The rise and rise of online intermediaries in the governance of the Internet and beyond – connectivity intermediaries

This article is the first of a trilogy that examines the growing role of online intermediaries within the governance of the internet and beyond. The theoretical background for this is provided by two very different narratives of regulation of and through technology: Spar’s regulatory cycle in response to new technological inventions and Foucault’s account of the panopticon effect in modern regulation. The currency of these narratives is tested against the regulatory reality of the internet, which is increasingly informed by cases and legislative measures taken against online intermediaries, such as ISPs, Google, eBay, Facebook or Wikipedia. This raises the question of why intermediaries should be such popular regulatory targets in the first place. Recent case law and legislative instances implicitly highlight the importance of intermediaries – as transactional and communicative chokepoints – within the regulatory agenda per se. If intermediaries can be controlled or used as regulatory vehicles, so can the regulatory space in
question. This first paper examines the legal treatment of connectivity intermediaries, i.e. ISPs, to be followed by two papers focusing on search engines, on the one hand, and Web 2.0 providers and other hosts, on the other hand.