Is Google search an intermediary like the phone company—simply connecting people with the information they seek? Or is Google search a publisher, like a newspaper, which provides only the information that it sees fit and is protected by the First Amendment?
There are good reasons for Google to want to be considered a mere connector; like other Internet companies, it can beg off responsibility for what is transmitted by its users. That is the useful stance when it comes to rebutting claims of copyright infringement or libel.
But when the issue is anti-competitive behaviour—a charge made by rivals and some businesses—Google has lately been emphasizing that it sees itself as a publisher, and it is appealing for different kinds of protections, in the realm of free speech.
How Google has decided to say this is almost as interesting as what is being said. The company hired Eugene Volokh, an influential conservative blogger and a professor at the University of California, Los Angeles, to write a paper last month. In it, he argues that Google search results are protected speech.
Volokh freely acknowledges that the paper, posted on his blog and shared widely on the Internet, is not academic scholarship but a piece of advocacy, written in his capacity as an academic affiliate at a Los Angeles law firm, Mayer Brown. It is something that would typically be prepared if Google were facing a trial on these issues.
There is no such court case at the moment that Volokh is pointing towards with his paper, but Google has become a target over how it runs its search engine. Competitors and some companies say Google’s search algorithms favour services owned by Google, a charge Google denies, but one that has drawn the attention of regulators in Europe and the US.
In September, Google’s chairman, Eric E. Schmidt, was called before a Senate antitrust panel to defend his company’s practices. The chairman of the subcommittee, Herb Kohl, put the question bluntly: “Is it possible for Google to be both an unbiased search engine and at the same time own a vast portfolio of Web-based products and services?”
Schmidt’s response was measured. He noted that if Google stopped providing helpful search results people would start using other search engines. He also said that profit motives would not distort Google’s search results. “I’m not sure Google is a rational business trying to maximize its own profits,” he said.
If Schmidt was the good cop, telling the Congress, in effect, “we get it”, when it comes to monopolistic behaviour, Volokh is the bad cop: The message of his paper is that Google is a publisher and can favour its own material or even block another’s. If you don’t like it, tough luck. Try telling a newspaper what it should be printing. In one chapter, Volokh argues that some people “have allegedly come to expect that Google will choose search results based solely on supposedly ‘neutral’ computer algorithms, with no preference for Google’s thematic search results”.
“But the critics cannot point to any such guarantees to customers”, he continued, “because Google makes no guarantees”.
Asked for comment, Google wrote in an email that it had commissioned the paper as a way to lend support to two lower court rulings, from 2003 and 2007, that gave Google’s search results First Amendment protections. “Given that federal courts rejected on First Amendment grounds several lawsuits by websites over search rankings, we thought these issues were worth exploring by a noted First Amendment scholar,” said Adam Kovacevich, a spokesman on policy issues for Google in Washington.
The paper has managed to get a lot of attention, in part because Volokh was able to promote it on the Volokh Conspiracy, his popular group blog on legal issues. But the paper also makes great fodder for online discussions because of Volokh’s style of staking out his position in direct language (with barely any footnotes).
Volokh’s argument, fundamentally, is that when Google assembles search results, it is communicating with its readers, and making selections about what to communicate. In that way, it is the same as a print newspaper that prioritizes news on its front page; a guidebook that selects local attractions to highlight; or an online news aggregator like the Drudge Report.
Yes, the decisions by those kinds of organizations are made by people, while Google’s search results are made by computers that apply a supersecret algorithm, but who created that algorithm? Volokh asks.
“All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included?” Volokh writes. He adds that “all these exercises of editorial judgement are fully protected by the First Amendment”.
Interestingly, these First Amendment protections as a speaker are unrelated to the safe harbour protections that shield websites like Google from responsibility for content that is created by others.
In that sense, Volokh said, “Google was getting the best of both worlds,” meaning the company could argue one position—it is a connector— when it comes to safe harbour, but another position—it is a publisher—when it comes to anticompetitive issues. To Volokh they are not mutually exclusive. But there is a bit of a rub for Google, some scholars say. The kind of reasoning Volokh uses in his paper could come into conflict with one of Google’s policy priorities—the Net neutrality rules that call for everyone to get equal treatment on the Internet. Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favourites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “Net neutrality”.
Volokh never mentions Net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.
Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web”, which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech”.
But he also suggested there was a potential for Volokh’s reasoning to extend First Amendment protections to transmitters that do even less—for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behaviour Net neutrality rules are meant to prevent.
The more the First Amendment is applied to how information is transmitted via the Internet, Benjamin said, the harder it is to regulate. “Whether that is a good or bad thing depends on your political perspective,” he said.
©2012/The New York Times