Online Intermediaries: Should Search be Regulated?
Friday, September 26, 2008
"Cloud computing" is the new buzzword in cyberspace, describing the migration of information and applications from desktop PCs to a "cloud" of computers located at companies like Google and Facebook. While many business writers are wondering about "
who will own the cloud," dominant players are emerging and using their strong positions in some questionable ways. For example, they reserve the right to kick members off their systems for any or no reason at all—and many of their operations are cloaked in secrecy.
Though online giants like Google and Facebook have created many new controversies, it is difficult to find appropriate models for regulating them. As they affect more aspects of our media, culture, and politics, we need to better understand the implications of this brave new online world.
That was the gist of the message from Frank Pasquale, J.D., M.Phil., and Loftus Professor of Law at Seton Hall Law School, as he discussed the troubling implications of Google’s growing power. Professor Pasquale was a guest speaker at the Annenberg School for Communication on September 12. His noontime colloquium presentation, “Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines,” was the first of a series of colloquia scheduled for Annenberg under the theme “New Media and Technology.”
Frank Pasquale, from Seton Hall Law School
Questioning the degree of accountability of dominant search engines like Google and Yahoo, Professor Pasquale pointed out that Europe is pioneering more responsive approaches to the threats they pose. He also questioned whether litigation could lead to productive solutions. “The technical complexity is so great that you need an administrative body to manage it,” he said. He jokingly called his new theory of regulation for online intermediaries “The Law of Facebook, Google, and eBay,” and framed it as “environmentalism for the net.”
Professor Pasquale, who has been called upon by U.S. House Judiciary Committee Chairman John Conyers to offer testimony regarding Google and other Internet search providers before a Task Force on Competition and the Internet, suggested the use of other legislative and regulatory steps as a potential solution to reduce opportunities for major search engines to abuse their dominant positions. “Congress is making baby steps toward accountability on the Internet,” he said, “but there should be some government entity that knows exactly what’s going on with Google and inside of its search engine. The model here is the Foreign Intelligence Surveillance Court, which protects state secrets while assuring that government action is legitimate.”
He discussed trends in the markets, citing Google’s supremacy in the United States, South America, and Europe, made even more pervasive by people’s complete faith in the search engine and results provided. He proposes assimilating search engines with social networks, suggesting governing laws that mimicked some types of “device neutrality” promoted for the Apple iPod. “Social and search data portability could be patterned on music portability,” he advised. “If you have data portability rules, that would encourage competition amongst market participants.” But if competition does not arise, Pasquale argued that only a regulatory body could achieve public values in this sector—a position he argued in detail in his co-authored work, Federal Search Commission.
By considerable contrast, one attendee at the colloquium had commented, during the Q&A session that data portability could stifle the value of the original nature of a social network itself, arguing that the basic intention of social networks, like Facebook, is to have people stay inside of the network without the freedom to simply leave at anytime or take their data and move its contents elsewhere. Professor Pasquale conceded that privacy concerns may militate against data portability—and that market competition might, in general, be an inadequate way of dealing with the growing, unaccountable power of intermediaries online.
Professor Pasquale argued that competition is only one of many tools that can be used to encourage responsible and useful intermediaries. Market competition should be relied on 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 weak (since competition is designed to provide those users an "exit" option); c) competition is likely to be genuine and
not contrived. He then explained why search engines are least amenable to purely economic regulation: “The search engine’s cultural importance is really immense,” he said. “If you look at it solely from an economic lens, you’ll miss the most important thing about it:
how it affects information flow generally.”
Professor Pasquale blogs at Concurring Opinions and Madisonian.net, and has guest-blogged at Jurisdynamics. At Concurring Opinions, his posts focus on methodology in Legal Scholarship, Health Law, and Intellectual Property. The Madisonian blog has a technology focus. Along with Gaia Bernstein and Jim Chen, he organized a virtual symposium at Law & Technology Theory. Professor Pasquale was called one of the leading critics of Google in a featured article in the Boston Globe Ideas section.
For more information on Pasquale, see his
website.