Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries

Abstract

Internet service providers and search engines have mapped the web, accelerated e-commerce, and empowered new communities. They also pose new challenges for law. Individuals are rapidly losing the ability to affect their own image on the web - or even to know what data are presented about them. When web users attempt to find information or entertainment, they have little assurance that a carrier or search engine is not biasing the presentation of results in accordance with its own commercial interests.

Technology’s impact on privacy and democratic culture needs to be at the center of internet policymaking. Yet before they promulgate substantive rules, key administrators must genuinely understand new developments. While the Federal Trade Commission and the Federal Communications Commission in the U.S. have articulated principles of editorial integrity for search engines and net neutrality for carriers, they have not engaged in the monitoring necessary to enforce these guidelines. This article proposes institutions for “qualified transparency” within each Commission to fill this regulatory gap. Qualified transparency respects legitimate needs for confidentiality while promoting individuals’ and companies' capacity to understand how their reputations - and the online world generally - are shaped by dominant intermediaries.

Keywords: Internet service providers,privacy,web,qualified transparency,Federal Trade Commission