Are your search results Google’s opinion?

New information technology is a challenge for all of us, but particularly for lawyers who have to sort out the integration into existing law. A question that has been on my mind for a while, and one that I think we will hear more about in the future, is what is the legal status of search engines, or their search results respectively?

There has now been an interesting development in which Google asked a prominent law professor, Eugene Volokh, for an assessment of the legal classification of their service.

In a long report titled “First Amendment Protection for Search Engine Results,” which was summarized on Wired, Volokh argues that Google’s search engine is a media enterprise, and its search results are their opinion. They are thus covered by the US American First Amendment, which protects their “opinion” on what it might have been you were looking for, as a matter of “free speech.” (It should be noted that this report was funded by Google.)

It is hard for me to tell whether that is a good development or not. Let me explain why I am torn about this.

Search engine results, and Google in particular, have become an important, if not the most important, source of information for our societies. This information is the input to our decision making. If it is systematically skewed, democratic decision making can be altered, leading to results that are not beneficial to our well-being in the long run.

Of course this has been the case with media before the internet, and this tension always existed. However, non-commercial public broadcasting, often governmentally supported, does exist in pretty much all developed nations (though more prominently so in some countries than in others). Such non-commercial alternatives are offered in cases when it is doubtful that the free market alone will lead to an optimal result. When it comes to information in particular, the free market tends to optimize popularity because it correlates with profit, a goal which can differ from accuracy and usefulness.

There is also what I called the “key in the trunk” effect, the unfortunate situation in which the solution to a problem can only be assessed if the problem is solved: You need information to understand you lack information. Information plays a very crucial role to democracy.

Research in sociology and psychology has shown over and over again that people, when left to their own devices, will not seek for and think about the information they would need to make good decisions. We are, simply put, not always good in knowing what is good for us. Many problems that can be caused by making wrong decisions are irreversible – by the time the problem becomes obvious, it might be too late to change anything about it. This is often the case when it comes to information, and also in many other areas whose regulation is therefore not left to the free market alone. That’s why we have restrictions on the use of chemicals in food, and that’s why no developed nation leaves education entirely to the free market.

(Sometimes when I read articles in the US American press, I have the impression that especially the liberals like to think of the government as “they” who are regulating “us.” However, in any democratic nation, we do impose rules and regulations on ourselves. The government is not a distinct entity regulating us. It’s an organizational body we have put into power to help improve our living together.)

That it is sometimes difficult for the individual to accurately foresee consequences is also why we have laws protecting us from misinformation: Extreme misinformation makes democratic decision making prone to error. Laws preventing misinformation sometimes conflict with free speech.

Where the balance lies differs somewhat from one country to the next. In the USA, the First Amendment plays a very prominent role. In Germany, the first “Basic Right” is not the protection of free speech, but the protection of human dignity. Insults can bring you up to a year prison sentence. Either way, freedom of the press is a sacred right in all developed nations, and a very powerful argument in legal matters. (It is notoriously difficult to sue somebody for insult in any of its various manifestations. Aphrodite's middle-finger, see image to the right, which was on the cover of a German print magazine in February 2010, was covered by press freedom.)

So how should we smartly deal with an information source as important as Google has become?

On the one hand, I think that governmental intervention should be kept to a minimum, because it is most often economically inefficient and bears the risk of skewing the optimization a free market can bring. If you don’t like Google’s search result, just use a different search engine and trust in the dance of supply and demand. George Orwell's dystopian vision told us aptly what can happen if a government abuses power and skews information access to its favor, putting the keys into the trunk and slamming it shut.

On the other hand, Google is a tremendously influential player in the market of search engines already, and many other search engines are very similar anyway. Add to this that it’s not clear our preferences which Google is catering to are actually the ones that are beneficial in the long run.

This point has for example been made by Eli Pariser in his TED talk on “Filter Bubbles” that we discussed here. Confirmation bias is one of the best documented cognitive biases, and our ability to filter information to create a comfort zone can lead to a polarization of opinions. Sunstein elaborated on the problem of polarization and its detrimental effect to intelligent decision making to quite some length in his book “Infotopia.”

It is sometimes said that the internet is “democratic” in that everybody can put their content online for everybody else to see. However, this sunny idea is clearly wrong. It totally doesn't matter what information you put online if nobody ever looks at it, because it has no links going to it and is badly indexed by search engines. It might be that, in principle, your greatly informative website appears on rank 313 on Google. In practice that means nobody will ever look at it. Information doesn't only need to exist, it also has to be cheap in the sense that it doesn't necessitate great cost of time or energy to access it, otherwise it will remain unused.

Then you can go and say, but Google is a nice company and they do no evil and you can't buy a good Google ranking (though spending money on optimizing and advertising your site definitely helps). But that really isn't the point. The point is that it could be done. And if the possibility exists that some company's “opinion” can virtually make relevant information disappear from sight, we should think about a suitable mode of procedure to avoid that.

Or you could go and say, if some search engine starts censoring information, the dynamics of the free market will ensure some other takes the place, or people will go on the street and throw stones. Maybe. But actually it's far from clear that will happen. Because you need to know information is missing to begin with. And, seeing that Google's “opinion” is entirely automated, censorship might occur simply by mistake instead by evil thought.

So, are your search results Google's opinion? I'd say they are a selection of other people's opinions, arranged according to some software engineers' opinion on what you might find useful.

That having been said, I don't think it is very helpful to extrapolate from old-fashioned print magazines to search engines and argue that they play a similar role, based on a 1980 case in which an author, unsuccessfully, tried to sue the NYT over the accuracy of their best-seller list, a case which Volokh refers to. The diversity in search engines is dramatically lower than opinions that could be found in print in the 80s. At the same time the impact of online search on our information availability is much larger. Would you even know how to find a best-seller list without Google?

Now, I'm not a lawyer, and my opinion on this matter is as uninformed as irrelevant. However, I think that any such consideration should take into account the following questions:

First, what is the impact that search engine rankings can have on democratic decision making?

Second, what market share should make us get worried? Can we find some measure to decide if we are moving towards a worrisome dominance?

Third, is there any way to prevent this, should it be the case? For example by offering non-commercial alternatives or monitoring by independent groups (like it is the case eg with press freedom)?