Originally posted at SSRN.

Abstract

If in William Blackstone's time we might have thought of a person's home as their castle, in Mark Zuckerberg's time we might say that their website is too. Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers--as property owners that may permit and restrict access to websites much like landowners may do with private land in the real world. If platforms withhold their consent through words or inference, cyber-trespass laws let them enforce their preferences about who may access their services and gather information from the internet. Concerned about reputations and profits, platforms have deployed their gatekeeper rights to scare and sue those seeking to use their websites against their wishes. This legal regime affects all sorts of actors-from academics to journalists to businesses to consumers-who want to engage with the platforms' websites, even when they're open to the public or when people permit complementary services to access their accounts.

This Essay challenges the law's current embrace of gatekeeper rights. Applying cyber-trespass law across the entire internet has empowered private platforms to become public policymakers in unintended and unchecked ways. But it's not too late to adopt a different legal regime-one that defers far less to private companies to establish and enforce the internet's accessibility and informational rules. This Essay offers a three-part legislative framework to restrain the power of digital gatekeepers. To begin, Congress should clarify that cyber-trespass laws don't apply on websites that are accessible to the general public. Congress should then mandate and shield certain forms of interoperability between platforms. Finally, Congress should pass targeted laws to regulate the collection and use of publicly accessible information on websites. Taking these steps will change the locus of governance in key internet policy choices, stripping private platforms of the unbounded and trans-substantive decision making power they currently enjoy. Although this regulatory agenda is ambitious, these are the kinds of fundamental and structural changes needed to protect privacy, speech, and consumer interests in the digital age.

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