Cornell Law School

From the SelectedWorks of James Grimmelmann

September, 2013

What to Do About Google? James Grimmelmann, University of Maryland

Available at: https://works.bepress.com/james_grimmelmann/45/ viewpoints

DOI:10.1145/2500129 James Grimmelmann VLaw and Technology What to Do About Google? Whether it is acting as a conduit, an editor, or an advisor, the search engine should put user interests first.

OOGLE IS A NOUN, a verb, and The oldest and most persistent Local (to find nearby businesses and a controversy. It receives critique of Google’s power, known as restaurants) and Google Flights (to find two-thirds of all searches in “search bias,” is the fear that search and book airline tickets). Google gives the U.S., and more than 90% rankings create reality rather than re- these specialized search results promi- in many European coun- flecting it. If Google demotes the res- nent placement at the top of its re- Gtries. It has dipped its toes—or perhaps taurant Le Snoot from being the first sults pages. Competitors like Yelp and its tentacles—into local listings, news, result for “restaurant near 54321” to Expedia have charged that this gives books, videos, flights, patents, and the hundreth, many gourmets will Google’s vertical offerings an unfair prices, to name just a few. If it exists, make their reservations elsewhere. If advantage over their competing verti- Google wants to index it. Dave’s Diner takes its place as the num- cal search engines. For years, they and Unsurprisingly, this modern octo- ber-one result, diners will go there in- other Google critics have been pressing pus has its critics. There are, among stead. Google can literally pick winners regulators in the U.S. and the European others, newspapers upset about hav- and losers in the game of the Internet. Union to curb Google’s allegedly abu- ing their headlines scraped and aggre- The most explosive search bias al- sive practices. gated, trademark owners upset about legations against Google involve its But they have been sorely disap- keyword ads for their competitors, in- vertical search engines, like Google+ pointed, on both sides of the Atlantic. troverts upset that searches on their In January, the Federal Trade Com- names resurrect painful and humiliat- mission dropped its search bias in- ing memories, governments upset at Google can literally vestigation, concluding the changes the subversive and scandalous things competitors complained about “could citizens can find with a quick search, pick winners plausibly be viewed as an improve- and privacy advocates upset at Google’s and losers in the ment in the overall quality of Google’s immense stockpiles of personal data. search results.”5 In April, the European And that is just the search engine; if game of the Internet. Commission went a bit further, but one were to add in the concerns about not much. In a proposed settlement, Android rootkits, Google Glass creep Google agreed to label its own vertical shots, driverless car crashes and the search results more prominently, and rest, this column would not be long to add a few, not particularly conspicu- enough to list them all.) ous, links to rival vertical search en-

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gines.6 Both regulators left untouched Internet. If Le Snoot’s ISP decides to The conduit theory’s natural en- the core practice responsible for so unplug its connection, no one will be emy is the editor theory, which says much criticism: top-ranked placement able to reach lesnoot.com. The same that making distinctions among web- for Google’s own news, flight informa- will be true if the DNS records for le- pages is an act of judicious discretion tion, and local results. snoot.com are deleted, or if search rather than dangerous discrimination. Did the authorities shirk their re- engines drop lesnoot.com from their The editors of Communications make sponsibilities to rein in an unruly indexes. And so, if the parallel holds, countless decisions about which de- titan? Or did they show admirable just as the Bell telephone network was velopments in computing are worth restraint in refusing the gum up the regulated to ensure nondiscriminato- covering, which articles are most in- gears of an innovative technology? It is ry access for everyone, search engines formative, and where to put them in impossible to answer these and other should be too. the magazine. These decisions are not policy questions about Google without When people talk about “search “right” or “wrong”; they simply reflect some theory of what search engines are neutrality”—by analogy to “network the judgment of its editorial board good for and what society ought to ex- neutrality”—they are making an argu- and staff. Google sees itself the same pect of them. ment for treating Google as a conduit. way. True, Google’s editorial cycle is Fortunately, we have such a theory— Of course, Google could not simply measured in milliseconds rather than or rather, we have three such theories. rank all websites identically, because in months. But when its search qual- Some observers have compared Google only one result can be first, but it ity team meets to discuss algorithmic to a traditional telecommunications ought to treat them all fairly. The op- tweaks, it resembles a newspaper staff conduit like a radio station.2 Some have posite of a “neutral” search engine is debating which stories to put on the compared it to an editor deciding what a “biased” search engine; rather than front page of the metro section. And, stories to put in a magazine.8 And some listing websites in the order they de- continues the argument, just like the A D have compared it to an advisor, like the serve to be ranked, it injects its own government cannot tell the New York RE F concierge in a hotel who answers ques- discriminatory distortions. The claim Times to spike an unflattering story 7

NTHONY tions about local attractions. Each that Google is doing something wrong about Guantanamo Bay, it cannot tell A theory offers its own insights. when it puts its own flight search re- Google which search results to show. ON BY ON BY I Calling search engines conduits sults higher on the page than Expe- Finally, one could view Google as an TRAT

S emphasizes that they have become dia’s is a claim that Google should be advisor, helping users find what they

ILLU one of the new bottlenecks on the acting as a neutral conduit but is not. are looking for. If so, the best search en-

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gine is one that is most useful to users, the conversation. We depend on advi- rather than the one that is least biased, sors to keep confidential what we tell or most reflects its programmer’s point When it comes to them: doctors and investment advis- of view. Le Snoot may be the “best” res- crafting sensible law ers are legally obligated to secure their taurant in town, as judged by profes- records; so too for search engines. Our sional food critics. But some people do for search engines, query histories are some of the most not like heavy French cuisine, others our sympathies personal and potentially embarrass- are vegans, and even cassoulet lovers ing data trails we leave behind us. They would rather just have a slice of pizza should lie with users. have even been used as evidence in now and then. Whether Le Snoot or murder trials. Strong privacy protec- Dave’s Diner is more relevant to a user tions for user search data are essential. depends on what she intends as she Some of these points apply beyond types her query. search engines; some do not. The anti- Calling Google an advisor cuts payola principle is a general one; the both ways: it gives Google both rights problem; Google is setting up orange FTC has warned advertisers that they and duties. It gives a powerful argu- cones to block the highway and divert must disclose sponsored blog posts, ment against search neutrality: a law Internet users to the Google exit. If and even sponsored tweets.3 So is the that puts Le Snoot back on top makes Google is an editor, bias is just as much idea that the government should not it more difficult for the user who a non-issue as when the front page of make users’ choices for them; Tulsa wants a grilled cheese sandwich to the Daily News promotes its own sports cannot tell Yelp that the Holiday Inn get a decent meal. But just as readers coverage rather than the Post’s. deserves an extra star and the Rama- would rightly be furious to discover If Google is an advisor, though, the da does not. But the duty of loyalty is the hotel concierge only recommend- answer lies somewhere between “al- weaker where advice is not personal- ed Le Snoot because the head chef ways wrong” and “always fine.” The ized; consumers can continue to leave slipped him an envelope stuffed with key question is not whether Google is humorous reviews of the Three Wolf cash, search users would also have helping itself or whether it is hurting Moon T-shirt at Amazon, even though cause to complain if payola deter- websites, but whether it is helping us- the reviews may not be especially help- mined search rankings. More than a ers find what they want. Sometimes, ful for shoppers.1 decade ago, the FTC strongly warned for some queries, Google can quite rea- Google is not the Eye of Sauron, search engines against displaying un- sonably think that users will be grate- finding all that is good on the Inter- disclosed paid listings.4 ful if it lists its own services first. Flight net and corrupting it. Nor, despite All three theories capture something search is a good example: Google’s in- its mission “to organize the world’s important about how search engines teractive OneBox helps users dive right information and make it universally work. Each of them celebrates the con- into the flight-picking process. accessible and useful,” is it human- tributions of one of the essential par- At other times, for other queries, ity’s informational savior. Google is a ties to a search. The conduit theory is Google may have strong evidence that company that provides an enormously all about websites with something to users prefer particular sites. If Google significant online service. When that say, the advisor theory is all about the demotes them to insert its own pages service raises serious legal questions, users who are interested in listening, that it knows users would rather not we should ask whether it is good for and the editor theory is all about the see, that could be problematic. It is a the users or bad for the users. search engine that connects them. form of deception: Google is telling But when it comes to crafting sensi- the user, “This is the best I can do for References 1. Amazon.com. The mountain three wolf moon short ble law for search engines, our sympa- you” when it knows full well it could sleeve tee; http://www.amazon.com/The-Mountain- thies should lie with users. The Internet Three-Short-Sleeve/dp/B002HJ377A do better. 2. Chandler, J.A. A right to reach an audience. Hofstra has made it easier to speak to world- The FTC properly recognized that Law Review 35, 3 (2007), 1095–1137. 3. Federal Trade Commission. .Com Disclosures, 2013; wide audiences than ever before, but deception was the real issue in the http://www.ftc.gov/os/2013/03/130312dotcomdisclos at the cost of massively increasing the Google case. The FTC’s decision to ures.pdf. 4. Federal Trade Commission. Letter to Gary Ruskin. cacophony confronting those audienc- drop its search bias investigation Re: Complaint Requesting Investigation of Various es. Since users’ interests are as diverse hinged on a conclusion that Google Internet Search Engine Companies for Paid Placement and Paid Inclusion Programs, (June 27, 2002). as human thought, they need highly had not underplayed its hand. Some, 5. Federal Trade Commission. Statement Regarding personalized help in picking through like Expedia and Yelp, criticized the Google’s Search Practices. In the Matter of Google Inc., FTC File No. 111-0163 (Jan. 3, 2013). the treasures in the Internet’s vast but outcome. But there is a difference be- 6. Google Inc. Commitments. Foundem and Others, utterly disorganized storehouse. The tween disagreeing with Google’s rank- Case COMP/C-3/39.740 (Apr. 3, 2013). 7. Grimmelmann, J. Speech engines. Minnesota Law search engine is the only technology ing decisions—everyone wants to be Review (2014), in press. known to humanity capable of solving king of the results page—and show- 8. Volokh, E. and Falk. D.M. Google first amendment protection for search engine search results. Journal of this problem at Internet scale. ing that those decisions were made in Law, Economics, and Policy 8, 4 (2012), 883–899. Some familiar controversies about bad faith. Google look rather different from Another advantage of treating James Grimmelmann ([email protected]) is this point of view. Take search bias. If search engines as advisors is that it Professor of Law at the University of Maryland. Google is a conduit, bias is a serious helps put user privacy at the center of Copyright held by Owner/Author(s).

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