Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities
It’s not easy being an Internet giant. Once the darlings of the innovation economy, the major technology companies—Amazon, Google/Alphabet, and Facebook—have in recent months found themselves suddenly on the back foot. From the firestorm surrounding the proliferation of “fake news” and hate speech on Facebook and YouTube, to Google’s long-burning dispute with Yelp over the former’s alleged skewing of search results to favor its own products, to Amazon’s various disputes with publishers and retailers alike, the technical wizardry, convenience, and efficiency promised by these firms no longer seems benign.
These various conflicts, while complex in their own right, are each symptomatic of a deeper problem posed by these dominant firms. The root problem is that Google, Facebook, and Amazon are not ordinary companies selling goods and services on the market. Rather, these firms are better understood as infrastructuralfirms. They increasingly operate as the foundational, backbone platforms upon which economic and social activities and transactions all take place. Yet this infrastructure remains privately-controlled for the ultimate interest and profit of these firms themselves. And through their control of this infrastructure, Amazon, Google, and Facebook possess a problematic concentration of power. Their internal policies and decisions effectively govern the flow of information, goods, and services in our increasingly digitized economy and society. Conceptualizing these firms as (private) infrastructure clarifies the nature of the current legal, policy, and political debate around these private actors: if these informational platforms are effectively governors of much of our informational, economic, and political life, how then should our public policy govern them?
K. Sabeel Rahman
Assistant Professor of Law, Brooklyn Law School; Fellow, Roosevelt Institute. Thank you to Julie Cohen, Paul Ohm, Georgetown Law School, and Georgetown Law Technology Review for inviting me to participate in this symposium. This paper has emerged out of a series of extremely generative and helpful conversations with a number of friends and colleagues. Thanks in particular to: Frank Pasquale, Josh Cohen, David Grewal, Amy Kapczynski, Jed Purdy, Jonathan Zittrain, Yochai Benkler, Dave Karpf, danah boyd, Nabiha Syed, Barry Lynn, Lina Khan, Moira Weigel and Ben Tarnoff. Thank you to the editors of the Georgetown Law and Technology Review for their helpful comments and editorial assistance. Thanks to Ian Eppler and Kate Redburn for excellent research assistance. Preliminary versions of these ideas were presented at the Open Markets Institute (Oct. 2017); Harvard Law School’s Berkman Klein Center (Nov. 2017), and Data & Society (Dec. 2017).