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Dominant Intermediaries’ Future: Monopoly + Responsibility

After giving testimony at a Congressional hearing on Competition on the Internet, I began to wonder–has anyone done an intellectual history tracing the origins of worries about the power of search engines and other intermediaries? Helen Nissenbaum and Lucas Introna published an extraordinarily prescient paper on “why the politics of search engines matters” at the turn of the millennium. Alejandro Diaz’s 2005 thesis Through the Google Goggles is remarkably sapient. Siva Vaidhyanathan authored a terrific cultural critique of Google Library in the Chronicle of Higher Education well before many others worried about it, and his book The Googlization of Everything is eagerly anticipated. At first their voices were only joined by a few in the academy. But now worries about intermediary power are starting to gain some critical mass, as the following items demonstrate:

1. During Slate’s always-insightful Culture Gabfest, Stephen Metcalf, Dana Stevens, and Julia Turner discussed Google’s new competitor, Cuil. One of the group remarked on the oddity of our gradual cession of so many aspects of national memory to a private company–reminding me of the academic work of Diane Zimmerman, Guy Pessach, Peter Menell . . . and my own little commentary. We’ve all pointed out the public nature of Google Library’s current functions and future aspirations. The gabfesters also noted that Google has begun to feel like a utility–a familiar point to readers of this blog.

2. From CNET, an article entitled “So when do we get it over with and declare Google a monopoly?” Here’s the Google response, in words. . . .

3. And here are some responses, in the form of action. What Google is getting (and what many other dominant intermediaries are going to need to get) is that their power results in certain forms of responsibility. Whether it be offering transparency in customized search results, or “notice of search customization,” these steps help assure a more-skeptical public that their interests are being taken into account.

4. Nevertheless, critics are going to be asking for much more. In the course of reviewing Clay Shirky’s Here Comes Everybody, the extraordinarily perceptive European media theorist Felix Stalder makes a basic case for much more responsibility for dominant intermediaries:

Shirky stresses the decentralised, ad-hoc mode of new organisations, yet they are based on very complex infrastructures that are highly centralised and that create near infinite potential to manipulate the social interactions that take place through them. These are not neutral enabling devices. For example, Flickr recently deleted a picture by the Dutch photographer Maartin Dors that showed a Romanian street kid. Why? Because it violated a previously unknown, unpublished rule against depicting children smoking! What’s the rationale of this rule? As a spokesperson explained, Flickr and Yahoo! ‘must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities.’ Jonathan Zittrain points out that the ‘ever-increasing usability [of Web 2.0]has been accompanied by the deliberalising of user rights.’ . . .

Thus, there is a tension at the core of the Web 2.0 phenomenon created by the uneasy (mis)match of the commercial interests of the companies and social interests of their users. All this social interaction takes place within privately owned spaces so that users are basically faced with a take-it-or-leave-it decision that few of them are really aware of. There is a structural imbalance between the service providers who have a tangible incentive to expand their manipulative capacities and the average users who will barely notice what’s going on, since it would require a lot of effort to find out. To believe that competitive pressures will lead providers to offer more freedoms is like expecting the commercialisation of news to improve the quality of reporting. [emphasis added]

Like Michael Zimmer’s and Trebor Scholz’s Critical Perspectives on Web 2.0, this work reminds us that the “best physician is the best poisoner”–i.e., that the very intermediaries who now enable peer production can become its masters if left unaccountable. For example, in Copyright in an Era of Information Overload, I presented Google as a company that could reduce concentrated cultural industries’ dominance of distribution. However, as Google becomes more of an online conglomerate, it may create problems in new areas similar to the ones it is helping to solve elsewhere. Some (like Doc Searls) may think competition will solve those problems, but my testimony gives many reasons to doubt that hope.

Hat Tip: Eric Goldman, whose State of the Net West conference should be a great venue to discuss the policy issues raised by intermediaries. Though Goldman and I disagree on a lot, I think his blog is indispensable reading for those interested in intermediary law.