SSRN-Federal Search Commission? Access, Fairness and Accountability in the Law of Search:
FRANK A. PASQUALE III Seton Hall University - School of Law OREN BRACHA University of Texas at Austin - School of Law July 23, 2007U of Texas Law, Public Law Research Paper No. 123
Seton Hall Public Law Research Paper No. 1002453
Abstract:
Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.
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Comments (2)
I sympathize with the sentiment, but I just couldn't find the paper's reasoning to be convincing. See my blog post about the paper:
Regulation Of Search Engines discussion - "Federal Search Commission?"
The authors state that this is a first amendment issue and further that this is an exception where we can limit speech. Well, maybe it's not really a first amendment issue. Are search engines speech or the press? Maybe the first amendment doesn't really apply to search engines at all. So the argument that this is an exception doesn't really matter.
When you dismiss the first amendment issues then what you are left with is "untoward behavior by the oligopolists". It's an open question whether this is truly an oligopoly situation. There are competitors and substitutions to Google, Yahoo and the like arising all the time. How about Wikipedia and Blogs and Creative Commons and Amazon and Digg It. Does anyone use Google or Yahoo to search for porn anymore? There are much better search engines for that. The so-called oligopolists the authors refer to have been around for less than a decade, they could be gone again in less.
The only untoward behavior I have seen is the tendency of the so-called oligopolists to use my personal information without my permission. This paper doesn't address that very well. The bias that everyone worries about is incidental to the market forces the search engines operate under. The bias is incidental, not malicious. There is a question as to whether fraud is being perpetrated or the consumer is being harmed but that is better left to the hapless FTC or to torts.