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.
Hat Tips: Eric Goldman, for link to Greg Linden, for link to Cringley. Though I’m sure Goldman disagrees with all I’m saying!
September 21, 2007 at 3:19 pm
Posted in: Google & Search Engines
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Responses (3)
Bruce Regal - September 21, 2007 at 6:06 pm
I think there is an important distinction to be made between two different kinds of businesses: (1)Companies that are using physically scarce access to public rights of way (streets and highways for telecom cables; spectrum for wireless transmissions)to build transmission facilities, who can be said to have a public obligation to use those facilities, installed in public rights of way, in an open, fair and non-discriminatory manner and in the public interest(and thus to be subject to reasonable regulation to assure compliance with those obligations). (2) Information companies that are so successful in providing information to people that they gain make or break power over others who seek publicity.
Oprah Winfrey gained an astounding ability to turn a book into a nationwide bestseller with her literary recommendations. Of course that doesn’t mean that there should government regulations to make sure she applies that power fairly. Presumably if it became known that Oprah was auctioning off her recommendations to the highest bidder, her influence would disappear (same with Google). On the other hand if the city of Chicago provides access to public streets to AT&T to install telecom cables it seems plausible to argue that AT&T could then, consistent with the First Amendment, be barred from, say, auctioning off exclusive access to its cable capacity in the public streets to the highest search engine bidder or the highest sports web site bidder, etc., thus turning a public right-of-way (the streets, the spectrum) into a private bottleneck. Oprah or Google on the other hand, if they start selling their imprimatur to the highest bidder, merely sell off their own reputations.
Frank - September 21, 2007 at 9:41 pm
Bruce, Those are excellent points, especially on the historical foundations of telco/carrier power. It’s clear that many state actors granted them exclusive franchises on a natural monopoly theory. Google was never granted such a franchise. However, its success is founded on an intricate combination of DMCA, CDA, trade secret, and other laws. One question this raises is whether Congress could bargain with a search engine by threatening to strip, say, its CDA immunity if it refuses to be regulated.
I have three responses regarding your analogy to Oprah:
1) Although the Hippsley Letter from the FTC to search engines strongly suggested they separate editorial content from advertising, I don’t believe it has the force of law of, say, a legislative rule. Here’s news on that letter:
http://www.clickz.com/1379491
Now imagine someone starts suspecting that Google or a similar company is selling off top spaces on the “organic results”–or, more likely, that being a Google customer for paid results is going to lead to better treatment in the organic rankings. Will such a case ever get definitively settled? Two things would prevent such a public legal determination: a) Google’s assertion of a First Amendment right to order information however it chooses, and b) Google’s assertion of trade secrecy in the algorithm used to produce the results.
So I guess I would say that affording search results only weak First Amendment protection is essential to the kind of self-corrective measures you envision.
2) Here’s a good point from Jack Balkin on the basis of media regulation in a “post-scarcity” era:
http://balkin.blogspot.com/2007/08/fairness-doctrine-part-ii.html
“To know whether . . . broadcast regulation . . . is constitutional, we have to know the theory that justifies its regulation. For many years that theory was scarcity. The airwaves were scarce, the argument went; threrefore government could decide who could use them; and therefore government could require broadcasters to act as trustees for the public, who actually owned the airwaves.”
“The scarcity theory is spurious. All resources are scarce. Moreover, it is also misleading to say that the public ‘owns’ spectrum. Spectrum refers the range of frequencies that radio waves may take. Government may create exclusive or nonexclusive rights to operate technologies that broadcast at certain frequencies, but that is not the same thing as saying that one owns those frequencies.”
So what is the real constitutional basis of regulation?
“The government’s authority to regulate broadcasting derives from its authority to solve a coordination problem in the use of this resource. At its most basic, broadcast regulation is a kind of zoning.”
***
“The Supreme Court has frequently stated that the purpose of a renewable licensing system in broadcasting is to ensure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ That is to say, broadcasting policy is a form of information policy. It seeks to give incentives for private actors to produce information that will be useful to the public. Because information is a public good, valuable and useful information will likely be underproduced by market forces acting alone, so government investments in and regulations of information production can help make up the slack, as long as they do not otherwise violate the First Amendment. Therefore the government may impose conditions on licensees if they help promote this goal.”
Here is my (very rough) take on why search results are like spectrum. From a Benklerian perspective on peer-produced knowledge, search results are essentially a reflection of mass collective intelligence in sorting materials on the web. We the people have effectively created this resource, with initial coordination by search engines like Google and Yahoo.
Search engines deserve a great deal of credit for catalyzing and coordinating that production of knowledge. But I do not believe they are entitled to carte blanche control over all that occurs on the platforms they’ve set up. Given how cannily they’ve disclaimed being media companies in other contexts, I don’t believe they have reasonable investment-backed expectations to complete control there. Moreover, I don’t believe such platforms deserve such control, as I suggest here:
http://www.concurringopinions.com/archives/2007/04/is_myspace_expl.html
You may object that licensing and/or regulation is outdated in a “post-scarcity” era–anyone can start a search engine, right? But in a co-authored piece “Federal Search Commission,” we try to show how hard that is.
Moreover, socially induced scarcity is just about as worrisome as technologically induced scarcity. If very few search engines dominate the search market, that situation strikes me as very similar to a situation where very few broadcasters dominate the market. You may say the latter outcome is more the result of state action than the former–but I see the types of IP and cyberlaw rights and immunities search engines have been granted as an important form of state action. And I doubt that, for First Amendment purposes, search engines are all that different from the cable companies that have been forced to comply with must-carry requirements.
Perhaps search oligopolists are “off the hook” antitrust-wise if their market dominance developed “naturally.” But they need not be left wholly unregulated as a consequence.
The ideas that I’ve proposed for regulating search have revolved around something like a “right-of-reply” for those harmed by their results, and some due process in the case of suspect rankings shake-ups. At least the former has some parallel in broadcast regulation, the “fairness doctrine.” Here is Balkin on that concept:
“Finally, we come to the fairness doctrine. Remember, it has two prongs. The first prong states that licensees must cover issues of public concern regularly. This has a clear nexus to the information policy goals of broadcasting regulation. The second prong says that when licensees cover issues of public concern, they must do so fairly while giving attention to competing points of view. This is a content based regulation, but it is not a viewpoint based regulation. It says that if you have a viewpoint, whatever your viewpoint is, you must offer contrasting perspectives so that the audience can judge for itself. A rule that said that the doctrine only applied if you took a particular position would be both content based and viewpoint based.”
“The purpose of the fairness doctrine is clearly connected to the purposes for the licensing system: promoting the dissemination of diverse and antagonistic sources of information, particularly about issues of public concern. It performs this function, but not all that well, in my opinion. As I noted in my first posting, I don’t believe the fairness doctrine is good public policy. But the constitutional question is whether there is a reasonable nexus to the underlying goal. It is hard for me to say that the nexus is not there.”
3) Finally, I guess matters get even more complicated if Google itself becomes a carrier, as this post suggests:
http://blogoscoped.com/archive/2007-09-21-n66.html
Eric Goldman - September 24, 2007 at 2:51 pm
I actually partially agree with the direction you’re going. The Net Neutrality discussion is tricky for Google, because it is trying to make a case why neutrality is required at the infrastructure layer but discrimination is required at the content/application layer. I know it can offer rationales to distinguish these, but its arguments are susceptible to a high risk of confusion and misinterpretation. Eric.
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