Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing
![handle is hein.journals/jocoso49 and id is 193 raw text is: LET THE CRAWLERS CRAWL: ON VIRTUAL
GATEKEEPERS AND THE RIGHT TO EXCLUDE
INDEXING
Niva Elkin-Koren'
I. INTRODUCTION
The high hopes associated with the Internet for enhancing freedom of
speech and personal autonomy were tied to its decentralized nature.
Technically, anyone connected to the net could post their content and make
it available through various channels to a massive number of people. For
speakers the net was a powerful platform for efficiently expressing their
views or distributing content to the public at large. Yet, the proliferation of
information introduced a new challenge of how to capture users' attention.
While posting on the web may be inexpensive and easy, making your
content noticeable and detectable by users becomes extremely competitive.
Since it is no longer feasible to restrict the available content on the web,
information providers increasingly seek to directly control users' attention.
The proliferation of information in cyberspace challenges not only
speakers but also users. While in the past individuals suffered from lack
of information that was necessary to perform their transactions or exercise
their political rights, cyberspace creates an information overflow.
Consequently, users are increasingly dependent on technical means that
allow retrieval and selection of relevant information from the large bulks of
available data. Search engines were developed to serve this function.'
Search engines are becoming the new virtual gatekeepers of cyberspace.
Information that is undetectable, or otherwise remains unlisted on the
Senior Lecturer, University of Haifa School of Law. J.S.D. Stanford Law School, 1995; LL.M.
Harvard Law School, 1991; LL.B. Tel-Aviv University, 1989. I thank Michael Birnhack, Michael A.
Einhorn, Peter Hirtle, Helen Nissenbaum, Eli Salzberger, Haim Ravia, and Alfred C. Yen for their
valuable comments. I also wish to thank the participants of the faculty colloquium at IDC and the
participants of the Interdisciplinary Conference on the Impact of Technological Change on Intellectual
Property at Ohio State University in which portions of this paper were presented. I am grateful to
Matan Goldblat and Yael Bregman for their research assistance.
The first search engine, Archie, was developed by Alan Emtage, a student at McGill University
in 1990, before the World Wide Web was created. See WES SONNENREICH & TIM MACINTA, WEB
DEVELOPER.COM GUIDE TO SEARCH ENGINES 1-2 (1998) [hereinafter WEB DEVELOPER.COM].
EDITORS NOTE: This article originally appeared in Volume 26 of the University of Dayton
Law Review, pp. 179-209.
Let the Crawlers Crawl
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Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing
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