Platform Neutrality

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Frank Pasquale Digisprudence

Notes on (Pasquale, F.: Platform neutrality: enhancing freedom of expression in spheres of private power 487–513)

broader normative theory of what a well-ordered digital sphere of freedom of expression would look like

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relationship between free expression and regulation on the internet

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Regulations "as apt to promote freedom of expression as to limit it"

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core idea of neutrality is to prevent massive intermediaries from distorting either private commerce or the public sphere simply by virtue of their size, network power, or surveillance capacities

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regulation may crimp the “free expression” of “corporate persons,” but is necessary for fair opportunities at expression (or even understanding of the social world) by human persons generally

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critical free expression at stake in governmental regulation of such services is that of their users, rather than that of the platforms themselves.

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history of extensive Government regulation of the broadcast medium, . . . the scarcity of available frequencies at its inception . . . and its “invasive” nature. . . .

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When intellectual property or defamation claims arise, they emphasize their role as mere conduits, reflecting the preferences and serving the interests of users. But when classic business tort or privacy claims arise, intermediaries argue that they are speakers

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Google presented itself as little more than a cultural voting booth, a transmitter of popular preference as processed through algorithms with no obligation to reflect social values

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in many other disputes, Google claims an absolute right to knock any site off any search result page

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individual disputes come to judges and regulators prepackaged as “free expression,” “intellectual property,” or “privacy” disputes

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critical mass of close cases combines with network effects to give a few firms extraordinary power

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allow many intermediaries to enjoy the rights of each and responsibilities of neither

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forcing a vast, sprawling array of human activities into a Procrustean bed of “speech.”

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networked technology is often more prone to concentrate power than it is to diffuse it

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dominant companies need to start recognizing the utility-like aspects of their role, and to shoulder some burdens (rather than just pocketing the benefits) of serving as an infrastructure of free expression

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Until recently, the person who had more power to determine who may speak and who may be heard around the world was not a president or king or Supreme Court Justice. She was Nicole Wong, who was deputy general counsel at Google

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Were a government to require newspaper articles to express a particular point of view, that would be a violation of freedom of expression. Prohibiting one firm from owning more than thirty percent of newspaper chains or cable networks, though, has far less dire consequences for freedom of expression — and may well promote it

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government often uses private databases to gather data it is itself forbidden from collecting

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some quantum of privacy is a sine qua non of free expression rights

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“private” firms that defy or evade those guardians of privacy are just as surely undermining the infrastructure of free expression as the surveillance state

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