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Jeffrey Jarosch

Abstract

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate Internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (“API”). These investigations represent a new attempt to shift the network neutrality debate to higher-level Internet platforms. Rather than focusing on providing basic Internet access neutrally, these novel neutrality claims look to platforms that are built upon the Internet, and seek to ensure that they, too, behave “neutrally.” Unfortunately, network neutrality principles do not transition well from Internet service providers to search engines and social media sites. Ultimately, the network neutrality debate serves as a poor tool for scrutiny of higher-level Internet platforms. This Article demonstrates that network neutrality cannot be applied to higher-level Internet platforms and then examines another possible method of analyzing novel neutrality claims using antitrust law. It re-frames novel neutrality claims as tying arrangements, the subject of extensive antitrust law and scholarship. In applying tying doctrine to novel neutrality claims, this Article demonstrates that it, too, is insufficient for examining novel neutrality claims on Internet platforms. The Article closes by proposing a different analysis to examine these novel neutrality claims, an analysis based on Justice O'Connor's attempt to reform tying doctrine.

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