Abstract
This article questions the normative context and politico-regulatory implications of Google’s stance on network neutrality—the idea that Internet service providers should not discriminate packets of data on the Internet according to their source, content, or destination. While much has already been said on network neutrality, Google’s own normative universe in this regard has been left somewhat untouched. As this article will show, inquiring into Google’s formal stance on network neutrality raises important questions on the regulation of Google’s own activities—generally subsumed in the idea of search, on the idea of neutrality itself, what it means for politics, the state and agency in general, and on the type of political system we may wish to live with in the information age. The article answers these questions, laying out some assertive conclusions about Google’s stances already at the outset. These conclusions are deepened as the article unfolds.
Timeo hominem unius libri
—Aquinas.
A modified version of this chapter has been published as Marcelo Thompson, In Search of Alterity: On Google, Neutrality, and Otherness, 14 Tul. J. Tech. & Intell. Prop. 2011.
Research/Assistant Professor, Deputy Director, LL.M. in IT and IP Law, The University of Hong Kong Faculty of Law. D.Phil (Candidate), University of Oxford, Oxford Internet Institute; LL.M., University of Ottawa. I am happy to acknowledge the generous support of the Alcatel-Lucent Foundation for my position as a Visiting Fellow at the Hans Bredow Institute for Media Research, University of Hamburg, where the first thoughts that led to this paper were conceived. The ideas expressed in the lines below, however, have to no extent been influenced by my institutional affiliation at that time beyond the boundaries of open (and discerning) academic exchange. I thank Wolfgang Schulz and Victoria Nash for thoughtful comments on earlier notes.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
“Don't Be Evil” was a motto officially adopted by Google during an internal corporate meeting in 2001. According to accounts by Google's own personnel, it was chosen, together with other general principles, to reflect “what Google was all about”; it was adopted within an efficiency-oriented ethos, by engineers resistant to the excessive specificity of rules. See Battelle 2006, p. 138.
- 2.
Think of the United Kingdom. From the Magna Carta, in 1215, to date, in cases like M v Home Office [1994] 1 AC 377, the history of British constitutional law, though having mishaps and setbacks, has been one of control and subjection of the Crown. See, e.g., Holt 1992, p. 29, quoted in Tomkins 2003, p. 40 (arguing that the Magna Carta was itself “based on a political theory of 'monarchical responsibility…'”). This, of course, is far from claiming that there is anything resembling a regime of perfect tripartite separation of powers in Britain, with the Crown entirely at check by the judicial power. See, e.g., Adam Tomkins, id., at 54–60.
- 3.
Vaidhyanathan 2011, p 3.
- 4.
Battelle 2006, p 1.
- 5.
Taylor 1991, p 29 (“[T]o speak of orientation is to presuppose a space-analogue within which one finds one's way. To understand our predicament in terms of finding or losing orientation in moral space is to take the space which our frameworks seek to define as ontologically basic. The issue is, through what framework-definition can I find my bearings in it? In other words, we take as basic that the human agent exists in a space of questions. And these are the questions to which our framework-definitions are answers, providing the horizon within which we know where we stand, and what meanings things have for us”).
- 6.
Recent studies show that 6% of all global Internet traffic comes from Google (a number that may, depending on the variables, go up to 12%). See Labovitz 2010. This makes Google the largest source of traffic on the Internet. And yet, it is a measurement of traffic itself—not of Google's influence. Compared to Skype's, for instance, much of Google's type of traffic may be relatively light. Six percent, thus, is a very impressive number. But the real, unanswered question, is how much of the remaining traffic, though not carried by Google, arises directly or indirectly from information obtained through it.
- 7.
It is in this technical sense, which will get clear more ahead, that the word neutralization will be used in this article.
- 8.
European Commission 2010.
- 9.
Editorial, N.Y. Times, 2011.
- 10.
A number of earlier works seem to adopt this ontological approach with regard to search. See, e.g., Nissenbaum and Introna 2000, p. 169 (for a pioneer, normative account discussing how the ways search engines function are “at odds with the … ideology of the Internet as a public good” (id. at 178)). See also Bracha and Pasquale 2008 and Grimmelmann 2007. Pasquale has recently expanded this perspective in a cogent piece. See Pasquale 2010.1, p.402, inviting “scholars and activists to move beyond the crabbed vocabulary of competition law to develop a richer normative critique of search engine dominance”.
- 11.
I will not pursue here any comprehensive account of what network neutrality means in all its different flavours—if only because these so are varied and manifold that they make of network neutrality, to use Christopher Yoo's words, “a naked normative commitment”. Yoo 2005, p. 26. I will, however, describe and evaluate that which I trust to be the archetypal stance on network neutrality; the stance most faithful to net neutrality's teleological foundations: Google's. Network neutrality here is mostly interesting for the world view it at the same times draws on and brings about.
- 12.
Google is widely believed to have shifted its stance on network neutrality in a joint proposal with Verizon Communications Inc., sent to the US Federal Communications Commission in August 2010. See Davidson and Tauke 2010 [hereinafter Joint Proposal]. The proposal, in a nutshell, suggests a differentiated approach for providers of wireless and wireline Internet access—with a significant set of constraints applying to the latter but not to the former. The idea seems to be this: on the one hand, traditional broadband ISPs will be subject to neutralizing constraints that enable Google to ride freely upon them. On the other hand, the approach to wireless communications will be one that enables Google to be a first mover and, in partnership with Verizon, build upon its established dominance in the information environment. Doing so, Google can, in practice, neutralize other ISPs in ways it knows it would not be able to do through policy intervention by the FCC. Network neutrality, however, was overall abandoned by Google as a term of art. Below we understand why.
- 13.
Having been challenged through a Class Action, Google pursued a settlement that, for the time being, has been struck by the Judge hearing the case. See, inter alia, Samuelson and Nimmer, 2011.
- 14.
Drummond 2010.
- 15.
One of the main arguments used in recent World Trade Organization proceedings against China is precisely the idea of 'technological neutrality', which enjoins political authorities not to reflect specific choices in society's technological infrastructure. I have dealt with the merits of China's choices in this context in an earlier work. See Thompson 2011. For Google's approach, see Boorstin 2010.
- 16.
One may rush to claim that challenging China’s policies with regard to the information environment is to do liberalism a favour. One should also note, however, that to nullify China’s possibilities of making any choices on conceptions of the good in this regard—which is entailed in neutrality claims—is a self-defeating way of promoting liberalism. I enlarge on this point in Sect. 13.4.
- 17.
And this in spite of Google’s expedient observations, somewhere else, that Copyright law in the US, including the DMCA, reflects “a delicate balance, carefully crafted by Congress and adjudicated through the courts”. See Reply Comments of Google Inc., In re Preserving the Open Internet Broadband Indus. Practices, GN Docket No. 09-191, WC Docket No. 07-52 (Apr. 26, 2010). [See note 28].
- 18.
Were this to happen, it would be the product of a building up of different challenges to the law—and not as an absolutist, all-encompassing challenge to any individual actor in the information environment.
- 19.
See, e.g., StopBadware.org, Herdict.org and ChillingEffects.org—at least two of which count on Google as their foremost collaborator.
- 20.
Benkler 2006, p 281.
- 21.
Google's original evangelization page—“A Guide to Net Neutrality for Google Users”—can only, indeed, be found in the Internet Archive, its latest version being of Sept. 25, 2009. See Google 2009 [hereinafter Guide]. The paradox that Google would seek to remove information from public access is notable. When one queries the old URL one is simply redirected to Google’s justifications for its changed position. For the old address, see http://goo.gl/PWLrY (Accessed 6 July 2011). For the new address, just look for the old at http://www.google.com/help/netneutrality.html (Accessed 6 July 2011).
- 22.
Id.
- 23.
Joint Proposal, supra note 12.
- 24.
Editorial, N.Y. Times 2010.
- 25.
Mayer 2010.
- 26.
It is ironic, and we will come back to this point, that Google sees its own services as innovating while others’—those that should be neutralized—are seen as mere commodity.
- 27.
Schmidt and McAdam 2009
- 28.
Reply Comments of Google Inc., In re Preserving the Open Internet Broadband Indus. Practices, 6N Docket No. 09-191, WC Docket No. 07-52 (Jan. 14, 2010) [hereinafter Comments]. FCC’s authority in this context was later challenged and found against in Comcast Corp. v. FCC 2010 [hereinafter Comcast], a case concerning the interruption of BitTorrent traffic by Comcast, whose behaviour was reprimanded in a 2008 Order issued by the FCC. See Federal Commmunications Commission 2008 [hereinafter Comcast Order]. For an analysis of the D.C. Circuit’s decision finding against the FCC, see Thompson, 2010. See Google 2010, p. 72
- 29.
Federal Communications Commission 2009 [hereinafter NPRM].
- 30.
Seeinfra note 31 and accompanying text.
- 31.
Comments, supra note 28, p i.
- 32.
Id. p ii, 3 and pp 60–63.
- 33.
Id. p 3.
- 34.
Id. pp 13–26.
- 35.
In its recently issued Open Internet Rules the FCC uses the expression 'edge providers' “to refer to content, application, service, and device providers, because they generally operate at the edge rather than the core of the network”. See infra note 60, para. 3 n.2.
- 36.
See Paul 2011.
- 37.
Comments, supra note 17, at 56; NPRM, supra note 29, para 95.
- 38.
Comments, id. p 60.
- 39.
Id. p 62.
- 40.
Practical reason is here referred to in a technical sense, as “the general human capacity for resolving, through reflection, the question of what one is to do”. Wallace 2003, and as involving all the normative elements, the comprehensive world-views that we discuss in the upcoming sections. For an insightful account on the requirements of practical reason, see Finnis 1980, 2005.
- 41.
Comments, supra note 28, p 63.
- 42.
Id. p 68.
- 43.
Id. p 69.
- 44.
“A separate network management exception for ‘unlawful content’ and the ‘unlawful transfer of content’ is unnecessary. (…) [T]hese issues are not related to network management at all, but rather are properly matters of law enforcement and compliance with the law”. Comments, p. 72.
- 45.
Id.
- 46.
As the following lines will show, however differently one may understand the harm principle in other realms of practical reason, determining what is harmful in relation to informational goods inevitably engages our conceptions of the good in moral, political and otherwise cultural ways.
- 47.
See supra note 19.
- 48.
StopBadware 2011a.
- 49.
StopBadware 2011b.
- 50.
StopBadware 2009.
- 51.
See, e.g., Zheng 2008, p. 17, arguing, on the one hand, that “the development of science and technology has long been embedded in the mind-set of the Chinese elite regarding nation-state building” and, on the other hand, that the policies and practices of nation-state building in China at the same time “provide opportunities for the rise of social movements”. Both perspectives, for Zheng, interact in the constitution of what the political in contemporary China is, all this being “especially true in the case of … the Internet” (id.).
- 52.
Seesupra note 15.
- 53.
IETF, RFC 2026, Bradner 1996, para 1.2. The reference is not merely to fairness as a procedural criteria for approving standards—which appears in another part of the RFC—but, substantively, to fairness as a goal of the standards process. With a similar reading, see Kathy Bowrey, Law and Internet Cultures 1 (2007).
- 54.
Internet Society 2010.
- 55.
Brazilian Internet Steering Committee (CGI.br), 2009 [hereinafter CGI.br Resolution].
- 56.
See Falcão 2003, p 15.
- 57.
CGI.br Resolution, supra note 55, para 6.
- 58.
One note is due here. Amongst other murky criteria that go beyond engineering—e.g. fairness and lawfulness—Google seeks to rule out the political. In practice, however, the political is only ruled out at Google's own convenience, for it continues to play a strong role through Google’s own affiliated projects, such as StopBadware.
- 59.
Federal Communications Commission, 2005 [hereinafter Policy Statement].
- 60.
Federal Communications Commission, 2010 [hereinafter Open Internet Rules or, simply, Rules].
- 61.
For Google, instead of a reasonable network management requirement at the core of every principle, there should be a general prohibition against network management practices not explicitly delineated. Such a prohibition would then be coupled with a defence for those cases where it can be established that a network management practice is reasonable. In its Rules, however, the FCC understood that “principles guiding case-by-case evaluations of network management practices are much the same as those that guide assessments of ‘no unreasonable discrimination’”. Rules, supra note 60, para. 87. In other words, these principles do not work merely as a defence of reasonable network management for presumably unjustified network management practices. They work as a general rule of “no unreasonable discrimination” for network management practices that are generally taken as reasonable, until otherwise established.
- 62.
Policy Statement, supra note 59, p 3 n.15.
- 63.
“The rule protects only transmissions of lawful content, and does not prevent or restrict a broadband provider from refusing to transmit unlawful material such as child pornography”. Rules, supra note 60, para 64.
- 64.
The FCC noted its “disagree[ment] with commenters who argue that a standard based on “reasonableness” or “unreasonableness” is too vague to give broadband providers fair notice of what is expected of them”. In its words, “[t]his is not so. Reasonableness” is a well-established standard for regulate conduct”. Rules, id., para 77.
- 65.
Albeit the Rules (id.) establish no independent requirement that they do so.
- 66.
Does the integrity of networks encompass, for instance, IETF RFC 2026’s goal of a fair Internet? See supra note 53.
- 67.
Rules, supra note 60, para 82.
- 68.
In Joseph Raz's “service conception of authority”, the authority of law stems from the service it provides in “mediating between people and the right reasons which apply to them”. Raz 1994, p 214.
- 69.
Seesupra note 40.
- 70.
See Raz 2004, p 9 (“What happens … is that law modifies the way morality applies to people. … [L]aw modifies … the way moral considerations apply”).
- 71.
Finnis 1980, p 15.
- 72.
See Luhmann 2004, p. 140 (“This does not mean, as one might suspect at first glance, that the legal system and the political system form one system together. But they do resort to special forms of structural coupling and are linked to each other through that coupling”).
- 73.
Id., at 142–172.
- 74.
According to this view, as much as one can identify a service in the church, even being an agnostic, just by looking at its important features, so can the morally impious still understand what the law is just by looking at its sources, without sharing moral convictions of any sort (The example is given by Dickson 2001, pp. 68–69). Moral criteria, for Raz, concern law's legitimacy, the acceptance of its legal propositions, but are foreign to and modified by the legal propositions one accepts. In sum, law, in being accepted as law, impinges upon morality, but does not incorporate morality and can thus be identified without resort to it. See Joseph Raz, supra notes 68, 70.
- 75.
Raz 1994, p. 235. In this excerpt, as not very often happens, Raz is citing Ronald Dworkin approvingly, which shows just how much of a platitude the point is.
- 76.
Rules, supra note 60, para 93.
- 77.
See Lessig 2001, p 23 (noting how the idea of layers helps us to organize our thoughts).
- 78.
As Searls and Weinberger argue, “[t]he Internet isn't a thing. It's an agreement”. Searls and Weinberger 2003. Of course, we need to understand this as an exaggeration, for the Internet is enacted in different dimensions, including, beyond that of conventions, also the tangible dimension that John Law calls the Euclidean topology. It is, thus, a thing, an object in all these dimensions. See Law 2002. The unity of what we call the Internet, however, is indeed conventional. It is given by the syntactical network through which we normatively enact the Internet, as an agreement, a meeting of minds—and thus of reasons.
- 79.
Very symptomatically, in a submission to the FCC last year during a consultation following the Comcast decision, a group of influential academics and supporters of network neutrality invited the Commission to acknowledge that the transmission component of ISPs' services is not part of the Internet, opening way for the Commission to regulate these services. In the authors' words, “carriers’ assertions that the Commission would be regulating 'the Internet' [by regulating the transmission component of their services] are deliberately misleading”. Ammori, Crawford and Wu, 2010, p. 7–8. The FCC had considered this idea (abandoning it later) in the consultation, noting that, in regulating ISPs' transmissions, it would not be regulating the Internet: “[G]eneral agreement has developed about the agency’s light-touch role with respect to broadband communications…. The Commission does not regulate the Internet”. Schlick 2010, 2919. For a critique, see Thompson 2010.
- 80.
See, e.g., Murray 2007, p 45 (noting, based on Benkler, that “vertical regulation is only effective from the bottom-up, that is regulation in a supporting layer is effective in the layers above, but does not affect the layers below”).
- 81.
Seesupra note 60, paras 53 ff.
- 82.
On Google's Transparency Report website, data related to transparency actually refers not to Google itself but to Governments who may create hurdles to the provision of Google's services—by means of user information requests, information filtering or infrastructure outage. See Google, 2011. See also, e.g., Zittrain 2008, p. 220 (“Search engines are notoriously resistant to discussing how their rankings work, in part to avoid gaming—a form of security through obscurity. … The most popular engines reserve the right to intervene in their automatic rankings processes—to administer the Google death penalty, for example—but otherwise suggest that they do not centrally adjust results”).
- 83.
Comcast Order, supra note 28 para 49 and fn229.
- 84.
Order, supra note 28, p. 61 (Statement of Comm’r Robert M. McDowell). His example of P2P applications is particularly relevant: “The providers of certain peer-to-peer (P2P) applications, for example, could do a better job of making consumers aware that their applications require consumers' computers to work 24 by 7 in ways that can tie up their computing power and reduce broadband speeds for themselves and their neighbours” (id.).
- 85.
Id.
- 86.
Those services had been earlier classified by the FCC itself as information services, due to the fact that their “telecommunications 'component' … is 'functionally integrated' [with their 'computing functionality'] into a single 'offering'”. Comcast, supra note 28, p. 13 [applying National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005)]. In other words, those services were held to be not two different parts but a whole and thus not to be regulable as if telecommunication services, simply, they were. For instance, the Commission would not be able to impose a common carrier obligation to providers of information services—as such an obligation can only be imposed to services which the Commission has direct authority upon, which is not the case of information services.
- 87.
See Comcast, supra note 28, pp 33–34.
- 88.
Id., p 34.
- 89.
See Rules, supra note 60, paras 124 ff.
- 90.
Id., para 50.
- 91.
Id., p 31 n.160.
- 92.
Id., para 50.
- 93.
Seesupra note 91 and accompanying text.
- 94.
Varian and Shapiro 1999, p 104.
- 95.
I use the expressions differently from Chomsky 1965, pp 64 ff.
- 96.
Say 1885, Book I, Chapter II, para 19.
- 97.
As the U.S. Department of Justice and the Federal Trade Commission note in their Horizontal Merger Guidelines, even if competition agencies' analyses need not start with the definition of markets, “evaluation of competitive alternatives available to customers [– that is, of markets –] is always necessary at some point in the analysis”. U.S. Dep’t of Justice & Fed. Trade Comm’n 2010, p. 7 [hereinafter Guidelines]. The scholarly literature has also noted the insufficiency of market definition exercises with regard to informational goods. Gilbert and Rubinfeld, for instance, argue that technologies are often complementary to each other and thus that it is inadequate to define technology markets as those involving “technologies or goods that are close enough substitutes to constrain the exercise of market power with respect to the intellectual property that is licensed”. Such definition can be found in U.S. Dep’t of Justice and Fed. Trade Comm’n 1995, para. 3.2.2. See Gilbert and Rubinfeld, 2011, pp. 262, 269. The problem here would be to assume that there is even some degree of complementarity between Google's different services. That would lead to an overly elastic definition of markets that could very well encompass the whole web. On the other hand, adopting other starting points but the definition of markets may not be of much help to competition authorities either. Here, rather than looking into pricing dynamics within a defined market, what agencies will pursue are evidences of detrimental competitive effects of a merger (Guidelines, id.). These effects typically arise wherever reduced product quality, reduced product variety, reduced service, or diminished innovation (id. p. 1) are not followed by significant pressures of demand substitutability. None of these effects take place in Google's increasing dominance scenario—rather the opposite. Google passes all these tests with flying colours. The problems it prompts are of a completely different nature. They are externalities to the Pareto efficiencies and Nash equilibriums of economic analysis.
- 98.
One can find another example of this logical-cum-geographical type of services in the Domain Names System of the Internet, which maps mnemonically accessible names to logical locations associated to physically situated resources. IETF's RFC 1034 speaks of a name space in a logical sense but, ultimately, these logical entities that we call names identify resources. Thus, “[t]he primary goal [of the Domain Name System] is a consistent name space which will be used for referring to resources”. Mockapetris, IETF, RFC 1034, 1997, para 2.2.
- 99.
See supra note 96 and accompanying text.
- 100.
Seesupra note 92 and accompanying text.
- 101.
Smith 2011 (“Unfortunately, Google has refused to allow Microsoft’s new Windows Phones to access this YouTube metadata in the same way that Android phones and iPhones do”).
- 102.
- 103.
Argenton and Prüfer, id. p 2.
- 104.
Id. p 9.
- 105.
Id. p 15.
- 106.
Pollock 2010, p 12.
- 107.
Id. pp 16–18.
- 108.
Id.
- 109.
See Argenton & Prüfer 2011, p. 7 (citing a survey showing that interface design plays a role in product differentiation of search engines).
- 110.
Pollock 2010, p 11.
- 111.
Id. pp 21–23.
- 112.
Id. pp 26–27.
- 113.
Id. p 26 (“[R]egulatory attention could be focused on the 'service' side which in many ways is simpler”).
- 114.
Id. p 27.
- 115.
See Smith 2011.
- 116.
Varian & Shapiro 1999, p 109.
- 117.
Id. pp 113–114.
- 118.
Id. p 115.
- 119.
Id. p 121.
- 120.
Id. p 126.
- 121.
Id. p 131.
- 122.
Id. p 132.
- 123.
See, e.g., Thelwall 2009.
- 124.
Landler 2010.
- 125.
Benkler 2006, p 157.
- 126.
In The Wealth of Networks and in earlier works, Benkler speaks of a new model of commons-based peer production or, more broadly, of social production, as a social-economic phenomenon that provides a third-way alternative to the traditional models of markets and firms—an alternative of systematic advantages for dealing with information and culture as objects of production. See, in particular, Benkler 2002.
- 127.
Benkler 2006, pp. 169 ff.
- 128.
Id.
- 129.
Seesupra p 9.
- 130.
- 131.
That being so, Langdon Winner's words could not happen to be more opportune. Speaking of those who seek to advocate a broader normative agenda in a world dominated by anti-normative, efficiency-oriented stances, Winner notes: “Because the idea of efficiency attracts a wide consensus, it is sometimes used as a conceptual Trojan horse by those who have more challenging political agendas they hope to smuggle in. But victories won in this way are in other respects great losses. For they affirm in our words and in our methodologies that there are certain human ends that no longer dare to be spoken in public. Lingering in that stuffy Trojan horse too long, even soldiers of virtue eventually suffocate”. Winner 1986, p 54.
- 132.
Benkler 2006, p 151.
- 133.
Id. p 146.
- 134.
We have discussed this point in section 13.3.
- 135.
Benkler 2006, p 169.
- 136.
Id. p 141.
- 137.
Id. pp 171–172.
- 138.
“It is fairly clear that the new router increases the capacity of cable operators to treat their subscribers as objects, and to manipulate their actions in order to make them act as the provider wills, rather than as they would have had they had perfect information” (id. p 148). This is not completely surprising, though, since much of Benkler's earlier scholarship had been directed to advocating commons-based forms of administration of communications resources. See, e.g., Benkler 1998, with a view he continues to sustain in the book. See Benkler 2006, p. 161 (“The autonomy deficit of private communications and information systems is a result of the formal structure of property as an institutional device and the role of communications and information systems as basic requirements in the ability of individuals to formulate purposes and plan actions to fit their lives”).
- 139.
“The extent to which information overload inhibits autonomy relative to the autonomy of an individual exposed to a well-edited information flow depends on how much the editor who whittles down the information flow thereby gains power over the life of the user of the editorial function, and how he or she uses that power” (id. p 169).
- 140.
“The problem would be with search engines that mix the two strategies and hide the mix, or with a monopolistic search engine” (id. p 157).
- 141.
Raz, supra note 130, p 133.
- 142.
Benkler, supra note 20, p 151.
- 143.
Id. pp. 279–280.
- 144.
Id. p. 298.
- 145.
Id.
- 146.
See, e.g., Sunstein 2007. Benkler rejects Sunstein's theory but does not go to great lengths to disprove it. See Benkler, supra note 20, pp 238–239. The irony here is that the very visible polarization around net neutrality debates, and the twitter brouhahas that seem to feed these, lend remarkable persuasiveness to Sunstein's arguments. Further research on political polarization on Twitter notes that, while people do use that platform to engage with alternative world views, they find themselves unable to do so in a meaningful way—and, of course, tend to interact more with like-minded users. Boyd and Yardi seem to blame it on the constraints of the platform. That may be so. But then it is worth noticing that the major constraint presented by Twitter is not its brevity. More space will not per se add to consent. The major constraint is another which, especially after their recent victories in the spring revolutions, actors in the West may not be willing to sacrifice: immediacy. See Boyd and Yardi 2010. Noting, besides polarization, the frequently uncivil tone of the debates, see Conover et al., 2011.
- 147.
Generativity is, indeed, the happiness of contemporary utilitarianism—or at least its idiosyncrasy. See Zittrain 2008, p 90.
- 148.
See Cheung 2009.
- 149.
See Mayer-Schönberger 2009.
- 150.
See Nozick 1974, pp 297–333.
- 151.
It requires so even at the price of coercion to prevent the pursuit of morally repugnant options. For Raz, “[the] pursuit of the morally repugnant cannot be defended from coercive interference on the ground that being an autonomous choice endows it with any value”. Raz 1986, p 418.
- 152.
“Perfectionist goals need not be pursued by the use of coercion. A government which subsidizes certain activities, rewards their pursuit, and advertises their availability encourages those activities without using coercion…. The government has an obligation to create an environment providing individuals with an adequate range of options and the opportunities to choose them…. Autonomy-based duties… require the use of public power to promote the conditions of autonomy, to secure an adequate range of options for their population" (id. pp 417–418).
- 153.
“[T]the autonomy principle is a perfectionist principle. Autonomous life is valuable only if it is spent in the pursuit of acceptable and valuable projects and relationships. The autonomy principle permits and even requires governments to create morally valuable opportunities, and to eliminate repugnant ones” (id. p 417).
- 154.
Benkler does seem to have an uneasy relationship with Rawls. On the one hand, he criticizes Rawls's black-box approach with regard to culture. On the other hand, he does not seem to fully reject the political neutrality fundamentals upon which such an approach relies. But, beyond that, Benkler also trusts that his views of the networked information environment are compatible with the “difference principle” of Rawls's theory of justice—that is, with Rawls's views on distribution. Actually, Benkler trusts that his own views on the networked environment are compatible with any of the theories of justice he lists in his book—Rawls's, Dworkin's, Akerman's and Nozick's (Benkler, id. pp. 303–308). Is it a mere coincidence that all these authors have also espoused theories of liberal neutrality? (though the late Dworkin seems to have abandoned these, Benkler’s reference seems to be still to the 1981 Dworkin). Or does Benkler’s reliance upon neutralists actually tell us that it is not possible to disentangle those author’s political views on autonomy and neutrality from their take on distribution—and that that is why perhaps Benkler is ready to refer to the latter? This being so, however, it would be important to point to a difficulty in Benkler’s line of reasoning. Though Benkler seems ready to assume that Rawls's difference principle encompasses cultural goods, he can only do so by stretching Rawls’s rather individualistic understanding of what primary goods amount to and the consequent (if arguable) neutrality of Rawls’s political system towards culture. Other authors have explicitly tried this approach, but have also ignored the neutrality component of Rawls's theory, which renders the enterprise, in my view, equally problematic. See Van den Hoven and Rooksby 2008.
- 155.
See, e.g., Galston1991
- 156.
- 157.
Finnis 1980, p 106.
- 158.
See Thompson 2011.
- 159.
Finnis 2005, p 110.
- 160.
Id.
- 161.
Some may disagree and defend that the identification of legal considerations can happen independently of moral criteria. Not even these, however, as noted above, would submit that successfully living a lawful life can happen in separation from a theory of morality that renders our legal pursuits meaningful and worth living by.
- 162.
Brownsword 2008, p. 24.
- 163.
Id. p 25.
References
Ammori M, Crawford S, Wu T (2010) Submission to the Federal Communications Commission at 7-8. In re Preserving the Open Internet, GN Docket No. 09-191; Broadband Industry Practices, WC Docket No. 07-52; A National Broadband Plan for Our Future, GN Docket No. 09-51
Argenton C, Prüfer J (2011) Search engine competition with network externalities, TILEC Discussion Paper, DP 2011-024. http://extranet.isnie.org/uploads/isnie2011/argenton_prufer-.pdf. Accessed 1 Sept 2011
Battelle J (2006) The search: how Google and its rivals rewrote the rules of business and transformed our culture. Portfolio, New York
Benkler Y (1998) Overcoming agoraphobia: building the commons of the digitally networked environment. Harvard J Law & Technol 11:287–400
Benkler Y (2001) Siren songs and Amish children: autonomy, information, and law. N Y U L Rev 76:23
Benkler Y (2002) Coase’s penguin, or, Linux and the nature of the firm. Yale L J 112:369
Benkler Y (2006) The wealth of networks: how social production transforms markets and freedom. Yale University Press, New Haven
Boorstin B (2010) Promoting free trade for the internet economy. http://googlepublicpolicy.blogspot.com/2010/11/promoting-free-trade-for-internet.html. Accessed 1 Sept 2011
Boyd D, Yardi S (2010) Dynamic debates: an analysis of group polarization over time on Twitter. Bull Sci Technol Soc 30(5):316–32
Bracha O, Pasquale F (2008) Accountability in the law of search. Cornell L Rev 93:1149–1210
Bradner S (1996) The internet standards practice—revision 3, IETF, RFC 2026, http://www.ietf.org/rfc/rfc2026.txt. Accessed 1 Sept 2011
Brazilian Internet Steering Committee (CGI.br) (2009) Principles for the Governance and use of the internet, Resolution CGI.br/RES/2009/003/P. http://cgi.br/regulamentacao/pdf/resolucao-2009-003-pt-en-es.pdf. Accessed 1 Sept 2011
Brownsword R (2008) Rights, regulation and the technological revolution. Oxford University Press, Oxford
Cheung A (2009) Rethinking public privacy in the internet era: a study of virtual persecution by the Internet crowd. The J Media Law 1(2):191–217
Chomsky N (1965) Aspects of the theory of Syntax. MIT Press, Cambridge
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010)
Conover M et al. (2011) Political polarization on Twitter, paper presented at the fifth international AAAI conference on weblogs and social media (Jul. 17–21), http://truthy.indiana.edu/site_media/pdfs/conover_icwsm2011_polarization.pdf
Davidson A and Tauke T (2010) A joint policy proposal for an open internet. http://googlepublicpolicy.blogspot.com/2010/08/joint-policy-proposal-for-open-internet.html. Accessed 1 Sept 2011
Dep’t of Justice & Fed. Trade Comm’n (2010) Horizontal Merger. http://www.justice.gov/atr/public/guidelines/hmg-2010.pdf. Accessed 1 Sept 2011
Dep’t of Justice and Fed. Trade Comm’n (1995) Antitrust Guidelines for the Licensing of Intellectual Property. http://www.justice.gov/atr/public/guidelines/0558.pdf. Accessed 1 Sept 2011
Dickson J (2001) Evaluation and legal theory. Hart Publishing, Oxford
Drummond D (2010) A new approach to China. http://googleblog.blogspot.com/2010/01/new-approach-to-china.html Accessed 1 Sept 2011
European Commission (2010) Press release, antitrust: commission probes allegations of antitrust violations by Google. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1624&format=HTML. Accessed 1 Sept 2011
Falcão J (2003) Globalização e judiciário: a internalização das normas de nomes de nomínio. In: Lemos R, Waisberg I (eds) Conflitos Sobre Nomes de Domínio: e Outras Questões Jurídicas da Internet. Revista dos Tribunais, São Paulo, p 15
Federal Communications Commission (2005) In re Appropriate framework for broadband access to the internet over wireline facilities; (…) appropriate regulatory treatment for broadband access to the internet over cable facilities, policy statement, 20 FCC Rcd at 14986
Federal Communications Commission (2008) Formal complaint of free press and public knowledge against Comcast Corporation for secretly degrading peer-to-peer applications, memorandum opinion and order, 23 F.C.C.R. 13028
Federal Communications Commission (2009) In re Preserving the open internet: broadband industry practices, notice of proposed rulemaking, 24 FCC Rcd. 13064
Federal Communications Commission (2010) In re Preserving the open internet: broadband industry practices, report and order, 25 FCC Rcd 17905
Finnis J (1980) Natural law and natural rights. Clarendon Press, Oxford
Finnis J (2005) The foundations of practical reason revisited. Am J Juris 50:109
Galston WA (1991) Liberal purposes: goods, virtues, and diversity in the liberal state. Cambridge University Press, Cambridge
Gilbert R, Rubinfeld D (2011) Revising the horizontal merger guidelines: lessons from the US and the EU. In: Faure M, Zhang X (eds) Competition policy and regulation: recent developments in China, Europe and the US. Edward Elgar, Cheltenham, p 262
Google Inc. (2009) A guide to net neutrality for Google users. http://web.archive.org/web/20090925074634/http://www.google.com/help/netneutrality.html. Accessed 1 Sept 2011
Google Inc. (2010) Comments of Google Inc., In re Preserving the open internet Broadband industry practices, GN Docket No. 09-191, WC Docket No. 07-52. http://www.openinternetcoalition.com/files/Google_Comments.pdf Accessed 1 Sept 2011
Google Inc. (2011) Transparency report. http://www.google.com/transparencyreport. Accessed 1 Sept 2011
Grimmelmann J (2007) The structure of search engine law. Iowa Law Rev 93:1–63
Holt J (1992) Magna Carta. Cambridge University Press, Cambridge
Hurka T (1996) Perfectionism. Oxford University Press, Oxford
Hurka T (2003) Vice, virtue, and value. Oxford University Press, Oxford
Internet Society (2010) Open inter-networking. http://www.isoc.org/pubpolpillar/usercentricity/20100222-Inter-Networking.pdf. Accessed 1 Sept 2011
Labovitz C (2010) Google sets new Internet traffic record. http://asert.arbornetworks.com/2010/10/google-breaks-traffic-record. Accessed 1 Sept 2011
Landler M (2010) Google searches for a foreign policy. http://www.nytimes.com/2010/03/28/weekinreview/28landler.html. Accessed 1 Sept 2011
Law J (2002) Objects and spaces. Theory, Cult & Soc 19(5–6):9
Lessig L (2001) The future of ideas: the fate of the commons in a connected world. Vintage Books, New York
Luhmann N (2004) Law as a social system. Oxford University Press, Oxford (Klaus A. Ziegert transl.; Fatima Kastner, Richard Nobles, David Schiff & Rosamund Ziegert eds.)M v Home Office [1994] 1 AC 377
Marissa Mayer (2010) Do not neutralize the web’s endless search. http://www.ft.com/cms/s/0458b1a4-8f78-11df-8df0-00144feab49a,Authorised=false.html?_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2F0458b1a4-8f78-11df-8df0-00144feab49a.html. Accessed 1 Sept 2011
Mayer-Schönberger V (2009) Delete: the virtue of forgetting in the digital age. Princeton University Press, Princeton
Murray A (2007) The regulation of cyberspace: control in the online environment. Routledge, London
N.Y. Times (2010) Editorial, The Google algorithm. http://www.nytimes.com/2010/07/15/opinion/15thu3.html. Accessed 1 Sept 2011
N.Y. Times (2011) Editorial, Investigating Google. http://www.nytimes.com/2011/07/05/opinion/05tue3.html?_r=2. Accessed 01 Sept 2011
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005)
Nissenbaum H, Introna L (2000) Shapping the web: why the politics of search engines matters. The Inf Soc 16(3):169
Nozick R (1974) Anarchy, state, and Utopia. Basic Books, New York
Pasquale F (2010) Dominant search engines: an essential cultural & political facility. In: Szoka B, Marcus A (eds) The next digital decade: essays on the future of the internet. TechFreedom, Washington, D.C., p 401
Paul Mockapetris, Domain Names—Concepts and Facilities, IETF, RFC 1034 (Nov., 1997), http://goo.gl/BFppN
Paul R (2011) Android openness withering as Google withholds Honeycomb. http://arstechnica.com/open-source/news/2011/03/android-openness-withering-as-google-withhold-honeycomb-code.ars. Accessed 1 Sept 2011
Pollock R (2010) Is Google the next Microsoft: competition, welfare and regulation in online search. Rev Netw Econ 9:4–29 Article 4
Raz J (1986) The morality of freedom. Clarendon Press, Oxford
Raz J (1994) Ethics and the public domain. Oxford University Press, Oxford
Raz J (2004) Incorporation by law. Leg Theory 10(1):9
Samuelson P, Nimmer D (2011) The amended google book settlement: Judge Chin’s decision. http://www.wipo.int/wipo_magazine/en/2011/03/article_0003.html. Accessed 1 Sept 2011
Say JB (1855) A Treatise on Political Economy. Longman, Hurst, Rees, Orme, and Brown, London
Schlick A (2010) A third-way legal framework for addressing the Comcast dilemma. http://www.broadband.gov/third-way-legal-framework-for-addressing-the-comcast-dilemma.html. Accessed 1 Sept 2011
Schmidt E, McAdam L (2009) Finding common ground in an open Internet. http://googlepublicpolicy.blogspot.com/2009/10/finding-common-ground-on-open-internet.html. Accessed 1 Sept 2011
Searls D, Weinberger D (2003) World of ends: what the Internet is and how to stop mistaking it for something else. http://www.worldofends.com. Accessed 1 Sept 2011
Smith B, Microsoft Corporation (2011) Adding our voice to concerns about search in Europe. http://blogs.technet.com/b/microsoft_on_the_issues/archive/2011/03/30/adding-our-voice-to-concerns-about-search-in-europe.aspx. Accessed 1 Sept 2011
StopBadWare (2009) China’s Green Dam is BadWare and So Much More. http://blog.stopbadware.org/2009/06/13/chinas-green-dam-is-badware-and-so-much-more. Accessed 1 Sept 2011
StopBadWare (2011a) Frequently asked questions. http://www.stopbadware.org/home/faq#what_is_badware. Accessed 1 Sept 2011
StopBadWare (2011b) About StopBadware, StopBadware. http://www.stopbadware.org/home/about Accessed 1 Sept 2011
Sunstein C (2007) Republic.com 2.0. Princeton University Press, Princeton
Taylor C (1991) Sources of the Self: The Making of Modern Identity. Cambridge University Press, Cambridge
Thelwall M (2009) Introduction to webometrics: quantitative web research for the social sciences. Synth Lect Inf Concepts Retr Serv 1(1):1
Thompson M (2010) The sheriff of ‘not-the-Internet’: reflections on Comcast Corp. v FCC, Communications Law. Review 1(1):201
Thompson, M (2011) The neutralization of harmony: whither the good information environment? (forthcoming)
Tomkins A (2003) Public Law. Clarendon Press, Oxford
Vaidhyanathan S (2011) The Googlization of everything : (and why we should worry). University of California Press, Berkeley
van den Hoven J, Rooksby E (2008) Distributive justice and the value of information: a (broadly) Rawlsian approach. In: van den Hoven J., Weckert J. (eds.) Information Technology and Moral Philosophy, p 376
Varian H, Shapiro C (1999) Information rules: a strategic guide to the network economy. Harvard Business School Press, Cambridge
Wallace R (2003) Stanford encyclopedia of philosophy: practical reason. http://plato.stanford.edu/entries/practical-reason. Accessed 1 Sept 2011
Winner L (1986) The whale and the reactor: a search for limits in an age of high technology. Chicago University Press, Chicago
Yoo C (2005) Beyond network neutrality. Harvard J Law & Technol 19(1):26
Zheng Y (2008) Technological empowerment: the internet, state, and society in China. Stanford University Press, Stanford
Zittrain J (2008) The future of the internet : and how to stop it. Yale University Press, New Haven
Acknowledgments
I am happy to acknowledge the generous support of the Alcatel-Lucent Foundation for my position as a Visiting Fellow at the Hans Bredow Institute for Media Research, University of Hamburg, where the first thoughts that led to this paper were conceived. The ideas expressed in the lines below, however, have to no extent been influenced by my institutional affiliation at that time beyond the boundaries of open (and discerning) academic exchange. I thank Wolfgang Schulz and Victoria Nash for thoughtful comments on earlier notes.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2012 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors/editors
About this chapter
Cite this chapter
Thompson, M. (2012). In Search of Alterity: On Google, Neutrality and Otherness. In: Lopez-Tarruella, A. (eds) Google and the Law. Information Technology and Law Series, vol 22. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-846-0_13
Download citation
DOI: https://doi.org/10.1007/978-90-6704-846-0_13
Published:
Publisher Name: T.M.C. Asser Press
Print ISBN: 978-90-6704-845-3
Online ISBN: 978-90-6704-846-0
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
