Category: Google & Search Engines

Europe Steps Up to the Challenge of Digital Competition Law

Two years ago U.S. authorities abandoned a critical case in digital antitrust. The EC now appears ready to fill the void:

The European Commission is said to be planning to charge Google with using its dominant position in online search to favor the company’s own services over others, in what would be one of the biggest antitrust cases here since regulators went after Microsoft. . . . If Europe is successful in making its case, the American tech giant could face a huge fine and be forced to alter its business practices to give smaller competitors like Yelp greater prominence in its search queries.

I applaud this move. As I’ve argued in The Black Box Society, antitrust law flirts with irrelevance if it fails to grapple with the dominance of massive digital firms. Europe has no legal or moral obligation to allow global multinationals to control critical information sources. Someone needs to be able to “look under the hood” and understand what is going on when competitors of Google’s many acquired firms plunge in general Google search results.

Google argues that its vast database of information and queries reveals user intentions and thus makes its search services demonstrably better than those of its rivals. But in doing so, it neutralizes the magic charm it has used for years to fend off regulators. “Competition is one click away,” chant the Silicon Valley antitrust lawyers when someone calls out a behemoth firm for unfair or misleading business practices. It’s not so. Alternatives are demonstrably worse, and likely to remain so as long as the dominant firms’ self-reinforcing data advantage grows. If EU authorities address that dynamic, they’ll be doing the entire world a service.

PS: For those interested in further reading about competition online:
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Meet the New Boss…

One of the most persistent self-images of Silicon Valley internet giants is a role as liberators, emancipators, “disintermediators” who’d finally free the creative class from the grips of oligopolistic music labels or duopolistic cable moguls. I chart the rise and fall of the plausibility of that narrative in Chapter 3 of my book. Cory Doctorow strikes another blow at it today:

[T]he competition for Youtube has all but vanished, meaning that they are now essential to any indie artist’s promotion strategy. And now that Youtube doesn’t have to compete with other services for access to artists’ materials, they have stopped offering attractive terms to indies — instead, they’ve become an arm of the big labels, who get to dictate the terms on which their indie competitors will have to do business.

Ah, but don’t worry–antitrust experts assure us that competition is just around the corner, any day now. Some nimble entrepreneur in a garage has the 1 to 3 million servers now deployed by Google, can miraculously access past data on organizing videos, and is just about to get all the current uploaders and viewers to switch to it. The folklore of digital capitalism is a dreamy affair.

The Black Box Society: Interviews

My book, The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted in the fall, I’ve been fortunate to complete some radio and magazine interviews on the book. They include:

New Books in Law

Stanford Center for Internet & Society: Hearsay Culture

Canadian Broadcasting Corporation: The Spark

Texas Public Radio: The Source

WNYC: Brian Lehrer Show.

Fleishman-Hillard’s True.

I hope to be back to posting soon, on some of the constitutional and politico-economic themes in the book.


Yahoo! and YouTube

Mozilla switched to using Yahoo! for its search engine, and so I noticed something about how it shows YouTube results; something that may upset YouTube aka Google. When I was writing about lightsabers and 3D printing, I wanted to embed a clip from Return of the Jedi. The search on Yahoo! showed me a potential clip. I hit play to confirm that. It was good for my needs. I looked for the embed code, and it wasn’t there. There was a share button up top, but for the full page and codes, I had to go to the YouTube page. Now that is what happens when one embeds a YouTube video. But I wonder whether YouTube posters will be upset (or maybe even YouTube/Google) to find that a rival search engine maybe undercutting them. For example, it seems, I stress seems as I ran only one test, that a YouTube video that has an ad before a video lacks that ad when on Yahoo! Banner ads seem to be present on both, but they differ. I am guessing Google gets to serve those and maybe they vary depending on where the video is served. That would make sense given the targeting should vary depending on where the video is shown. Still if Yahoo! is taking content and showing it on its site, perhaps making money that way too (or at least keeping it from the Goog), will we see a replay of the early Internet cases on framing, diversion, etc., but with Google as the plaintiff? If so, is that an ironic moment where some folks will be saying Google just got Googled (i.e., I am thinking certain industries see being “Googled” as something other than being searched for; hey that may show that the whole genericisim question is less of an issue.).


Hello Stigler: Google Trusted Stores, Amazon, and Price Discrimination

Hello, Stigler. Matchmaking and advertising are Google’s forte. It has upped its game. Never to leave things as they are, Google has been rolling out a trusted vendor system. I noticed the service for a company that I cannot recall. Not a good sign for the company, but then again I don’t notice Amazon third parties either. If Google can use algorithms and other options such as requiring applications by vendors to be part of a trusted network of retailers, that change could be huge. There are, however, some issues.

First, Amazon should keep an eye on this program as it might be the first one to challenge Amazon’s excellent third party system. For that to be a true threat, Google will have to find a way to protect customers. Amazon has been great, in my experience, when it comes to protecting me while I deal with sellers far away and sometimes dubious. It does not give away my credit card etc. So if a lemon is in play, Amazon covers me. I assume it takes a fee for being the broker. Google customer service may have to evolve, if it is to match Amazon. A series of online, automated loops that end up hitting walls will make me stay with Amazon. But as Google gets better at identifying good sellers and protecting consumers, the service may work well. In addition, the play should feed into Google’s foray into ecommerce. Again if it can aid in delivery and resolve poor third party service, Google could do quite well in this space.

Second, will search results be influenced by participation in the program? On the one hand, I’d love results that lead to better sellers. Heck if Amazon or eBay ratings figured into Google results and improved knowing whether an ad or listed result was trust-worthy, that’d be great. Then again, right or wrong, I expect Google watchers/haters/worriers will argue that Google has promoted results unfairly. As long as a company can go through certification, it seems that argument should fail. I imagine Amazon, eBay, and others require some level of clearance to be in their system. Regardless of purveyor, it seems systems that are relatively low-cost (or maybe free except for time to fill out forms) to join and then are monitored should be embraced. In other words, Yelp etc. are near useless to me. Crowds are not as smart as folks think. As the great agent Kay in Men in Black said, “A person is smart. People are dumb, panicky dangerous animals and you know it.” More ways to improve how each of us, separately, evaluates options would be welcome, and plays to the way we each are capable of being smart. Options that limit us and feed echoes of dubious sources, behaviors, and beliefs, I’d like to avoid.

So we’ll see whether Google can one-up Amazon in connecting buyers and sellers. If so, I may buy more LPs and who knows what from folks I will never meet. And prices should be more competitive. Of course, that will be so until Christmas hits. Then as happened this year, prices may go up. But hey, Amazon listed the MSRP and connected me to a retailer whose markup combined with Amazon shipping worked for a gift to my niece. That was great. Wait, did I just agree with perfect price discrimination?!!? Damn, you Goog! and Amazon! Or is that Happy Holidays! I got what I wanted without fighting through stores.


Goliath aka Google aka No Surprises in Hollywood versus Silicon Valley

This just in: Hollywood hates/fears/plots against Google! The Sony security breach and following leaks have yielded many insights, sort of. If anyone thought Hollywood executives were discrete, that was naive and now debunked. If anyone thought most people knew not to use work email for personal business, that too is shown false. (I am continually amazed at how many law professors have thought it “odd” or “paranoid” that I use different emails for work and non-work communication). And yes, Hollywood aka the copyright industry is quite savvy and plots ways to go after its competitors and/or threats. The revealed emails do show the details of the plans and that there was a code word, Goliath, for Google (which I take as a place holder for Silicon Valley). All of which seems very Dr. Evil. But let’s be clear. Strategies to go after state attorneys general or legislators and to push negative news stories are endemic. They are endemic to Hollywood, telecoms, Silicon Valley, Wall Street, pharmaceuticals, and really any major industry. I am not saying that these practices are great or that policy is well-made from them. But they are real and should be understood. And, for those interested in the open Internet debates there are some other lessons. If you thought SOPA was the end, think again.

Vigilance and support for many companies and groups that support your issue (regardless of what it is) matters. The game is afoot. It will not end. Disclosure moment: Yes, I worked at Google in the policy group, and I have also worked on a political campaign. And one thing that I know from my experience and research (check Jessica Litman’s work on the copyright industry for a great lesson in this industry’s ability to play the game) is that if ideas come from only one entity, they seem weak. For better or worse, trade groups, NGOs, etc. matter. I prefer those that are independent and offer some nuances, but overall the concerted voices of many can be powerful. No matter what issue you wish to see succeed, backing only one entity dilutes the power of the idea or makes it seem like one company or group is crying over its lot in life. Some other post may get into the public choice issues here. But for now, the Sony leaks show that nothing much has changed. “The sun also ariseth, and the sun goeth down, and hasteth to his place where he arose. The wind goeth toward the south, and turneth about unto the north; it whirleth about continually, and the wind returneth again according to his circuits.” Ecclesiastes, 1:5-6.

Hollywood will always lobby for its interests and so will everyone else. “So it goes.”

European Parliament Resolution on Google

The European Parliament voted 384 – 174 today in favor of a “resolution on Supporting Consumer Rights in the Digital Single Market.” The text of the resolution:

Stresses that all internet traffic should be treated equally, without discrimination, restriction or interference, independently of its sender, receiver, type, content, device, service or application;

Notes that the online search market is of particular importance in ensuring competitive conditions within the Digital Single Market, given the potential development of search engines into gatekeepers and their possibility of commercialising secondary exploitation of obtained information; therefore calls on the Commission to enforce EU competition rules decisively, based on input from all relevant stakeholders and taking into account the entire structure of the Digital Single Market in order to ensure remedies that truly benefit consumers, internet users and online businesses; furthermore calls on the Commission to consider proposals with the aim of unbundling search engines from other commercial services as one potential long-term solution to achieve the previously mentioned aims;

Stresses that when using search engines, the search process and results should be unbiased in order to keep internet search non-discriminatory, to ensure more competition and choice for users and consumers and to maintain the diversity of sources of information; therefore notes that indexation, evaluation, presentation and ranking by search engines must be unbiased and transparent, while for interlinked services, search engines must guarantee full transparency when showing search results; calls on Commission to prevent any abuse in the marketing of interlinked services by operators of search engines;

Some in the US tech press has played this up as an incipient effort to “break up” Google, with predictable derision at “technopanic.” (Few tend to reflect on whether the 173 former firms listed here really need to be part of one big company.) But the resolution’s linking of net and search neutrality suggests other regulatory approaches (prefigured in my 2008 paper Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines). I’ve developed these ideas over the years, and I hope my recently released book‘s chapters on search and digital regulation will be of some use to policymakers. Without some regulatory oversight and supervision, our black box society will only get more opaque.

The Right to be Forgotten: Not an Easy Question

I’ve previously written on regulation of European data processing here. I’ll be presenting on the “right to be forgotten” (RtbF) in Chicago this Spring. I’ll be writing a series of posts here to prepare for that lecture.

Julia Powles offers an excellent summary of the right in question. As she explains, the European Court of Justice (ECJ) has ruled that, “in some circumstances—notably, where personal information online is inaccurate, inadequate, irrelevant, or excessive in relation to data-processing purposes—links should be removed from Google’s search index.” The Costeja case which led to this ruling involved Google’s prominent display of results relating to the plaintiff’s financial history.

Unfortunately, some US commentators’ views are rapidly congealing toward a reflexively rejectionist position when it comes to such regulation of search engine results–despite the Fair Credit Reporting Act’s extensive regulation of consumer reporting agencies in very similar situations. Jeffrey Toobin’s recent article mentions some of these positions. For example, Jules Polonetsky says, “The decision will go down in history as one of the most significant mistakes that Court has ever made.” I disagree, and I think the opposite result would itself have been far more troubling.

Internet regulation must recognize the power of certain dominant firms to shape impressions of individuals. Their reputational impact can be extraordinarily misleading and malicious, and the potential for harm is only growing as hacking becomes more widespread. Consider the following possibility: What if a massive theft of medical records occurs, the records are made public, and then shared virally among different websites? Are the critics of the RtbF really willing to just shrug and say, “Well, they’re true facts and the later-publishing websites weren’t in on the hack, so leave them up”? And in the case of future intimate photo hacks, do we simply let firms keep the photos available in perpetuity?
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Interview on The Black Box Society

BBSBalkinization just published an interview on my forthcoming book, The Black Box Society. Law profs may be interested in our dialogue on methodology—particularly, what the unique role of the legal scholar is in the midst of increasing academic specialization. I’ve tried to surface several strands of inspiration for the book.

How We’ll Know the Wikimedia Foundation is Serious About a Right to Remember

The “right to be forgotten” ruling in Europe has provoked a firestorm of protest from internet behemoths and some civil libertarians.* Few seem very familiar with classic privacy laws that govern automated data systems. Characteristic rhetoric comes from the Wikimedia Foundation:

The foundation which operates Wikipedia has issued new criticism of the “right to be forgotten” ruling, calling it “unforgivable censorship.” Speaking at the announcement of the Wikimedia Foundation’s first-ever transparency report in London, Wikipedia founder Jimmy Wales said the public had the “right to remember”.

I’m skeptical of this line of reasoning. But let’s take it at face value for now. How far should the right to remember extend? Consider the importance of automated ranking and rating systems in daily life: in contexts ranging from credit scores to terrorism risk assessments to Google search rankings. Do we have a “right to remember” all of these-—to, say, fully review the record of automated processing years (or even decades) after it happens?

If the Wikimedia Foundation is serious about advocating a right to remember, it will apply the right to the key internet companies organizing online life for us. I’m not saying “open up all the algorithms now”—-I respect the commercial rationale for trade secrecy. But years or decades after the key decisions are made, the value of the algorithms fades. Data involved could be anonymized. And just as Asssange’s and Snowden’s revelations have been filtered through trusted intermediaries to protect vital interests, so too could an archive of Google or Facebook or Amazon ranking and rating decisions be limited to qualified researchers or journalists. Surely public knowledge about how exactly Google ranked and annotated Holocaust denial sites is at least as important as the right of a search engine to, say, distribute hacked medical records or credit card numbers.

So here’s my invitation to Lila Tretikov, Jimmy Wales, and Geoff Brigham: join me in calling for Google to commit to releasing a record of its decisions and data processing to an archive run by a third party, so future historians can understand how one of the most important companies in the world made decisions about how it ordered information. This is simply a bid to assure the preservation of (and access to) critical parts of our cultural, political, and economic history. Indeed, one of the first items I’d like to explore is exactly how Wikipedia itself was ranked so highly by Google at critical points in its history. Historians of Wikipedia deserve to know details about that part of its story. Don’t they have a right to remember?

*For more background, please note: we’ve recently hosted several excellent posts on the European Court of Justice’s interpretation of relevant directives. Though often called a “right to be forgotten,” the ruling in the Google Spain case might better be characterized as the application of due process, privacy, and anti-discrimination norms to automated data processing.