A Genealogy of Digital Platform Regulation
7 Georgetown Law and Technology Review (2022) (forthcoming)
64 Pages Posted: 4 Jun 2021 Last revised: 6 Sep 2022
Date Written: June 3, 2021
At its inception between the 1960s and 1990s, 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, attention and infrastructural capability to enclose users and competitors in relations of dependency. The transition happened over the course of one, or at best two, decades. Why did the power of digital platform companies such as Google/Alphabet, Facebook/Meta, Amazon, and Apple emerge and grow so quickly without a regulatory response? An important reason is that the intellectual and institutional toolbox available to Western lawyers, policymakers, and thinkers is grossly inadequate to diagnosing and addressing harm and power formation in the information capitalist era.
In this Article, I adopt a genealogical methodology to trace the evolution of digital platform regulation efforts and controversies. I connect current efforts to 1990s debates around the regulation of cyberspace: contestations on the meaning of freedom, law, power, and democracy in digital spaces. I isolate three paradigmatic views, or moments, in early Internet regulation discourse: anarcho-libertarian, liberal, and critical views. I ask how these three views or moments have shaped and led to a similar spectrum of three views on how to regulate digital platforms and promote freedom in digital spaces: libertarian aversion to regulation; liberal perspectives on self-regulation, fiduciary obligations, data protection, competition, and utility regulation; and critical accounts of platform governance.
The move from an Internet of networks to an Internet of platforms represents a significant shift: from a hybrid, decentralized environment where freedom seemed the norm, to a centralized space where the default is privatized enclosure. Still, 1990s and current understandings of digital freedom, power, and law are pervaded by similar market-liberal path-dependencies that continue to facilitate the consolidation of private power in digital environments. I suggest two steps towards a post-neoliberal approach to digital policy.
Keywords: digital platforms, power, law, freedom, regulation, Facebook, Google, Amazon, genealogy, data, cyberlaw, cyberspace, data protection, algorithms, competition, antitrust, content moderation, Facebook Oversight Board, fiduciaries, trusts, cooperatives, utilities, EU, US
JEL Classification: K00
Suggested Citation: Suggested Citation