Be Required to Police More?
Seton Hall Law Professor Frank Pasquale argues that the Internet allows intermediaries to shroud their operations in what might be called “perfect opaqueness”—to extend Larry Lessig’s feared model of “perfect control.”
Pasquale uses the example of Google to illustrate the many ways in which online intermediaries choose to police the Internet, even when not required to do by governments. Given the critical policing role played by intermediaries, Pasquale proposes an “Internet Intermediary Regulatory Council” to “help courts and agencies adjudicate controversies concerning intermediary practice”
and assure adequate monitoring—a “prerequisite for assuring a level playing field online.” The IIRC “could include a search engine division, an ISP division focusing on carriers, and eventually divisions related to social networks or auction sites if their practices begin to raise commensurate concerns.”
While leaving open the possibility that the IIRC could be a private entity, Pasquale is unabashed in citing Robert Hale, theoretician of the New Deal’s regulatory frenzy: “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.” But rather than repealing these laws and regulation to allow the “evolutionary dynamism”
of competition to play out, as Adam Thierer proposes, Pasquale is willing to
“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;
and (c) competition is likely to be genuine and not contrived.” Otherwise, competition is inadequate. “The bottom line,” Pasquale concludes, “is that someone needs to be able to look under the hood” of culturally significant automated ranking systems.” Thus, the Internet is not exceptional: Pasquale believes only careful regulatory oversight can protect us from shadowy corporations, just as in Franklin Delano Roosevelt’s telephone-and-radio era.
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While Pasquale seems not to object to intermediaries acting as arms of the police state so long as they are properly transparent and regulated, Mark MacCarthy cautions against the practical problems raised by intermediary policing and offers an analytical model for deciding when intermediary deputization is appropriate. Based on his experience as Senior Vice President for Public Policy at Visa Inc., MacCarthy explores how payment systems have handled Internet gambling and copyright infringement as exemplary case studies in intermediary deputization because, unlike most online intermediaries, payment systems are subject neither to Section 230’s absolute immunity for third-party content or activities nor to the notice-and-take-down conditional immunity of the Digital Millennium Copyright Act.
MacCarthy finds cause for optimism about self-regulation: “regardless of the precise legal liabilities, intermediaries have a general responsibility to keep their systems free of illegal transactions and they are taking steps to satisfy that obligation.” But he insists intermediary liability should be imposed only where real market failures exists, where supported by “an analysis of costs, benefits and equities,” where spelled out clearly, and to the extent local laws are harmonized internationally.
The most troubling form of intermediary deputization comes from uncertain secondary copyright liability, writes independent writer, lawyer and programmer Paul Szynol in an expanded version of an essay originally written for the Electronic Frontier Foundation. He challenges the anti-exceptionalist arguments made by Judge Kozinski and Josh Goldfoot. Szynol argues that the failure to clearly define such liability chills innovation and investment in innovative start-ups—and that that this problem is unique to the Internet, given the vastly larger scale of competition facilitated by digital markets.
Most intriguingly, Szynol argues that Kozinski and Goldfoot contradict their argument against Internet Exceptionalism by insisting on a standard for secondary liability online that is not actually applied offline. Szynol asks,
“should a car company be held liable for drivers who speed? After all, it would be easy enough to add a ‘speed limit compliance chip.’ Yet auto manufacturers are not forced to pay any portion of a speeding driver's ticket. Offline, in other words, bad actors—the users of technology—are punished for their own transgressions. Online, however, the law chases the manufacturers—and applies ad-hoc, ambiguous standards [of secondary liability] to their products.”
Thus, for all their denunciation of First Wave Exceptionalists like John Perry Barlow, Szynol essentially insists Kozinski and Goldfoot are actually Goldman’s
“Second Wave” Internet Exceptionalists who want to impose more punitive regulations online than offline.
Is Search Now an "Essential Facility?"
Frank Pasquale brings his theory of intermediary regulation to full fruition with his sweeping call for “search neutrality.” Like Tim Wu in The Master Switch, Pasquale worries that antitrust law is incapable of protecting innovation and adequately addressing the “the cultural and political concerns that dominant search engines raise." Thus, he aims to “point the way toward a new concept of
‘essential cultural and political facility,’ which can help policymakers realize the situations where a bottleneck has become important enough that special scrutiny is warranted.” In particular, Pasquale sees taming search as inextricably intertwined with protecting privacy—“Engaging in a cost-benefit analysis [as in antitrust law] diminishes privacy's status as a right”—and Google’s potential chokehold on information through the Google Books Settlement.
The existence of competition in search, especially from Microsoft’s Bing, and the potential for competition from Facebook and other services yet to be invented, are essentially irrelevant to Pasquale, while the First Amendment’s protection of search engine operators are a complication to be addressed down the road. He concludes by insisting that regulation should be supplemented by a publicly funded alternative to the dominant private sector search engine—
something the French government has heavily subsidized a European “Quaero”
search engine. Similarly, in Chapter 6, Pasquale proposed to model his Internet Intermediary Regulatory Council on the French Data Protection Authority.
Thus, Pasquale’s over-arching vision seems to be that of a Digital New Deal—a la française.
Geoffrey Manne, Professor at Lewis & Clark Law and Executive Director of the International Center for Law & Economics, explains that search engines are not the bottlenecks Pasquale suggests—and thus why even the traditional essential facilities doctrine, which he says “has been relegated by most antitrust experts to the dustbin of history,” should not apply to them. In essence, he argues that “search neutrality” would protect only competitors, not consumers, because even a popular search engine like Google cannot foreclose advertisers’
access to consumers’ attention. Google, like any company, has no legal duty to help its rivals. More to the point, even if Google entirely dominated search, it could not block consumers’ access to its competitors. This, argues Manne, is the relevant market to analyze—quoting Supreme Court Justice Abe Fortas’s famous admonition about excessively narrow market definitions: “This Court now approves this strange red-haired, bearded, one-eyed man-with-a-limp classification.”
Like Manne, New York Law School Professor James Grimmelmann expresses
“Skepticism about Search Neutrality,” and the significant practical problems it
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would create. As the author of the definitive law review article, The Structure of Search Engine Law,9 Grimmelmann is keenly aware of the concerns raised by search, yet he concludes that “the case for search neutrality is a muddle”
because its “ends and means don’t match.” Echoing Johnson, Mueller, Holland, and Thierer’s view of the Internet as a liberating, democratizing force, Grimmelmann is clear that the lodestar of search is user autonomy: “If search did not exist, then for the sake of human freedom it would be necessary to invent it.” He deconstructs eight search neutrality principles—equality, object-ivity, bias, traffic, relevance, self-interest, transparency and manipulation—and finds each lacking, but cautions that “it doesn’t follow that search engines deserve a free pass under antitrust, intellectual property, privacy, or other well-established bodies of law,” and that some other “form of search-specific legal oversight” might be appropriate.
Eric Goldman once again puts the debate in the context of its intellectual history. Always focused on questions of exceptionalism, Goldman concludes search engines are neutral only in theory (“Search Engine Utopianism”) but must “make editorial judgments just like any other media company.” He explains that, while “search engine bias sounds scary, … such bias is both necessary and desirable”—and the remedy of “search neutrality” is probably worse than whatever adverse consequences come with search engine bias.
Ultimately, he predicts that “emerging personalization technology will soon ameliorate many concerns about search engine bias.”