Excellent Globe Article on Novel Problems Raised by Google
posted by Frank Pasquale
The Boston Globe Ideas section (and blog) have published some great pieces recently, and Drake Bennett’s piece on Google is no exception. Bennett does an excellent job canvassing the myriad new legal problems generated by the search company’s dominance. Here’s a taste:
There is no evidence that Google systematically distorts its results. According to a Google spokesman, “It’s in our best interest to act responsibly and be as transparent as possible.” The problem, critics argue, is that the workings of Google’s search algorithm are a closely guarded secret, so we have to take the company at its word.
In the United States, there have been two court cases dealing with this issue, lawsuits brought against Google by online companies that saw their rankings, and, as a result, their earnings, suddenly and precipitously drop, and that accused Google of having intentionally targeted them - one was a company that offered strategies to improve Google rankings, a practice Google has publicly condemned. In both cases, the courts ruled for Google, arguing that whether or not it had manipulated its rankings, those rankings were “evaluative opinions” and therefore protected by the First Amendment.
One response, in light of the legal protection that Google enjoys, is to craft new laws around the use of search engines themselves. In Finland, for example, it is now illegal for companies to do Web searches on prospective hires . . . .
Another is an idea put forward by Pasquale of Seton Hall. In a few recent papers, he has proposed what he calls a “right of reply” to search results. If, for example, the top results to a query about an individual are slanderous or otherwise damaging to his reputation, that person, Pasquale argues, should have the right to put an asterisk by the findings that links to a rebuttal.
Pasquale and others have also argued that it may be time to rethink the legal protection Google’s rankings now enjoy. The company’s secret page-ranking algorithm is at the heart of Google’s success: It was the founding technology of the company, and has been modified over the years to produce more useful results and foil companies that try to manipulate it. But critics now suggest that Google’s technology is now too influential to remain one company’s black box.
Google and its defenders argue that making the search algorithm public would be a disaster, not only for the company, which would lose much of its competitive advantage, but for Web searching itself, since everyone who wanted to game the rankings would have a road map for how to do it. In response, Oren Bracha, an assistant professor of law at the University of Texas, suggests that cases of potential search engine bias could be treated the way terrorism trials with classified information now are: in a sealed proceeding that prevented evidence from leaking out into the wider world. . . .
Google is now grappling with the consequences of its runaway success. It has been so good at making so much information so readily available that its own search function has come to seem less like a private service and more like a right. In theory, of course, it is easy for a Google user to defect to another search engine. But there is a reason “Google” has become a verb: Google has so outpaced its rivals that it has begun to look like a monopoly, a necessity where users have only one real option. And the more we come to rely on Google, the more Google may have to listen to the rest of us. [emphasis added]
That is an eloquent conclusion for an extraordinarily insightful article.
June 22, 2008 at 12:08 am
Posted in: Google & Search Engines
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Responses (8)
KipEsquire - June 22, 2008 at 12:19 am
Typical street thug mentality: steal it if you can; destroy it if you can’t.
(The difference is, of course, that street thugs have the intellectual honesty not to call themselves “eloquent.”)
Orin Kerr - June 22, 2008 at 11:52 am
It has been so good at making so much information so readily available that its own search function has come to seem less like a private service and more like a right.
I’m curious, do others feel this way? This statement seems tremendously strange to me.
just me - June 22, 2008 at 5:48 pm
yeah, very strange and entitleish. “i use it a lot so i feel like i have ownership rights over it.”
also a very loose definition of monopoly as to consumers, since consumers can use any number of well known search engines, for free, at no cost to themselves.
Brett Bellmore - June 22, 2008 at 9:30 pm
Yeah, looks a great deal like a monopoly to anyone who doesn’t know what a monopoly is. Personally, I use yahoo rather than google; I find the results more useful.
Jon Garfunkel - June 22, 2008 at 11:37 pm
Frank– good job.
Oren– indeed, this sounds strange, from a *legal* point of view. But rhetorically it’s fine. It’s not unusual to think that we have a “right” to expect that technology works without bias.
From the article: “A ‘right of reply’ would be difficult to put into practice…”
I’ve explained to Frank before that I have practical experience in helping someone overcome what I dubbed search engine obfuscation. My conclusion was that there were some simple steps Google could take to help individuals remedy these sorts of ranking issues (though not all).
Orin Kerr - June 23, 2008 at 12:57 am
Jon,
It certainly sounds unusual to me to think that we have a “right” to expect a computer program to work the way we want it to work. If my hard drive crashes or my Internet access is out, I would would think it pretty strange to say that the computer malfunction “violated my rights.” (Right to what? Conferred by whom?)
Ace - June 23, 2008 at 9:26 am
In Google’s Boardroom, in 2008:
Engineer: I have written the next great internet platform and application. It will make us the dominant internet company for the next 20 years. It will change the way users interact with their computer and their information. It will bring about efficiencies in countless industries, increasing production across the globe.
Lawyer: Dominant internet company for the next 20 years? We should scrap the program.
Engineer: What? Why?
Lawyer: We can’t be seen as getting a monopoly. We can’t bring too much service to the consumer, or else too many of them will choose us. They might think they have a right to algorithms running the program.
Engineer: But it will be good for the world. Everyone wins.
Lawyer: It will be bad for Google. Delete your program.
Jon Garfunkel - June 23, 2008 at 6:52 pm
Orin,
Take it up with Colin Crawford’s 2003 article Cyberplace: Defining a Right to Internet Access Through Public Accommodation Law.
If people can see Internet Access as a right, so they can with Google access.
Jon
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