40 Pages Posted: 18 Jun 2009
Date Written: June 17, 2009
With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.
In this paper, I seek to break out of this polarized debate, and I suggest an alternative regulatory approach. Between the patchwork of the current legal approach and the prospect of agency regulation, there is an alternative. I propose that a purely federal approach (involving the development of federal common law in the interstices of the existing statutory structures) is more likely to allow for a coherent and comprehensive assessment of search engine disputes without incurring the costs of more centralized regulation. Drawing on some of the early literature on the regulation of cyberspace, I propose this approach for its incremental and flexible nature. The incrementalism of the common law allows for greater adaptability to changing technology. In addition, a common law approach may ultimately provide some predictability without locking-in technology or standards or otherwise inhibiting innovation.
Suggested Citation: Suggested Citation