Dominant Search Engines: An Essential Cultural & Political Facility

When American lawyers talk about essential facilities, they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance. In this chapter, I sketch a new concept of essential cultural and political facility, which can help policymakers recognize and address situations where a bottleneck has become important enough that special scrutiny is warranted. This scrutiny may not always culminate in regulation. However, it clearly suggests a need for publicly funded alternatives to the concentrated conduits and content providers colonizing the web

Two Narratives of Platform Capitalism

Mainstream economists tend to pride themselves on the discipline\u27s resem­blance to science. But growing concerns about the reproducibility of economic research are undermining that source of legitimacy. These concerns have fueled renewed interest in another aspect of economic thought: its narrative nature. When presenting or framing their work, neoliberal economists tend to tell sto­ries about supply and demand, unintended consequences, and transaction costs in order to justify certain policy positions. These stories often make sense, and warn policymakers against simplistic solutionism

Professional Judgment in an Era of Artificial Intelligence and Machine Learning

Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of reductionism, an encompassing holism is a hallmark of professional practice—an ability to integrate facts and values, the demands of the particular case and prerogatives of society, and the delicate balance between mission and margin. Any presently plausible vision of substituting AI for education and health-care professionals would necessitate a corrosive reductionism. The only way these sectors can progress is to maintain, at their core, autonomous professionals capable of carefully intermediating between technology and the patients it would help treat, or the students it would help learn

Trusting (and Verifying) Online Intermediaries\u27 Policing

All is not well in the land of online self-regulation. However competently internet intermediaries police their sites, nagging questions will remain about their fairness and objectivity in doing so. Is Comcast blocking BitTorrent to stop infringement, to manage traffic, or to decrease access to content that competes with its own for viewers? How much digital due process does Google need to give a site it accuses of harboring malware? If Facebook censors a video of war carnage, is that a token of respect for the wounded or one more reflexive effort of a major company to ingratiate itself with the Washington establishment? Questions like these will persist, and erode the legitimacy of intermediary self-policing, as long as key operations of leading companies are shrouded in secrecy. Administrators must develop an institutional competence for continually monitoring rapidly-changing business practices. A trusted advisory council charged with assisting the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) could help courts and agencies adjudicate controversies concerning intermediary practices. An Internet Intermediary Regulatory Council (IIRC) would spur the development of expertise necessary to understand whether companies’ controversial decisions are socially responsible or purely self-interested. Monitoring is a prerequisite for assuring a level playing field online

Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power

AbstractTroubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize (or entirely block) potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing (and holding themselves to) more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and total surveillance, which are grave threats to freedom of expression.</jats:p

IP Law Book Review: \u3cem\u3eConfiguring the Networked Self: Law, Code, and the Play of Every Day Practice\u3c/em\u3e

Julie Cohen\u27s Configuring the Networked Self is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively short sections of chapters of her book often merit article-length close readings. I here offer a brief for the practical importance of Cohen’s theory, and ways it should influence intellectual property policy and scholarship