Online Gatekeepers to Commerce and Culture

Recently, the term “gatekeeper” has featured prominently in policy discussions concerning whether “big tech” needs to be regulated and whether antitrust laws need to be reformed to better protect consumers from their market power. Consequently, this Article asks: what exactly is an online gatekeeper? Within that discussion, it also asks whether the term is useful within antitrust. Next, it discusses some general guidelines that should be considered when determining whether an online service qualifies as a gatekeeper. Finally, it discusses potential concerns with gatekeepers that go beyond the standard litany of antitrust theories of harm — namely, information asymmetries and representations made to users and businesses.

By John M. Yun¹

I. INTRODUCTION

In the 1990s, the typical path to the Internet was a subscription to America Online (“AOL”) using a dial up modem on a Microsoft Windows computer. AOL was, at the time, the dominant online presence and offered what was commonly referred to as a “walled garden” — providing email (who can forget the notification “You Got Mail”), messaging, and website access for an hourly and, later, monthly fee.² A walled garden is an online ecosystem where the provider exerts considerable control over the content including restricting access to non-approved content.³ The emergence of broadband internet access (such as, DSL and cable modems) and standalone web browsers, such as Netscape, began to change that