A Genealogy of Digital Platform Regulation

82 Pages Posted: 4 Jun 2021 Last revised: 17 Nov 2021

See all articles by Elettra Bietti

Elettra Bietti

Harvard University, Law School

Date Written: June 3, 2021

Abstract

In this Chapter, I connect two parallel genealogies into one larger story. I develop a genealogy of the disagreements that have emerged around the notion of digital platform power and the conflicting regulatory proposals these disagreements have led to. I do so by tracing these debates’ roots in earlier 1990s debates about Internet regulation: contestations around the meaning of freedom, law, power and democracy in digital spaces. In particular, I isolate three paradigmatic views, or moments, in early Internet regulation discourse. First, anarcho-libertarian views portray the Internet as an autonomous and utopian sphere of free social interaction immune from external interferences from the state or the law. Second, liberal views include a number of different perspectives. Most notably, Joel Reidenberg and Lawrence Lessig developed the idea that code is law, that law and behavior-modifying regulation exist in digital environments, but that they manifest in different ways, most effectively through architectural and material means. Finally, a small group of critical thinkers questioned prevalent (anarcho-libertarian and liberal) understandings of cyberspace, showing that many of these views eluded the way power and commercial logics manifested and in practice governed the Internet.

I ask how these three views or moments have influenced and led to a symmetric spectrum of views on how to regulate digital platforms, their power and how to promote freedom and emancipation in digital spaces. 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 and privately controlled space where the default is enclosure and digital life is dependent on a few commercial actors. In spite of this shift, the three paradigmatic views I identify with regard to platform governance remain surprisingly aligned with earlier 1990s visions. In the digital platform context, anarcho-libertarianism has retreated and morphed into a libertarian aversion to regulation as well as a series of market optimist perspectives; liberal views continue to expand, forming a vast liberal and neoliberal terrain of contestation that has absorbed large parts of anarcho-libertarian ideologies and critical tendencies in directions that include proposals for platform self-regulation, fiduciary obligations, data protection, competition and utility regulation. Finally, the terrain of critique remains fertile and is key to advancing the overall discourse on platform governance, with questions of power and surveillance capitalism now viewed as central.

In mapping these perspectives, my method is genealogical. The term “genealogy” was first used by Friedrich Nietzsche in the sense I intend it here and was subsequently borrowed and re-adapted by a number of critical scholars and philosophers, importantly Michel Foucault. I adopt a genealogical method to unveil a story about the ways in which conceptions of freedom, law and power have evolved and mutated in response to new infrastructural and material digital conditions. Complacency about freedom and faith in competitive marketplaces and individual preferences has significantly conditioned and allowed the concentrated arbitrary and opaque manifestations of digital power in existence today. To avoid similar trajectories in the future, a genealogical perspective is in order.

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

Bietti, Elettra, A Genealogy of Digital Platform Regulation (June 3, 2021). Available at SSRN: https://ssrn.com/abstract=3859487 or http://dx.doi.org/10.2139/ssrn.3859487

Elettra Bietti (Contact Author)

Harvard University, Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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