Chandler on Regulating Search Engine Bias

By Eric Goldman

I find the topic of search engine bias especially fascinating because it seems to bring out strong pro-regulatory sympathies in many people. Just about every academic (other than me) who has written on the topic has sought ways to counteract any bias effects, typically through some form of regulatory intervention of the search industry.

The latest pro-regulatory article on this topic is Jennifer Chandler, “A Right to Reach an Audience: An Approach to Intermediary Bias on the Internet“, Hofstra Law Review, 2008. Jennifer’s article provides a great starting point if you want an overview of the issues and a summary of the pro-regulatory arguments. Among other highlights, the article explores the linkages between the search engine bias issue and the network neutrality debate and acknowledges the First Amendment doctrines that protect online intermediaries from regulation of their freedoms of expression.

The article anticipates some of my critiques of its arguments (made here), so I won’t replay that discussion here. But the following sentence from Jennifer’s article really caught my attention:

We have an opportunity with these novel information intermediaries to craft new approaches to the intermediary function that enable us to keep as much of the Internet’s free speech benefits as possible in a context where we are hopefully not bound by “the way it has always been.”

As this makes clear, the article embraces both search engine utopianism and exceptionalism. Starting from those premises, the article makes commendable arguments. But if those premises are wrong (and I think they are), then the resulting conclusions are destined to be wrong as well.

The abstract:

Some of the thorniest problems of communications law and policy were supposed to have been solved by the Internet. The issue of who can speak, or access the means of speech, was said to have been solved by the arrival of ubiquitous, relatively cheap access to the Internet. The problem of media concentration was supposed to have been solved now that so many more speakers could contribute. While the Internet has undoubtedly assisted with these problems, new gatekeepers have arisen, and that their actions are not necessarily supportive of a healthy, pluralistic communications environment. While the problem of access to the

means of speech seems to have been greatly alleviated by the Internet, the chokepoint has now shifted downstream to a class of intermediaries that select and filter information en route to listeners. Examples of this class of selection intermediaries include search engines, software filters, Internet Service Providers (ISPs) that block or filter content, and spam blocklists.

It is true that we have long been surrounded by too much information, and we have relied on various intermediaries to assist us in finding and choosing information. Why, then, is the role of selection intermediaries on the Internet worthy of comment? In my view, the Internet offers an opportunity for us to

craft new approaches to the selection intermediary function in a way that enables us to keep as much of the speech freedom engendered by the Internet as possible. There is a danger that by reflexively drawing analogies to familiar old selection intermediaries, such as libraries, we will tolerate selection criteria that erode the freedom of speech made possible on the Internet.

In the age of the Internet, a complete theory of communication rights must explicitly address the effects of selection intermediaries and recognize as protected each of the steps involved in the communicative relationship between speaker and listener. This includes not only the right to speak and the right to hear (which are already recognized forms of free speech rights), but also the right to reach an audience free from the influence of extraneous criteria of discrimination imposed by selection intermediaries. If selection intermediaries block or discriminate against a speaker on grounds that listeners would not have selected, that speaker’s ability to speak freely has been undermined. The paper makes a case for the recognition of this right. It also considers whether government regulations to give effect to this right could be imposed without violating the free speech rights of selection intermediaries.

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