A History of Online Gatekeeping

Abstract

The brief but intense history of American judicial and legislative confrontation with problems caused by the online world has demonstrated a certain wisdom: a reluctance to intervene in ways that dramatically alter online architectures; a solicitude for the collateral damage that interventions might wreak upon innocent activity; and, in the balance, a refusal to allow unambiguously damaging activities to remain unchecked if there is a way to curtail them. The ability to regulate lightly while still curtailing the worst online harms that might arise has sprung from the presence of gatekeepers. These are intermediaries of various kinds - generally those who carry, host, or index others' content - whose natural business models and corresponding technology architectures have permitted regulators to conscript them to eliminate access to objectionable material or to identify wrongdoers in many instances. The bulk of this Article puts together the pieces of that history most relevant to an understanding of the law's historical forbearance, describing a trajectory of gatekeeping beginning with defamation and continuing to copyright infringement, including shifts in technology toward peer-to-peer networks, that has so far failed to provoke a significant regulatory intrusion. I argue that the U.S. Supreme Court's Grokster decision upholds this tradition of light-touch regulation that has allowed the Internet to thrive. The decision thus is not a landmark so much as a milestone, ratifying a continuing detente between those who build on the Internet and those in a position to regulate the builders. Grokster may have achieved such a fit with its ancestors by avoiding a set of now-pressing issues about gatekeepers. This avoidance is revealed by looking at Grokster's outcome: a loss for Grokster Ltd. that has no practical impact on the distribution and use of the sort of PC software that got Grokster Ltd., in trouble. The most recent peer-to-peer technologies eliminate a layer of intermediation from the networks they create; there are often no longer central websites or services that can be blamed, and then shut down or modified, to dampen the objectionable activities that they enable. Even decentralized Internet service providers may prove unable to intercede much as new overlay networks cloak users' network identities in addition to their personal ones. The loss of these natural points of control will cause those with challenged interests to foreground a new and less palatable set of intermediaries: software authors. These authors may be asked to write their software in such a way that it can be recalled or modified after it has been obtained by a user and then put to an undesirable purpose. They may even be asked to program their software to disable the installed software of others. Control over software - and the ability of PC users to run it - rather than control over the network, will be a future battleground for Internet regulation, a battleground primed by an independently-motivated movement by consumers away from open, generative PCs and toward more highly regulable endpoint platforms.

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