Texas AG Investigating Google Search, and I Have Questions. The Biggest: Are You Kidding Me???

By Eric Goldman

Late on Friday afternoon before a three-day holiday weekend, Search Engine Land breaks the news that Greg Abbott, the Texas attorney general, is investigating Google’s search practices. Due to this timing, the news reports have been chaotic and incomplete, leaving open a number of questions, such as:

What is the Problem? Because the Texas AG’s office has not released any information about the investigation, we don’t know if the problem is with Google’s organic search algorithms, its AdWords rankings, or both. From Google’s blog post, all we know is that the Texas AG asked for more information about Google’s dealings with Foundem, myTriggers and TradeComet.

All three entities are vertical search engines that claim they were marginalized due to their status as Google competitors, even though no one I consider credible has agreed with their self-assessment of being bona fide Google competitors. As Danny Sullivan says (correctly IMO), those claims are “generally absurd.”

Is Microsoft Behind This Investigation? Microsoft has all but admitted that it is harassing Google on the antitrust front. Microsoft also has some indirect ties to Foundem, myTriggers and TradeComet. See this article for more on the Microsoft/Google chess match.

Danny Sullivan poses the question innocently: “Why an attorney general based out of Texas is investigating allegations made by non-Texas companies is unclear.” One possible hypothesis is that Microsoft and its team has been fomenting interest among state AGs as part of Microsoft’s campaign, and it finally found a taker. Of course, given how much state AGs love to bash dot coms (see, e.g., the state AGs’ group enforcements against Craigslist, Facebook and MySpace), an anti-Google initiative would be an intrinsically interesting possibility to dangle in front of a state AG…especially during an election year, when an attack on the mighty Google guarantees headlines. (Abbott is up for reelection in November).

Is There a Role for State AG Enforcement Against Google’s Search Practices? I’m always amazed by people who forget that Google’s organic search and ad ordering are editorial processes fully protected by the First Amendment. Part of this myopia is Google’s own fault. It has so successfully sold itself as a technology platform that we forget about the editorial processes embedded in its core business. As a result of those judgments, any legal challenges to Google’s search practices runs squarely into serious First Amendment considerations.

I’m also intrigued by the potential role of 47 USC 230(c)(2), a federal law which basically insulates websites’ filtering decisions from any state law causes of action (except state wiretapping laws and possibly state IP claims). The interplay between 230(c)(2) and antitrust claims is hardly clear, but it’s possible that the Texas AG’s efforts are completely preempted by the federal statute.

Remedies? Let’s assume Texas can actually establish a case against Google’s algorithms. Then what? Will Greg Abbott start telling Google how it should run its search engine? It’s hard to imagine that the cure will be better than the disease.

For More Information. I’ve been interested in legal regulation of Google’s algorithmic bias for some time. If you haven’t read it, I encourage you to check out my 2005 article, Search Engine Bias and the Demise of Search Engine Utopianism, where I argued that market forces are very effective at disciplining search engine algorithmic abuses. A lot has changed in the past 5 years (including the unfortunate terminology shift to “search neutrality” instead of search engine bias”), and I am just putting the finishing touches on a short update to the essay addressing those changes.

UPDATE: Paul Levy doesn’t agree with my legal analysis.