Does Google Have a Right to Censor?
posted by Frank Pasquale
Jeffrey Rosen had an excellent article on “Google’s Gatekeepers” today, focusing on the company’s legal and policy decisions about what content to index. For example, after a group of videos mocked Turkey’s founder, Google’s deputy general counsel Nicole Wong
decided that Google . . . would prevent access to videos that clearly violated Turkish law, but only in Turkey. . . [Then] a Turkish prosecutor made a sweeping demand: that Google block access to the offending videos throughout the world, to protect the rights and sensitivities of Turks living outside the country. Google refused, arguing that one nation’s government shouldn’t be able to set the limits of speech for Internet users worldwide. Unmoved, the Turkish government today continues to block access to YouTube in Turkey.
China’s government, controlling access to a much larger market, may be getting more deference. (For visual evidence, check out pages 9-10 of James Grimmelmann’s The Google Dilemma).
Rosen’s article focuses on the oddity of having one company’s legal team make so many decisions about effective access to information. He also mentions what may become a growing trend in the area–speech-loving nations’ efforts to leverage their influence over Google to force it to index and rank materials detested by censors. Disclosure is a first step, and “some House Democrats and Republicans have introduced a bipartisan bill called the Global Online Freedom Act [GOFA], which would require that Internet companies disclose to a newly created office in the State Department all material filtered in response to demands by foreign governments.” Though team Obama-Schmidt may keep this initiative on the backburner in the US, Europe and Canada could have leverage, and YouTomb may end up documenting much of the censorship (if it gets proper foundation support).
If a souped-up GOFA (or must-carry rules for search engines) ever got traction in the US, Google would have some interesting options available to fight regulation. While the Google employees interviewed in Rosen’s article did not discuss the company’s own rights, its legal team has argued in prior cases that any interference with its results would violate Google’s own First Amendment right to freely express its opinions. (Here, the opinions would be what sites should be indexed and deemed relevant to a search query). I find that argument dubious, because I think Google is closer to a conduit than a content provider. I was reassured that the Googlers Rosen interviewed did not embrace the “nuclear option” of invoking their own putative First Amendment protection in order to dismiss the possibility of regulation of their power over the dissemination and salience of the expression of others.
Finally, I was happy to see Rosen and Tim Wu point out the following in the article:
Google is not just a neutral platform for sovereign users; it is also a company in the advertising and media business. In the future, Wu said, it might slant its search results to favor its own media applications or to bury its competitors. If Google allowed its search results to be biased for economic reasons, it would transform the way we think about Google as a neutral free-speech tool. The only editor is supposed to be a neutral algorithm. But that would make it all the more insidious if the search algorithm were to become biased.
Both Federal Search Commission and Internet Nondiscrimination Principles have described and addressed those potential problems in some detail. For the short course, check out Danny Weitzner on the proper institutional response to Google’s privacy problems. His proposals for “extreme fact-finding” scale well to the other issues the company’s power raises. Bottom line: someone in government has to have the right to determine “if the search algorithm [has become] biased.” Without that basic assurance, black box search engines now are about as big a menace as the black box economy was five years ago. We trust the math wizards at Google now as much as we used to admire the financial innovators at Bear Sterns and Goldman. Only time will tell if our faith in the mathematicians was misplaced yet again.