Note: this is post #3 of a multi-part series.
The most technical part of Jack Balkin’s latest work, which is titled “How to regulate (and not regulate) social media”, is Part 1 of the paper, where Professor Balkin identifies three different types of Internet services and organizes them hierarchically as follows:
- Basic Services. At the bottom of Balkin’s Internet hierarchy are firms that provide “basic Internet services”, including domain name registration providers like GoDaddy and Wix, Internet service providers like AT&T and Verizon (FYI: here is a list of the largest Internet providers in the US), and data storage providers or “cloud” services such as Amazon Web Services and Microsoft Azure.
- Payment Services. In the middle of this cyber-hierarchy are firms like Visa, MasterCard, and PayPal that provide electronic payment services over the Internet.
- Information and Networking Services. At the top of Balkin’s hierarchy are firms like Google and Facebook–that is, firms that offer Internet search engines or social media platforms.
Why does Professor Balkin draw these distinctions between (i) basic Internet services and (ii) payment services and (iii) information/networking services? In short, because Balkin is willing to leave the first two categories completely alone, since “content moderation … is not their job” (p. 74). Instead, Balkin argues we should treat payment and basic services the same way we treat public accommodations (i.e. all customers should be allowed to use all such payment and basic Internet services as long as they are not using those services to engage in an illegal activity), or as Balkin himself puts it (p. 73), “Let the bits flow freely and efficiently. Don’t try to engage in content regulation at this level.”
The key question for me, then, is this, Why won’t Prof Balkin extend this “hands off” or laissez faire logic to business firms that provide information or networking services? In other words, what makes search engines or social media platforms so dangerous or harmful that they must be regulated? What about text messages, for example? Should text messages also be subject to content regulations? Professor Balkin will address these questions in the next part of his paper (Part II), which I will review and respond to in my next post …