Sources of Google’s Success

What’s the source of today’s cornucopia of exciting technology? One storyline is that brave entrepreneurs are doing battle with torpid government bureaucrats. When we think about a company like a Google, that turns out to be a naive point of view.

New Yorker media reporter Ken Auletta notes that Google’s lobbying operation in DC has grown from 1 person in 2006 to about 30 today, with many DC heavyweights in tow. They include

Robert Boorstin, a former speechwriter for President Clinton; Johanna Shelton, a former senior counsel to Representative John Dingell, chairman of the House Energy and Commerce Committee; and Pablo Chavez, a former chief counsel to John McCain. In October, 2006, the company established its own PAC, called NETPAC, and since then it has hired three outside firms to lobby on its behalf: the mostly Democratic Podesta Group; King & Spalding, where Google works with former Senators Connie Mack and Dan Coats, both Republicans; and Brownstein Hyatt Farber Schreck, which hired Makan Delrahim, the former Deputy Assistant Attorney General in the Bush Justice Department’s Antitrust Division.

Auletta sees this as a major break from the company’s past, implying that Google became dominant largely because it “scanned and indexed the internet” better than its competitors. However, the more I study the search market, the more I see fortuitous legal and regulatory decisions paving the way to Google’s success. Perhaps its technology in search was and is better than any search engine competitor. But its uniquely dominant place in the internet ecology could have been snuffed out at many points over the past 10 years.

As Auletta’s article notes, various entities are trying to bring Google to heel–including telcos, cable companies, content providers, search engine optimizers, trademark owners, and consumer advocates. In traditional information law, claims under trademark, defamation, and copyright law might pose serious worries for the company. However, communications and intellectual property law provide safe harbors that can trump legal claims sounding in each of these other areas. Immunities from tort liability provided under the Communications Decency Act (“CDA”) were originally intended for carriers regulated by the Federal Communications Commission, but have been extended by courts to cover search engines

The FCC, while often captured, can at least balance out the largesse ladled out to carriers like telcos and cable companies with rules that require, say, universal service, neutral treatment of clients, and transparency about corporate practices. But where is the Federal Search Commission? Google has advocated for “net neutrality” for carriers, but what of its own obligations as a dominant player?

In an upcoming article, I argue that the safe harbors that shield dominant search engines from liability also suggest some basic forms of responsibility for the results they present. Just as Google fears an unfairly tiered online world (where Verizon can partner with Yahoo to provide Yahoo searches ten times faster than Google ones), they should be required to provide access to their archives and indices in a nondiscriminatory manner. If Google wants carriers to disclose their traffic management tactics, they should submit to regulation that bans stealth marketing and reliably verifies the absence of the practice. Finally, search engines’ concern about the applications and content disadvantaged by carrier fast-tracking should lead them to provide annotation remedies to indexed sites whose trademarks have been unfairly occluded by the search process. Fair competition online demands common commercial ethics for both dominant search engines and dominant carriers.

Can this be a realistic policy agenda in a Washington smitten with Silicon Valley entrepreneurs? I’ll be closely watching the work of Siva Vaidhyanathan (on the academic side) and Jeff Chester (on the advocacy side). As Auletta reports,

Jeff Chester, the executive director of the nonprofit Center for Digital Democracy . . . runs a two-person organization that has an annual budget of two hundred thousand dollars, but his influence is surprisingly broad. . . .Chester urged Senator Kohl to hold a one-day hearing on the issue, and pushed for the F.T.C. to broaden its examination of Google to include privacy; in November, the agency held a desultory town-hall meeting to explore the issue.

I’m glad people like Chester are raising the salience of the issues here. If regulation were to guarantee stakeholders in search results more rights, this would not necessarily be an example of “big gub-mint” intruding on the magic of a “free market.” Rather, it might just amount to a tailored effort to adjust rules that have already given Google so much power and influence to better reflect what Greg Lastowka has called the “public’s indexical interest.”

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