What Does Regulating Google Search Even Mean? We Asked 4 Lawyers

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“It’s almost unfathomable to figure out how to regulate search. We’re not prescriptive. We allow the marketplace to allow people to self-regulate and we police their self-regulation,” one veteran antitrust lawyer says.
President Donald Trump likes to trash his opponents on Twitter, speaking to tens of millions of followers in short bursts.
On Tuesday, he went after Google search results—for ”Trump news”—that showed mainstream news sites and their critical stories. He accused the company of “suppressing” conservative outlets.
Within hours, keeping Trump’s tirade alive a bit longer, Larry Kudlow, the White House chief economic adviser, told reporters that the administration is “taking a look” at whether Google search results should be regulated. Kudlow didn’t offer specifics, and one federal agency that might care—the Federal Trade Commission—declined to comment.
Google swiftly resisted Trump’s attack that the company is skewing its search results to promote mainstream news coverage—”fake news” in the president’s eyes—of the White House.
“When users type queries into the Google Search bar, our goal is to make sure they receive the most relevant answers in a matter of seconds,” Google said in a statement. “Search is not used to set a political agenda and we don’t bias our results toward any political ideology.”
Calls for greater regulation of tech companies—focusing chiefly on information security, consumer privacy and market power—have ramped up in recent years, especially amid the foreign interference of the 2016 presidential election. A Google exec and other tech leaders are expected to testify on election security next week in Washington.
Does Trump want the FTC to look anew at Google? Unclear. What about the Justice Department? Still unclear.
The FTC in 2013 did resolve a 19-month antitrust investigation targeting Google over alleged “search bias.” But that case focused on claims Google was unfairly promoting its own services above competitors. “Google is a ‘horizontal,’ or general purpose, search engine because it seeks to cover the Internet as completely as possible, delivering a comprehensive list of results to any query,” the FTC said in a statement at the time. Still, the agency said it would “remain vigilant and continue to monitor Google for conduct that may harm competition and consumers.”
Here’s a snapshot of what some leading experts are thinking right now about the claims of a “rigged” system and the prospect of a new regulatory focus on Google.
➤➤ David Balto, a former policy director of the FTC’s Bureau of Competition and former trial attorney in the Justice Department’s Antitrust Division: “I don’t see any need here, and I think the FTC investigation pretty much made that clear. But a big question is what in the world would you regulate and how would you regulate it? There are an unfathomable number of searches made every moment, and how would you regulate it without a regime that would remind you of ‘1984’? It would be an endeavor that would remind us of the TV show ‘Lost In Space.’ We wouldn’t really know where we were,” Balto said. He continued: “It’s almost unfathomable to figure out how to regulate search. We’re not prescriptive. We allow the marketplace to allow people to self-regulate and we police their self-regulation. Someone might envision the kind of regulation that George Orwell might implement, but that wouldn’t be the kind of regulation that would be very palatable to anyone.”
➤➤ Crowell & Moring partner Alexis Gilman, a former assistant director of the FTC’s Bureau of Competition: “It’s not clear what type of regulatory action is being contemplated here. If this truly means they’re considering regulation, that’s not something the antitrust agencies do. The antitrust agencies bring enforcement actions. They don’t regulate the way other agencies regulate. If this means or suggests the administration is considering using the antitrust laws to go after the way Google prioritizes news search results, I have a hard time seeing a viable antitrust claim. While the EU has challenged the way Google allegedly prioritizes shopping results, which Google disputes, of course, there’s no indication here that Google is prioritizing its own products or services over those of other companies or is otherwise excluding news competitors to Google. Instead, the claim here seems to be that news outlets that are more favorably inclined toward the administration don’t appear as high on search results as other, non-Google-owned news outlets. I don’t see how that’s an antitrust violation.”
➤➤ Gigi Sohn, a former counselor to former FCC Chairman Tom Wheeler and now fellow at Georgetown Law’s Institute for Technology Law and Policy: “Even if it were true, which I do not believe it is, the government shouldn’t be looking at the speech of these platforms. It is entirely appropriate, though, to look at whether they have too much market power, are violating the privacy of users, not keeping the data of users secure, giving users choice in whether to give them data. That’s wholly appropriate, whether they’re being transparent about what their algorithms do.”
➤➤ Eric Fastiff, chair of the antitrust and commercial Litigation practice team at Lieff Cabraser Heimann & Bernstein: “I’d say the president bashing any media outlet is completely improper, and to the extent that anyone from the Department of Justice or the Federal Trade Commission looks into this, I have complete faith in the political appointees and the permanent staff that they will not allow politics and an attack on the First Amendment to influence their analysis.”
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