Beyond Competition and Innovation: The Need for Qualified Transparency in Internet Intermediaries

 Innovation Law and Policy Workshop
University of Toronto Faculty of Law
 
presents
 
Professor Frank Pasquale
Seton Hall Law School
 
Beyond Competition and Innovation:
The Need for Qualified Transparency in Internet Intermediaries
 
Wednesday, January 27, 2010
12:30 – 2:00
Dining Room – Flavelle House – 78 Queen’s Park

 
Internet service providers and search engines have mapped the web, accelerated e-commerce, and empowered new communities. They also pose new challenges for law. Cyberlaw’s focus on conflicts between these intermediaries is becoming less relevant as they cooperate more in joint ventures. While such combinations can be economically efficient, they have many troubling consequences for users. Individuals are rapidly losing the ability to affect their own image on the web­or even to know what data others are presented with regarding them. When web users attempt to find information or entertainment, they have little assurance that a carrier or search engine is not biasing the presentation of results in accordance with its own commercial interests.
 
Technology’s impact on privacy and democratic culture needs to be at the center of internet policymaking. Yet before they promulgate substantive rules, key administrators must genuinely understand new developments. While the Federal Trade Commission and the Federal Communications Commission have articulated principles of editorial integrity in search engines and net neutrality for carriers, they have not engaged in the monitoring necessary to enforce these guidelines. This article proposes institutions for “qualified transparency” within each Commission to fill this regulatory gap. Qualified transparency respects legitimate needs for confidentiality while promoting individuals’ capacity to understand how their reputations­and the online world generally­are shaped by dominant intermediaries
 
Frank Pasquale is the Loftus Professor of Law at Seton Hall Law School, where he is also associate director of the Gibbons Institute for Law, Science & Technology. In 2009, he was a visiting professor at Yale Law School (in the Spring) and Cardozo Law School (in the Fall). He is presently an affiliate fellow of the Yale Information Society Project. He serves as a legal advisor to the Health Impact Fund, an NGO committed to reforming patent laws and health-care financing to create incentives for pharmaceutical research to help the developing world. Pasquale clerked for the Honorable Kermit Lipez of the US Court of Appeals for the First Circuit and has served as a fellow at the Institute for the Defense of Competition and Protection of Intellectual Property in Lima, Peru. He joined the Seton Hall faculty after practicing at Arnold & Porter LLP, where his work included antitrust and intellectual property litigation. In 2008, Professor Pasquale testified before the House Judiciary Committee, presenting Internet Nondiscrimination Principles for Competition Policy Online.
 
B.A., 1996, Harvard University (summa cum laude); M.Phil., 1998, Oxford University (Marshall Scholar); J.D., 2001, Yale University