I’ve posted a draft of my latest article, Speech Engines, forthcoming in the Minnesota Law Review. I started thinking hard about search engines a decade ago, when I blogged about the Search King lawsuit instead of studying for my first semester law-school exams. It was apparent to me then that Google’s power to promote and demote sites in its search results was both immensely valuable and immensely dangerous, but I wasn’t sure how the legal system should respond. Since then, I’ve written six papers on search engines. The first five were either failed attempts at a general theory, or, if you want to be more charitable, preliminary assays to think through the issues.
But now I think I’ve got it: a theory of how we should think about search engines, and how the legal system should treat them. The goal of search engines, and the goal of search engine law, are to help users find what they’re looking for. Search engines are advisors; law should ensure that users have access to search engines and that those search engines are loyal to users. Search results are opinions about what users will find relevant. Those search results can be actionable when they are given in bad faith, that is, when they don’t reflect the search engine’s actual opinions about relevance. The Federal Trade Commission was probably right to drop its search-bias charges against Google, but should have insisted on greater transparency going forward.
This is, I daresay, a radically moderate take on Google. I reject Google’s story of search, on which search results are purely subjective and not susceptible to legal oversight, and the possibility of competition from other search engines suffices to keep it in check. But I also reject the story told by Google’s numerous enemies, on which the government can and should bring search results with an objective standard of fairness and neutrality. There is a middle ground between the two; indeed, it follows naturally from putting search users at the center of the story.
Here’s the abstract:
Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.
A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized information goals by sorting through the unimaginable scale and chaos of the Internet. Search users are active listeners, afirmatively seeking out the speech they wish to receive. Search engine law can help them by ensuring two things: access to high-quality search engines, and loyalty from those search engines.
The advisor theory yields fresh insights into long-running disputes about Google. It suggests, for example, a new approach to deciding when Google should be liable for giving a website the “wrong” ranking. Users’ goals are too subjective for there to be an absolute standard of correct and incorrect rankings; different search engines necessarily assess relevance differently. But users are also entitled to complain when a search engine deliberately misleads them about its own relevance assessments. The result is a sensible, workable compromise between the conduit and editor theories.
This is a draft. The article itself won’t be published until next year, which means I have plenty of time to revise and refine the arguments. I would greatly appreciate any comments or suggestions you might have.