Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines
5/4/2008 5:24:10 PM Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines Frank Pasquale† I. INTRODUCTION Dominant search engines (“DSEs”)1 are becoming a hub of convergence culture.2 They provide an ever-expanding array of services.3 As they amass information about their users, calls for † Professor of Law, Seton Hall Law School; Associate Director of the Gibbons Insti- tute of Law, Science, and Technology, Seton Hall University. I wish to thank the Univer- sity of Chicago Legal Forum for asking me to present this article. Marina Lao, Ellen Goodman, James Grimmelmann, Danielle Citron, and Brett Frischmann offered very insightful comments. 1 We can provisionally define a dominant search engine (DSE) as one with over 30 percent market share. Google clearly satisfies this criterion in the U.S. and much of Eu- rope. See Steve Lohr, As its Stock Tops $600, Google Faces Growing Risks, NY Times C1 (Oct 13, 2007) (remarking that “[i]n September, Google’s share of Web searches in the United States was 67 percent, up from 54 percent a year earlier, reports Compete.com, a Web analytics firm. The Yahoo share was 19 percent, compared with 29 percent a year earlier. And Microsoft had 9 percent, up slightly from a year ago.”). But Google would not qualify as a DSE in South Korea, where Naver dominates. See, for example, Choe Sang- Hun, South Koreans Connect Through Search Engine, NY Times (July 5, 2007), available at <http://www.nytimes.com/2007/07/05/technology/05online.html?ref=technology> (last visited Mar 28, 2008) (noting that “[w]eb users in one of the world’s most-wired countries seldom “Google” anything.
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