an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Some commentators have suggested that it would be impossible to make search engines as "fair" to the sites they index as cable and telephone companies should be to the customers whose traffic they carry. However, some basic principles of transparency should guide both fields. Raff articulates serious worries about Google's influence over spheres of internet activity adjacent to search:
With 71 percent of the United States search market (and 90 percent in Britain), Google’s dominance of both search and search advertising gives it overwhelming control. . . One way that Google exploits this control is by imposing covert “penalties” that can strike legitimate and useful Web sites, removing them entirely from its search results or placing them so far down the rankings that they will in all likelihood never be found. For three years, my company’s vertical search and price-comparison site, Foundem, was effectively “disappeared” from the Internet in this way.
Admittedly, Raff likely can't prove conclusively that Google's prioritization practices purposefully hurt any particular company, because they are so secretive. I would not be surprised if Google PR responded to this editorial by saying that entirely neutral, albeit private, ranking practices led to the obscurity of Foundem. (For an interesting discussion of that style of justification, see James Grimmelmann's discussion of Google's SearchKing litigation.) But that opacity is itself concerning.
Public interest groups have made some inroads in holding carriers accountable, but even they appear reluctant to take the next step to recognize the parallel power of a dominant search engine like Google. They will soon have no choice but to confront this dominance, given that the obstacles to holding Google accountable—trade secret protection for its ordering algorithms—will also interfere with network neutrality regulation. Like search engines, carriers face an information overload problem, as spam, viruses, and high-demand applications threaten to overwhelm their networks. They are likely to make key network management practices as confidential as search engine rankings, and trade secret protection has already been deployed in other technological settings to block critical review of questionable corporate behavior.
Dominant search engines and carriers are the critical infrastructure for contemporary culture and politics. As these dominant intermediaries have gained more information about their users, they have shrouded their own business practices in secrecy. Internet policy needs to address the resulting asymmetry of knowledge and power. I'm glad to see people like Raff bringing these concerns to a public forum. Consider, for instance, the problems he identifies here:
Another way that Google exploits its control is through preferential placement. With the introduction in 2007 of what it calls “universal search,” Google began promoting its own services at or near the top of its search results, bypassing the algorithms it uses to rank the services of others. Google now favors its own price-comparison results for product queries, its own map results for geographic queries, its own news results for topical queries, and its own YouTube results for video queries. . . . Without search neutrality rules to constrain Google’s competitive advantage, we may be heading toward a bleakly uniform world of Google Everything — Google Travel, Google Finance, Google Insurance, Google Real Estate, Google Telecoms and, of course, Google Books.
In my 2007 article Copyright in an Era of Information Overload, I presented Google as a company that could break the dominance of concentrated cultural industries, joining a chorus of cheerleaders for "disintermediation." However, as Google becomes more of an online conglomerate, it may create problems in new areas similar to the ones it once helped solve. Consider the complexities caused by Google‘s ownership of YouTube. Does the fact that a company does business with Google lead Google to make it more salient in search results than a company that (ceteris paribus) does not? How well are YouTube‘s rivals doing in searches on Google for videos?
Again, Google may have perfectly legitimate reasons for ranking YouTube items on top. (For example, if it faces more lawsuits like this, it may want to prioritize its subsidiary's results because it suspects that YouTube's "objectionable content police" are more active than upstarts' bowdlerizers.) But just as Google wants the carriers to be open about how they manage traffic, it should be transparent about exactly how its commercial relationships affect the ranking of its business partners and customers. Without such transparency, regulators will not be able to assess whether the company is engaged in stealth marketing, which can be a deceptive trade practice.
Some commentators may say that principles of search neutrality are impossible to specify. I agree with Greg Lastowka's concerns about Raff's own ideas about search neutrality. But if you want to see a more precise specification of what search neutrality might look like, just look at page 27 of my article comparing dominant search engines and carriers. Or the series of comparisons in the chart on this page. Or take a look at Dawn Nunziato's discussion of Google News in her book, Virtual Freedom. Siva Vaidhyanathan also has interesting insights. Thankfully, I'm no longer a voice crying in the wilderness on this issue. As Viva Moffat shows, there is a wide range of opinion on regulating search.