Law and Information

I have the pleasure to participate in a terrific conference on “Regulating Search?” organized and hosted by our friends at the Information Society Project at Yale Law School. Here is my first discussion paper. I will post a second one later on:

Regulating Search?
Sketching a Normative Framework for Assessing Regulatory Proposals

1. The question of this symposium – Regulating Search? – can be approached from various angles and at different levels. In any event, one might expect, inter alia, that several proposals of legal and/or regulatory actions aimed at regulating search engines, ranging from consumer protection laws, IP reform, etc., will be up for discussion. Presumably, the respective proposals will pursue different policy goals and use different regulatory techniques.

2. In a later phase, proposals like this are likely to enter into competition with one another. Lawmaking and regulation are costly processes, requiring that choices about goals and means be made. Against this backdrop, a systematic comparison and isolated evaluations of regulatory proposals become essential in order to make well-informed and sustainable decisions. A look back at the history of what has been termed “cyberlaw,” however, reveals a prevalent lack of thorough assessment of legislative and/or regulatory actions, in part because such an assessment requires an open discussion and shared understanding of what fundamental policy objectives should underlie today’s information society in the first place. This failure should not be repeated in the future and with regard to a potential regulation of “search.”

3. I would like to suggest three core values (or policy goals) of a democratic information ecosystem that may serve as the benchmarks for assessing proposals aimed at regulating search engines in particular and search more generally: Autonomy, diversity, and quality. Informational autonomy includes at least three elements. First, an individual must have the freedom to make choices among alternative sets of information, ideas, opinions, and the like. This includes the freedom to decide what information someone wants to receive and process. Second, informational autonomy as an aspect of individual liberty necessitates that everyone has the right to express her own beliefs and opinions. Third, autonomy in the digitally networked environment arguably requires that every user can participate in the creation of information, knowledge, and entertainment.

4. The development of an individual’s own personality and self-fulfillment intersects with a second core value of the digitally networked ecosystem: its diversity. Diversity in the sense of a wide distribution of information from a great variety of competing sources can either be seen as a valuable mechanism to attain truth, or as a crucial instrument for protecting democratic process and deliberation. In the digital environment, however, the diversity of information, knowledge, and entertainment is an important aspect of the broader concept of cultural diversity.

5. As individuals, groups, and societies, we heavily depend in our decision-making processes on information, which is increasingly acquired over the Internet. In order to make good decisions, we depend on quality information, i.e., information that meets the functional, cognitive, aesthetic, and ethical requirements of different stakeholders such as users, creators, experts, and administrators. Consequently, legal and regulatory regimes should contribute to the creation and further development of a high-quality information ecosystem.

6. Each proposal that seeks to regulate search in general and search engines in particular can be evaluated based on these normative criteria. Even with this normative framework in place, however, the assessment of alternative governance regimes gets complicated, since the three policy goals “autonomy,” “diversity,” and “quality” are not necessarily always aligned. Unleashed diversity in the digitally networked environment, for instance, might have negative feedback effects on user autonomy because it increases an individual’s risk to be exposed to undesired information. A regulatory approach aimed at ensuring high-quality information, by contrast, might be in tension with informational autonomy, because it may impose a quality requirement leading to a level of quality that does not meet an individual’s informational needs.

7. As a consequence, governance proposals for search engines and their environments face the challenge of achieving a balance among three policy goals that are not perfectly aligned. In the case of search engine regulation, this problem is accentuated by the fact that search engines simultaneously affect all three aspects. For example, since search engine users often do not know in advance what specific piece of information they are looking for, the quality of the information that users get depends to a great extent on search engines. Consequently, the quality of information is intertwined with the quality of the search engine that defines which information becomes available based on any given query. Similarly, search engines have effects on autonomy and diversity in the digitally networked environment. Against this backdrop, regulation of search (engines) is a particularly complex task because each regulatory intervention focusing on one issue almost certainly affects another element of the normative framework.

8. In conclusion, this discussion paper calls not only for a careful design of legal or regulatory actions aimed at governing “search,” but also for a thorough assessment of legislative and/or regulatory proposals and their potential effects against the backdrop of core values of a democratic digital environment (system of “moving elements”). In that sense, the paper also advocates for a systemic view of “search” regulation, where “search” is understood as one element that interacts with other elements of the digitally networked environment, including decentralized content production and peer-to-peer distribution of digital content.

Comments welcome.