A Peace Treaty for the Google Wars?

As Google grows, so do fears about its possible overreach. A Wall Street Journal article quotes several companies worried that Google will use its dominance in search to invade their turf:

Google Inc. increasingly is promoting some of its own content over that of rival websites when users perform an online search, prompting competing sites to cry foul. The Internet giant is displaying links to its own services—such as local-business information or its Google Health service—above the links to other, non-Google content found by its search engine. . . .

TripAdvisor LLC Chief Executive Stephen Kaufer said the traffic his site gets from Google’s search engine dropped by more than 10%, on a seasonally adjusted basis, since mid-October—just before Google announced the latest change to the way its search engine shows information about local businesses. TripAdvisor.com, whose top source of traffic is Google, reviews hotels and other businesses frequented by travelers. . . .Google’s promotion of its own content over others’ has been one of many issues raised during the federal antitrust review of the company’s acquisition of ITA Software Inc., people involved in the discussions have said.

European antitrust authorities are also concerned. Jia Lynn Yang of the WaPo explains, “As the tech giant spreads its reach, it is making new enemies who fear that once Google steps onto their turf it will use its almighty search engine to quash them.” Anyone other than the top result may fear that Google has “hard coded bias” against them, in Ben Edelman’s memorable phrase.

This is a hard problem because a) Google’s ranking methods are secret, and b) Google’s results have been protected as speech by some courts. Therefore, even if a site wanted to sue Google on some kind of business tort theory, they might never get to discovery because the company could successfully characterize its rankings as a mere “opinion” of sites’ relevance.

But let’s just say that a disgruntled Google rival seeks not to change Google’s rankings, but to find out how they are generated. They are likely to run into the brick wall of trade secrecy—unless they can claim that the rankings violate some federal policy, like bans on stealth marketing. But even then, the challenger is going to run into real problems trying to understand exactly how Google ranks sites. What then?

I anticipated this problem four years ago, and I’ve been working on possible solutions since then. My latest installment is a piece calling for “qualified transparency” in powerful internet intermediaries, including Google. Somebody should be able to “look under the hood,” to assure sites like TripAdvisor or WebMd that they are not being unfairly trampled by Google Travel or Google Health.

Troubling questions about the power of search engines will persist, and erode the legitimacy of these institutions, as long as key operations of leading companies are shrouded in secrecy. Administrators must develop an institutional competence for continually monitoring rapidly-changing business practices. A trusted advisory council charged with assisting the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) could help spot troubling practices early, and assist courts and agencies in adjudicating controversies concerning intermediary practices. An Internet Intermediary Regulatory Council (IIRC) would follow up on complaints made by competitors, the public, or when it determines that a practice deserves investigation. If it failed to reconcile conflicting claims, it could refer complaints to the FTC (which has developed expertise in both privacy and advertising law). An IIRC would need not only lawyers, but also engineers and programmers who could fully understand the technology affecting data, ranking, and traffic management practices.

An IIRC would research and issue reports on suspect practices by Internet intermediaries, while respecting the intellectual property of the companies it investigated. An IIRC could generate official and even public understanding of intermediary practices, while keeping crucial proprietary information under the control of the companies it monitors. An IIRC could develop a detailed description of safeguards for trade secrets, which would prevent anyone outside its offices from accessing the information. Another option would be to allow IIRC agents to inspect such information without actually obtaining it. An IIRC could create “reading rooms” for use by its experts, just as some courts allow restrictive protective orders to govern discovery in disputes involving trade secrets. The experts would review the information in a group setting (possibly during a period of days) to determine whether a given intermediary had engaged in practices that could constitute a violation of privacy or consumer protection laws. Such review would not require any outside access to sensitive information.

A status quo of unmonitored intermediary operations is a veritable “ring of Gyges,” tempting them to push the envelope with ranking practices which cannot be scrutinized or challenged. Distortions of the public sphere are also likely. While a commercially-influenced “fast-tracking” or “up-ranking” of some content past others might raise suspicions among its direct (but dispersed) victims, the real issues it raises are far broader. If an online ecology of information that purports to be based on one mode of ordering is actually based on another, it sets an unfair playing field whose biases are largely undetectable by lay observers. Stealth marketing generates serious negative externalities that menace personal autonomy and cultural authenticity. Moreover, the degree of expertise necessary to recognize these externalities in the new online environment is likely to be possessed by only the most committed observers.

Without something like an IIRC to authoritatively investigate matters, reports like Edelman’s (or accusations like the ones in the WSJ and WaPo articles) will erode public confidence in the fairness and soundness of search engines. Until something like it is established, suspicions of problematic intermediary behavior will continue to fester. A neutral third party could help put everyone’s minds at ease, lest Google start to resemble the “secretive elite” of derivatives trading.

Image Credit: A Google result appearing on Benjamin Edelman’s page.

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