You say “if we don’t know how a decision is made, we might want to limit the range of its effects.” in the context of trying to draw a line “between algorithm-driven results and corporation or person-driven results”. I’m not sure there is such a principled distinction to be drawn. First, we assume too much knowledge on our part about the reasons why humans come to certain decisions. Very often human beings confabulate reasons for the decisions they make (there is a large psychological literature on this). And secondly, our own decisions are to a certain extent programmed, by societal expectations, education, culture, upbringing, language, gender, nationality and what have you. Where one kind of decision changes from the “purely algorithmic” to the “decidedly human” is not clear.

Later, you go on to say, “It seems to me that Google is fundamentally like a map of the web, rather than an expression of a point of view.” But maps can very often to be expressions of point of view, reflecting the biases or the interests or values of the map maker in what they choose to depict, highlight, ignore or selectively crop. Google’s map-making, for better or worse, generates a contoured map of the Internet landscape, pointing out routes we should take on our travels and often, suggesting what we should buy along the way!

Incidentally, in the software as speech cases, are you thinking of Bernstein v. US DOJ 1999? Or the DeCSS case?

sorry; can’t help pulling out the blue pencil from time to time . . .

This search result page was written by:

Jonathan

Mahalo’s goal is to hand-write the top 20,000 search terms.

You can help by recommending your favorite links.

And I concede that the line I am trying to draw between “algorithm-driven results” and corporation or person-driven results may be too weak a hook on which to hang any persuasive legal distinctions. (forgive the mixed metaphor!) But to build on James’s point, perhaps my key argument here is that, if we don’t know how a decision is made, we might want to limit the range of its effects.

James: I have to reread the relevant cases on software as speech (I think there is a Robert Post article on the topic I really need to get my hands on). But I guess I would fall back on the idea of levels of First Amendment protection. It seems to me that Google is fundamentally like a map of the web, rather than an expression of a point of view. That certainly is the way they present themselves; see, e.g., this comment I gleaned from Google’s SEC Reg. Statement (hat tip to Lastowka’s latest):

“Google users trust our systems to help them with important decisions: medical, financial and many others. Our search results are the best we know how to produce. They are unbiased and objective, and we do not accept payment for them or for inclusion or more frequent updating.”

And Bracha and I cite some cases in our FSC article where mapmakers are denied First Amendment protection for their wares. I would not deny Google protection in toto because there are a lot less “degrees of freedom” in webmapping than in earthmapping. But I also think that there needs to be accountability in the former profession, especially if (as I believe) one company is likely to be doing an ever-increasing share of the production of the basic results everyone else uses.

Now, as for “social search,” perhaps I should have said “human powered search,” because I was thinking of Mahalo. For example, I think there is an actual editor in charge of a page like this:

http://www.mahalo.com/Trip_to_costa_rica

Of course, some say that competitors like Mahalo make Google’s dominance less noteworthy than I think it is. But this page suggests that Mahalo is less a competitor than a coadjutor of Google:

http://mahalo.com/Special:Search?search=Trip+to+Puerto+Rico

There is an interesting question here though about who can claim rights in works/results/etc. produced by programs. I.e., stuff that is one level removed from the original programmer. Obviously the programmer can claim speech and IP rights in the program itself. But can he or she claim rights in what the program produces? E.g., musical works spontaneously generated by the program? The answer to that seems to get into the weeds rather quickly.

As for personhood, the Google algorithm falls well short of the complexity and behavior that would lead us to regard it as being a person in a meaningful philosophical or useful sense. But an AI that produced search results and were in other respects sophisticated enough to be a proper subject of personhood arguments — I think you might find that it looked a lot better than the Google algorithm does, in terms of its speechiness.

Don’t be misled by automation versus manual decision-making as a categorial matter. Algorithms express the values and choices their programmers pour into them. There is speech here, and it’s valuable. The kinds of arguments you want to make hinge on secrecy and on the massive power that search engine rankings wield.