A Genealogy of Digital Platform Regulation
Until recently, the internet was imagined as a decentralized, horizontal, and open space that would foster freedom and equality. Today, it is a collection of walled gardens, a hierarchical ecosystem ruled by a few gatekeepers who leverage access to data and infrastructural capability to enclose users and competitors in relations of dependency. Until recently, the growth of digital platform companies such as Alphabet, Meta and Amazon has been met with regulatory apathy. The intellectual and institutional toolbox available to Western lawyers, policymakers, and thinkers has been grossly inadequate to diagnosing and addressing harm and power formation in the information capitalist era. Now regulatory attitudes toward Big Tech are changing, but how?
To understand current path-dependencies and blind spots, this Article adopts a genealogical methodology, tracing digital platform regulation efforts and controversies between the 1990s and today, interpreting them as efforts to contest and define notions of freedom, law, power, and democracy in a changing society. It isolates three paradigmatic conceptions in early Internet regulation discourse: anarcho-libertarian, liberal, and critical perspectives. It shows that these have shaped a similar spectrum of three views today on how to regulate digital platforms: libertarian aversion to regulation; liberal perspectives on self-regulation, fiduciary obligations, data protection, competition, and utility regulation; and critical accounts of platform governance.
Although the move from an Internet of decentralized networks to an Internet of concentrated platforms represents a significant shift, understandings of digital freedom, power, and law have remained relatively constant throughout the Internet’s existence. Moving beyond free market blind spots requires embracing the porosity and ambiguities that underlie efforts to redefine platforms as public utilities and efforts to decentralize the digital economy. Efforts in both directions hold promise as ways of breaking with past errors and re-inventing the role of law in the digital economy.
NYU Law & Cornell Tech, Joint Postdoctoral Fellow. SJD Harvard Law School. Affiliate Berkman Klein Center at Harvard, Yale Law School Information Society Project. I thank Yochai Benkler, Jennifer Cobbe, Julie Cohen, Evelyn Douek, Brenda Dvoskin, Richard Fallon, Urs Gasser, Thomas Kadri, Amy Kapczynski, Daniel Susser, Rory Van Loo, Salome Viljoen for helpful comments and conversations on this work.