Pasquale & Bracha on Regulating Search Engines
By Eric Goldman
Oren Bracha and Frank Pasquale, Federal Search Commission? Access, Fairness and Accountability in the Law of Search
Frank Pasquale has written several interesting papers on search engine regulation. See, e.g., my blog post on a prior work of his. This time, he teams up with Oren Bracha to explain why search engines shouldn’t have complete freedom to manage their own algorithms. Regular blog readers know that I vehemently disagree with this argument, but you might still find it worthwhile to check out how the other side thinks. My biggest beef with the paper is that it focuses principally on a search engine’s intentional and manual biasing of its algorithmic rankings to suppress/omit a specific website for illegitimate reasons (i.e., I think the authors are OK with search engine anti-spam efforts, at least if they are motivated for that purpose). While illegitimate suppression is an analytically interesting issue (not dissimilar to a situation where a newspaper editorial team is out to “get” a particular individual or company), the paper doesn’t offer much empirical evidence showing search engines actually engage (or have engaged) in the behavior that the paper seeks to redress. Thus, the paper may build a strong theoretical construct to attack a non-existent practice.
Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.
After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.
UPDATE: Oren and I have continued the debate here.