The myth of the free, unregulated Internet

Who regulates the Internet? If you answered “nobody”—because the government keeps its hands off—read on.

Earlier this month, The New York Times exposed a squalid online mini-industry that makes its money from posting photos taken of people who’ve just been arrested—not drunken celebrities at the rag end of a frolic, but ordinary people.

This is one media sector with an inexhaustible supply of fresh content to publish. Booking photos are public documents, and a lot of people get arrested every day.

But how does anyone make money from this? Do people pay to gawk at the mug shots? No, the sites—and The Times says more than 80 have sprung up over the past three years—charge the people who were photographed anywhere from $30 to $400 in exchange for not publishing the pictures.

This certainly seems like a despicable little shakedown. Worse, people who get arrested often are never convicted of a crime, and may not have done anything wrong. Moreover, once the photos are posted they’re likely to linger elsewhere on the Internet even after the originating sites remove them. For the unlucky arrestee, what might have been a fleeting embarrassment continues to hover and ache, like a bad hangover.

It’s not right. Several states have had a go at legislation compelling sites to take down the pictures of anyone who’s exonerated, or barring the cops from releasing mug shots to profit-seeking entities.

Press advocates, understandably, object to restrictions on access to public records. I’d say people have a right to control use of their images for purely money-making purposes even if the images are obtained from a public data base.

But admittedly, laws limiting access to mug shots or curtailing what can be done with them may be unconstitutional.

While the law dithers, however, the real regulators of the Internet can act.

Enter the privatized world of Internet regulation. It appears that after being approached by Times reporter David Segal, the paymasters who handle the cash that lubricates the online economy suffered spasms of conscience.

Shocked, they said, by what they now knew about their clients, MasterCard decided the mug shot sites were “repugnant,” and American Express, PayPal and Discovery announced they wouldn’t handle the money anymore. Visa asked the banks it uses to look into the legality of the sites. Big trouble looms.

Now, I wouldn’t weep if the mug shot sites went dark. But among the commentators on this affair, Kevin Drum of Mother Jones was one of few who asked the most significant question: “Should credit card companies get to decide who does business on the web?”

This sort of thing has happened before. In December 2010 those same financial companies—along with Western Union, Amazon and Bank of America—went after Wikileaks and suddenly refused to process donations to the anti-secrecy network that was channeling sensitive U.S. data to the world’s news media.

The explanation for the cutoff was soggy. MasterCard mumbled something about prohibiting customers “from directly or indirectly engaging in or facilitating any action that is illegal,” which was a joke, since the range of illegalities that charge-card use “indirectly facilitates” every day is as limitless as the catalogue of human sin.

That was an instance, it seemed clear, of financial giants toadying up to an Administration furious over the sensational reporting Wikileaks had enabled. But because the decision to starve Wikileaks of funding was executed by private entities, this outsourcing of censorship eluded constitutional scrutiny.

Then, a few months later came another variant of online vigilante justice when Google reacted to evidence of flagrant manipulation of its search engine by downgrading the wrongdoers on its massively influential results pages.

Frankly, I didn’t have much sympathy for JC Penney and Overstock.com, whose optimization specialists had tricked Google’s algorithm into ranking the retailers as highly regarded places to buy specialty goods that they barely sold at all.  That was deceptive, and Google put an end to it.

But Google’s unchecked power bothered me. Google can put companies out of business. The overwhelming importance of ranking atop Google’s search results—determined by weightings constantly revised at the company’s sole discretion—gives Google power over commercial survival comparable to that of the mightiest civil courts. Yet it’s an authority based neither on statute nor precedent, and it isn’t subject to appeal.

Thus is the unregulated Internet being regulated, sometimes wisely, sometimes harshly, by the powerful. They apply standards that are never articulated in any intelligible way and which have never been reviewed, let along approved, by the rest of us. So the powerful shape the rules in ways that suit their needs, and that makes the Internet uncomfortably like the offline world that it sprang from.

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