Google’s Self-Undermining First Amendment Strategy
posted by Frank Pasquale
As Google grows, regulators are starting to take notice. Many have written about the scary privacy implications of massive database coordination, but the legal discussion is only beginning about the results of Google searches. Consider the fate of countless businesses which depend for their livelihood on internet-based customers. John Battelle chronicled one small business’s Google crisis:
Right before the critical holiday shopping season of Thanksgiving and Christmas, the phones stopped ringing at [large-shoe seller] 2bigfeet.com. . . . [it] was no longer the first result for “big feet” on Google. In fact, it wasn’t even in the first hundred results. As [business owner Neil] Moncrief put it, it was as if the Georgia Department of Transportation had taken all the road signs away in the dead of night, and his customers could no longer figure out how to drive to his store. . . .
Google had tweaked its search result algorithms, something the company does quite frequently. But this time Google’s modifications, which were intended to foil search engine spammers – people who dishonestly modify their web sites to rank higher in search engine results – had somehow sideswiped Moncrief’s site as well. What Google giveth, Moncrief learned the hard way, Google can also take away.
When a company can exercise make-or-break power over internet-based businesses, does it need to be held accountable to some standards? Google says that it does not–that it has a First Amendment right to rank web entities as it pleases. But consider what Google itself thinks of the companies that own the “pipes” that transmit its services.
Robert X. Cringely succinctly presents the following nightmare scenario for Google:
Microsoft is a Pyramid of Giza compared to Google, whose success is dependent on us not changing our favorite search engine. But what if it is changed for us? What if Verizon, and AT&T, and Comcast, and half a dozen other huge broadband ISPs suddenly cut deals with some search company other than Google and your ISP-supplied browser and homepage no longer give such prominence to Google? The G-folk have rabid competitors who would very much like to take over that top spot. Would we even notice? How different are the search results these days from one engine to another? Not very different.
I think Cringely is wrong about the vulnerability of Google (absent a scenario like this), and I do think there is some diversity in search engine results. Nevertheless, the situation he describes is scary enough for Google to spur it to lobby for “net neutrality” rules designed (in part) to prevent upstream providers of “conduits” from squeezing content providers for more dough–or shutting them down altogether.
Some say net neutrality is dead; others see hope post-2008. What is striking to me is the way in which Google appears to be embracing expansive interpretations of the First Amendment now in ways that will undermine fights for net neutrality in the future. For just as Google claims that it is has a First Amendment right to order web pages as it pleases, broadband carriers may claim that they have a First Amendment right to avoid government regulation. Is their “message” that much different than Google’s?
Admittedly, Google may be banking on a legacy of limited protection for carriers to continue immunizing government regs on them while it gets to do its own thing. Though Christopher S. Yoo complains of “architectural censorship” of carriers by the FCC, he said in 2005 that “current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny.” I think “censorship” is the wrong word for regulation here–but if it must be used in the search context, I hope the same line of cases apply there, too.