economic and philosophical justification for imposing public service obligations on them. Regulatory bodies like state utility commissions and the FCC all learned from his work, which showed the inadequacy of private law for handling disputes over infrastructural utilities.

Market advocates may worry that monitoring of search engines and carriers will lead to more extensive surveillance of the affairs of other intermediaries, like social networks and auction platforms. They may feel that competition is working in each of those areas, and should be the foundation of all intermediary policy. However, competition is only one of many tools we can use to encourage responsible and useful intermediaries. We should rely on competition-promotion via markets and antitrust only to the extent that (a) the intermediary in question is an economic (as opposed to cultural or political) force; (b) the “voice” of the intermediary’s user community is strong;50 and (c) competition is likely to be genuine and not contrived. These criteria help us map older debates about platforms onto newer entities.

For search engines and carriers, each of these factors strongly militates in favor of regulatory intervention. Broadband competition has failed to materialize beyond duopoly service for most Americans. There are several reasons to suspect that Google’s dominance of the general purpose search market will continue to grow.51 Just as

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