Federal search commission? Access, fairness, and accountability in the law of search

Cornell Law Review

Volumn 93, Issue 6, 2008, Pages 1149-1209

  Bracha, Oren ^a   Pasquale, Frank ^b,c  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

^b Seton Hall Law School ^*

^c World Anti Doping Agency   (Canada)

Author keywords

[No Author keywords available]

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EID: 54949090093     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (387)

1. JOHN BATTELLE, THE SEARCH: HOW GOOGLE AND ITS RIVALS REWROTE THE RILES OF BUSINESS AND TRANSFORMED OUR CULTURE 2 (2005).
2. Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641, 1641-42 (1967).
3. See, e.g., Christopher S. Yoo, Would Mandating Broadband Network Neutrality Help or Hurt Competition? A Comment on the End-to-End Debate, 3 J. ON TELECOMM. & HIGH TECH. L. 23, 28-29 (2004);
4. Markos Moulitsas Zúniga, The National Entertainment State, THE NATION, July 3, 2006, at 30 ("We need to focus on making sure progressives learn to use the tools of this new media landscape. That's where the new-century media wars will be fought and won.").
5. See, e.g., Zúniga, supra note 3.
6. See Rebecca MacKinnon, The National Entertainment State, THE NATION, July 3, 2006, at 18 (arguing that the new media conglomerates, such as Google, will eventually displace the old ones without solving issues discussed herein).
7. For a fanciful vision of this future, see EPIC 2014, (Robin Sloan & Matt Thompson), http://www.robinsloan.com/epic/ (predicting a future where one large search engine company replaces news as we know it with an "evolving personalized information construct," created by "computers [that] construct news stories dynamically, stripping sentences and facts from all content sources and recombining them").
8. See BATTELLE, supra note 1, at 1-3 (discussing the numerous sources of information about modern American culture that Google possesses and stockpiles, along with Google programs that make use of it).
9. For general surveys of the various policy and legal issues surrounding search engines, see generally Urs Gasser, Regulating Search Engines: Taking Stock and Looking Ahead, 8 YALE J.L. & TECH. 201 (2006), http:/www.yjolt.org/8/spring;
10. James Grimmelmann, The Structure of Search Engine Law, 93 IOWA L. REV. 1 (2007).
11. Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007); Kinderstart.com LLC v. Google, Inc., No. C 06-2057 JF (RS), 2006 U.S. Dist. LEXIS 82481 (N.D. Cal. July 13, 2006); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193 (W.D. Okla. May 27, 2003).
12. See Search King, 2003 U.S. Dist. LEXIS 27193, at *12 ("[T]he Court concludes that Google's PageRanks are entitled to 'full constitutional protection.'") (quotations and citations omitted); see also Langdon, 474 F. Supp. 2d at 630 ("[T]he Court will grant Google's and Microsoft's Motion To Dismiss the Amended Complaint on the basis that Plaintiff seeks relief precluded by their First Amendment rights."). To echo Barron's observation, search engines were vindicated in their claim for the "freedom to do as we choose with our media." Barron, supra note 2, at 1642.
13. See, e.g., Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 8 YALE J.L. & TECH. 188, 195 (2006), http:/www.yjolt.org/8/spring ("Like any other media company, search engines simply cannot passively and neutrally redistribute third party content (in this case, web publisher content).").
14. One early step in this direction was a proposal for the FTC to regulate paid listings in search engines. See generally Andrew Sinclair, Note, Regulation of Paid Listings in Internet Search Engines: A Proposal for FTC Action, 10 B.U. J. Sci. & TECH. L. 353 (2004). Our work focuses on the types of normative questions and constitutional concerns that must be addressed before proposals like Sinclair's can be comprehensively defended as a matter of law and policy.
15. Cf. YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 1 (2006) ("It seems passé today to speak of 'the Internet rovlution.' In some academic circles, it is positively naïve. But it should not be.").
16. See Thomas F. Cotter, Some Observations on the Law and Economics of Intermediaries, 2006 MICH. ST. L. REV. 67, 69-71 (2006) (discussing some of the functions of technological intermediaries, including their control of information flow from suppliers to consumers).
17. See, e.g., Goldman, supra note 11, at 199-200 (arguing that problems with search engine bias are likely to work themselves out over time and that search engines should be allowed to evolve without regulatory interference).
18. See Barron, supra note 2, at 1642 (tracing the modern struggle over control of media to the 1930s).
19. See Yochai Benkler, Communications Infrastructure Regulation and the Distribution of Control over Content, 22 TELECOMM. POL'Y 183, 187-88 (1998).
20. See BENKLER, supra note 13, at 190 ("By 1926 . . . the industrial structure that would lead radio to follow the path of commercial, advertiser-supported, concentrated mass media, dependent on government licensing and specializing in influencing its own regulatory oversight process was already in place."). Surveying the historical literature on media development, Benkler concludes that "[t]elevision followed radio, and was even more concentrated." Id. at 196. A chart of the current state of concentration in the mass media indicates the continuation of these trends into the twenty-first century. Peter Ahlberg et al., The National Entertainment State, THE NATION, July 3, 2006, at 23-26 fig.1, available at http://www.thenation.com/doc/ 20060703/mediachart.
21. See LANGDON WINNER, AUTONOMOUS TECHNOLOGY: TECHNICS-OUT-OF-CONTROL AS A THEME IN POLITICAL THOUGHT 228 (1977) ("In the complex, large-scale systems that characterize our time, it is seldom the case that any single individual or group has access to a technological process along the whole of its conception, operation, and result. More common is a situation in which persons have the opportunity to enter into the process at one point only. . . . [such as] that of the consumer . . . .").
22. See generally Jennifer Chandler, The Autonomy of Technology: Do Courts Control Technology or Do They Just Legitimize Its Social Acceptance?, 27 BULL. SCI. TECH. & SOC'Y 339 (2007) (discussing case studies supporting the hypothesis "that judges, through various private law principles, support and legitimize novel technologies. . . . [by] characterizing] harm as flowing not from a technology that actually alters the world but from a rejection of that technology . . . and[ ] whitt[ing] away at fundamental theoretical principles of the law in order to promote efficiency in mass production and distribution.").
23. See generally Cotter, supra note 14.
24. See id.
25. Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879, 1881 (2000).
26. See generally ROBERT W. MCCHESNEY, TELECOMMUNICATIONS, MASS MEDIA, AND DEMOCRACY: THE BATTLE FOR THE CONTROL OF U.S. BROADCASTING, 1928-1935 (1993) (providing a comprehensive view of broadcast reform efforts in the early twentieth century).
27. See BENKLER, supra note 13, at 209 (describing this flow of information and noting that it is still the norm in mass communications); RONALD K.L. COLLINS & DAVID M. SKOVER, THE DEATH OF DISCOURSE 36 (1996) ("The electronic First Amendment . . . unleashes the forces of self-amusement and commercial corporate gain.
28. It thereby debases the values of meaningful public discourse, effective dissent, and informed collective decisonmaking . . . ."); DANILO ZOLO, DEMOCRACY AND COMPLEXITY: A REALIST APPROACH 155-56 (David McKie trans., 1992) (calling for academic focus on the relationship between mass media outlets and the general population, seemingly as an effort to undermine the reality defining power of the former).
29. For more on "theories of the consumer," see Joseph Liu, Copyright's Law's Theory of the Consumer, 44 B. C. L. REV. 397, 397 (2003) (describing how "copyright law currently conceives of consumers in one of two ways, either as passive consumers of copyrighted works or as active authors in their own right").
30. ALEXANDER MEIKLEJOHN, The Rulers and the Ruled, in POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 8, 25-28 (Oxford Univ. Press 1965) (1948).
31. See generally BENKLER, supra note 13, at 199-204 (citing examples of such control).
32. Id.
33. See Netanel, supra note 22, at 1882 (describing the tendency to tailor content toward the wealthy); cf. C. EDWIN BAKER, ADVERTISING AND A DEMOCRATIC PRESS 50-56 (1994) (discussing the same tendency as favoring advertisers).
34. BENKLER, supra note 13, at 165 ("[A]dvertiser- supported media tend to program lowest-common-denominator programs, intended to 'capture the eyeballs' of the largest possible number of viewers. These media do not seek to identify what viewers intensely want to watch, but tend to clear programs that are tolerable enough to viewers so that they do not switch off their television.").
35. BENKLER, supra note 13, at 204-08; Barron, supra note 2, at 1645-46.
36. See BAKER, supra note 27, at 62-66 (describing the impact of advertiser concerns on content); see also AVNER OFFER, THE CHALLENGE OF AFFLUENCE: SELF-CONTROL AND WELL-BEING IN THE UNITED STATES AND BRITAIN SINCE 1950, at 135-37 (2006) (noting that "[f]reedom from advertising is a good . . . . Unfortunately it is a public good, of which there is not always enough.");
37. NAOMI KLEIN, NO LOGO: TAKING AIM AT THE BRAND BULLIES 39 (2000) ("It is common knowledge that many advertisers rail at controversial content [and] pull their ads when they are criticized even slightly . . . .").
38. See generally BENJAMIN R. BARBER, CON$UMED: HOW MARKETS CORRUPT CHILDREN, INFANTTUZE ADULTS, AND SWALLOW CITIZENS WHOLE (2007).
39. See, e.g., Carl Sessions Stepp, Access in a Post-Social Responsibility Age, in DEMOCRACY AND THE MASS MEDIA: A COLLECTION OF ESSAYS 186, 194 (Judith Lichtenberg ed., 1990) ("Part of the problem at hand is that the institutional press is already too much in alliance with the power classes; turning to government hardly alleviates the situation."); Yoo, supra note 3.
40. See, e.g., PETER W. HUBER ET AL., FEDERAL TELECOMMUNICATIONS LAW § 1.9, at 55 (2d ed. 1999) ("Congress called on the FCC to forbear from regulating, consistent with the public interest, wherever such regulation is not necessary to ensure that charges are just and reasonable or to protect consumers.").
41. See BENKLER, supra note 13, at 2-3 (discussing the rise of the Internet as a primary factor in the changing of the information-exchange meta-structure).
42. Id.
43. Jonathan L. Zittrain, The Generative Internet, 119 HARV. L. REV. 1975, 1975 (2006) ("From the moment of its inception in 1969, the Internet has been designed to serve both as a means of establishing a logical network and as a means of subsuming existing heterogeneous networks while allowing those networks to function independently . . . .").
44. See BENKLER, supra note 13, at 2-3.
45. See, e.g., Reno v. ACLU, 521 U.S. 844, 853 (1997) ("Any person or organization with a computer connected to the Internet can 'publish' information.").
46. See Yochai Benkler, Coase 's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369 (2002) (describing the economic implications of peer production enterprises).
47. See id. at 372 (citing Ronald H. Coase, The Nature of the Firm, 4 ECONOMICA 386 (1937)).
48. See id. at 371-72 (suggesting that the emergence of free software forces us to reexamine the traditional "firm" approach to productivity).
49. See Cotter, supra note 14, at 71; Kathleen M. Sullivan, First Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L. REV. 1653, 1670-73 (1998);
50. Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1834-39 (1995) (describing the positive and negative effects of eliminating media intermediaries).
51. See, e.g., Mary Reinholz, PR Users Find Power, Pitfalls on the Internet, O'DWYER'S PR SERVICES REP., June 1995, at 1 (stating that the Internet eliminates the press intermediary);
52. Martin Slofstra, These Students Optimistic About What Future Holds, COMPUTING CAN., Nov. 8, 1995, at 8 (stating that the Internet eliminates business intermediaries).
53. See, e.g., NEIL POSTMAN, TECHNOPOLY: THE SURRENDER OF CULTURE TO TECHNOLOGY (1992) (arguing that technology undermines social relations);
54. DAVID SHENK, DATA SMOG: SURVIVING THE INFORMATION GLUT (1997) (arguing that the Internet creates an incessant barrage of stimulus);
55. KRISTAN J. WHEATON, THE WARNING SOLUTION: INTELLIGENT ANALYSIS IN THE AGE OF INFORMATION OVERLOAD (2001);
56. Benjamin R. Barber, Three Scenarios for the Future of Technology and Strong Democracy, 113 POL. SCI. Q. 573 (1999) (describing the Pangloss scenario, Pandora scenario, and Jeffersonian scenario for a technology-filled world);
57. Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L.J. 1639 (1995) (describing how the Internet creates concerns of anonymity, autonomy, and accountability).
58. HUBER ET AL., supra note 32, § 1.16, at 77-78.
59. Reno v. ACLU, 521 U.S. 844, 870 (1997).
60. They followed Ithiel de Sola Pool's approach, outlined in Technologies of Freedom, which "argued that media convergence and the democratizing aspects of the new media should bring a convergence of constitutional treatment, and that under the First Amendment all media should be governed by the print model." Patrick M. Garry, The First Amendment in a Time of Media Proliferation: Does Freedom of Speech Entail a Private Right to Censor?, 65 U. PITT. L. REV. 183, 194 (2004)
61. (citing ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM (1983)).
62. See, e.g., Ashcroft v. ACLU, 542 U.S. 656 (2004) (invalidating the Child Online Protection Act); Reno, 521 U.S. at 885 ("The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."); Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004) (invalidating a state statute requiring Internet service providers to block websites displaying child pornography).
63. See Reno, 521 U.S. at 870.
64. Owen Fiss traced the history of this discussion in a chapter entitled "The Democratic Mission of the Press" in his book The Irony of Free Speech. OWEN M. FISS, THE IRONY OF FREE SPEECH 54 (1996) ("Others concerned with the constitutional adequacy of the market - the perfectionists - accepted the populist critique of the market but saw state intervention in more abstract terms. Their goal was not to offer what the people would want in some imagined democratic assembly but rather to achieve an objective ideal: apprising the people of the issues before them, providing them with the necessary information, and presenting them with the conflicting positions.").
65. See, e.g., Martin H. Redish & Kirk J. Kaludis, The Right of Expressive Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma, 93 NW. U. L. REV. 1083, 1131-32 (1999) (arguing that government regulation of the Internet may skew the flow of public debate); Volokh, supra note 41, at 1846-47 (suggesting that the Court's libertarian rationale for free speech applies to the Internet even more than print media).
66. See Frank Pasquale, Copyright in an Era of Information Overload: Toward the Privileging of Categorizers, 60 VAND. L. REV. 135, 165 (2007) ("[A]ny bit of expression that signals something to one who wants exposure to it may constitute noise to thousands of others.").
67. SHENK, supra note 43, at 30-31 (describing declining "signal-to-noise ratio" in contemporary communication).
68. Cf. RICHARD A. LANHAM, THE ECONOMICS OF ATTENTION: STYLE AND SUBSTANCE IN THE AGE OF INFORMATION 7 (2006) ("What then is the new scarcity that economics seeks to describe? It can only be the human attention needed to make sense of information.").
69. See Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View From Liberal Democratic Theory, 88 CAL. L. REV. 395, 440-42, 463-64 (2000).
70. Cf. Guy Pessach, Copyright Law as a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright's Diversity Externalities, 76 S. CAL. L. REV. 1067, 1091 (2003) (arguing that dominant media corporations can act as gatekeepers because of high financial costs and economies of scale).
71. See Netanel, supra note 22, at 1887-93; Timothy Wu, Application-Centered Internet Analysis, 85 VA. L. REV. 1163, 1179-80 (1999);
72. see also Eli M. Noam, Will the Internet Be Bad for Democracy?, Nov. 2001, http://www.citi.columbia.edu/elinoam/articles/ int_bad_dem.htm ("[I]t would be . . . naïve to cling to the image of the early Internet - nonprofit, cooperative, and free - and ignore that it is becoming a commercial medium . . . .").
73. Clay Shirky, Power Laws, Weblogs, and Inequality, NETWORKS ECON. & CULTURE MAILING LIST, Feb. 8, 2003, http://www.shirky.com/writings/powerlaw_weblog.html ("Diversity plus freedom of choice creates inequality, and the greater the diversity, the more extreme the inequality. In systems where many people are free to choose between many options, a small subset of the whole will get a disproportionate amount of traffic (or attention, or income), even if no members of the system actively work towards such an outcome. . . . The very act of choosing, spread widely enough and freely enough, creates a power law distribution.").
74. ALBERT-LÁSZLÓ BARABÁSI, LINKED: HOW EVERYTHING IS CONNECTED TO EVERYTHING ELSE AND WHAT IT MEANS FOR BUSINESS, SCIENCE, AND EVERYDAY LIFE 56 (2003).
75. See BENKLER, supra note 13.
76. See id. at 12-13.
77. See id. at 253-55.
78. See id. at 242.
79. See id. at 242, 247-53.
80. See id. at 260-61 ("The pattern of information flow in such a network is more resistant to the application of control or influence than was the mass-media model."). Benkler has conceded that the type of concentration we diagnose here could vitiate these developments. See id. at 261 ("Google could become so powerful on the desktop, in the e-mail utility, and on the Web, that it will effectively become a supernode that will indeed raise the prospect of a reemergence of a mass-media model. Then the politics of search engines . . . become central.").
81. See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 9-10 (2004).
82. See id. at 9-13 ("[T]he Internet has provided an additional layer of communication that rests atop the mass media, draws from it, and in turn influences it"); see also James Grimmelmann, Trackback and Free Speech, YALE LAWMEME, June 18, 2003 (noting that a Trackback function effectively creates a "right of reply" that demands almost nothing of replied-to speech, for "if you write a blog entry which comments on my blog entry, you can send the 'ping' to my server at the same time as you post the entry to your blog. This means that readers of my blog now know that you've written something following up on my entry and can immediately click through to read it.").
83. But see Frank Pasquale, From Right-of-Reply to Norm-of-Trackback, CONCURRING OPINIONS, May 2, 2007, http://www.concurringopinions.com/archives/2007/05/from_rightofrep.html (observing that some mainstream media sites do not indicate " trackbacks" on articles' websites).
84. See Balkin, supra note 65, at 9-13, 31-32.
85. See, e.g., PAULINA BORSOOK, C YBERSELFISH: A CRITICAL ROMP THROUGH THE TERRIBLY LIBERTARIAN CULTURE OF HIGH TECH 2-3, 8-9 (2000) (discussing technolibertarianism).
86. Compare JAMES DALE DAVIDSON & WILLIAM REES-MOGG, THE SOVEREIGN INDIVIDUAL: HOW TO SURVIVE AND THRIVE DURING THE COLLAPSE OF THE WELFARE STATE 14-18 (1997) (predicting an Internet-driven demise of the nation-state as cybercurrency replaces traditional forms of money),
87. with JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET? ILLUSIONS OF A BORDERLESS WORLD 6-7 (2006) (describing in detail the steps governments have taken to prevent the Internet from undermining their powers).
88. See, e.g., John Perry Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, WIRED, Mar. 1994, at 84, 85, available at http://www.wired. com/wired/archive/2. 03/economy.ideas_pr.html ("Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here).").
89. Cf. GOLDSMITH & WU, supra note 69, at 6-7 (discussing how IP-identification technology and self-reporting might permit companies to identify users by geography for the purpose of filtering content).
90. See Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, 8 VA. J.L. & TECH. 6, 7-9 (2003);
91. Ronald J. Mann & Seth R. Belzley, The Promise of Internet Intermediary Liability, 47 WM. & MARY L. REV. 239, 275-306 (2005) (discussing the potential regulation of auction intermediaries, payment intermediaries, and ISPs, among others);
92. Jonathan Zittrain, Internet Points of Control, 44 B.C. L. REV. 653, 654-55 (2003).
93. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 109 (1999) ("Nature doesn't determine cyberspace. Code does. Code is not constant. It changes.").
94. See id. at 6 (arguing that the Internet, as a product of technology, is a malleable entity that continues to evolve at the hands of regulators).
95. See generally James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. CIN. L. REV. 177 (1997) (arguing that, contrary to long-held popular belief, the state has the capability to regulate the Internet through private systems of digital surveillance and control).
96. See Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 WASH. L. REV. 1035, 1040 (2002) ("[O]nce an innovation enters society it is influenced by more than economic forces driven by competitive considerations and laws targeted at the technological makeup of the innovation. Societal values, norms, or institutes and their legal manifestations that were not originally formed to apply to the technology in question may force the technology to be altered or even completely rejected.").
97. See Gaia Bernstein, Accommodating Technological Innovation: Identity, Genetic Testing and the Internet, 57 Vand. L. Rev. 963, 963 (2004); Bernstein, supra note 76, at 1039-40;
98. Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151, 1168 (2007) ("[T]he umbrella field known as science and technology studies ("STS") has sought to illuminate the social construction of both scientific knowledge and technical artifacts using the tools of social and cultural theory.");
99. Annalise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 BUFF. L. REV. 973, 985 (2005) ("Science and Technology Studies (STS) . . . scholars have long recognized the value of an ethnographic approach to the production of scientific and technical thought.").
100. Riles, supra note 77, at 986.
101. See WINNER, supra note 19, at 55; Chandler, supra note 19, at 348 (discussing case studies supporting the hypothesis "that judges, through various private law principles, support and legitimize novel technologies. . . . [by] characteriz[ing] harm as flowing not from a technology that actually alters the world but from a rejection of that technology . . . and[ ] whittl[ing] away at fundamental theoretical principles of the law in order to promote efficiency in mass production and distribution.").
102. See LESSIG, supra note 73, at 91-92 (discussing examples of the ways in which the law can force changes in technology).
103. For example, "[t]he Communications Assistance for Law Enforcement Act . . . requires extensive and costly modifications to equipment to help law enforcement officials tap into the modern digital network and its cataracts of hyperentropic bits." HUBER ET AL., supra note 32, § 14.2.5, at 1223 (citing Communications Assistance for Law Enforcement Act, 47 U.S.C. §§ 1001-1009 (2000)).
104. See id. § 1.8, at 49 ("After the FCC finally approved commercial cellular telephone systems in 1982, the market grew explosively.").
105. See, e.g., Niva Elkin-Koren, Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing, 26 U. DAYTON L. REV. 179 (2001);
106. Lucas D. Introna & Helen Nissenbaum, Shaping the Web: Why the Politics of Search Engines Matters, 16 INFO. SOC'Y 169 (2000).
107. See, e.g., Elkin-Koren, supra note 83, at 185 ("Search engines function as virtual gatekeepers and could considerably affect the available options for online consumers, and thus, their actual choices.").
108. See id. at 183-85.
109. See Introna & Nissenbaum, supra note 83, at 169-70.
110. Elkin-Koren, supra note 83, at 180; Niva Elkin-Koren, The New Intermediaries in the Virtual Marketplace, 6 MISHPAT U-MIMSHAL 365, 396-98 (2002) (in Hebrew).
111. See Elkin-Koren, supra note 83, at 185.
112. See id.
113. See id.
114. Introna & Nissenbaum, supra note 83, at 171.
115. Users may, for example, try to guess a URL for a trademarked company's site or products, and a guess like www.cocacola.com will lead to the company that owns the mark COCA-COLA. There are also web-based directories like those maintained by Yahoo! and the Open Directory project. But the vast majority of searchers use search engines, and it is hard to imagine this changing any time soon. See Pasquale, supra note 51, at 175 ("Both trademarks and categorizers [like search engines] help ease the burden of choosing between an ever-increasing number of goods and services.").
116. See Frank Pasquale, Ranking vs. Mapping Knowledge, MADISONIAN.NET, June 25, 2006, http://madisonian.net/archives/2006/06/ 25/ranking-vs-mapping-kowledge (noting the problems caused by ranking systems and calling for "a technological or even aesthetic [method] . . . of representing data that does not lend itself to the commensurating metric of ranking.").
117. See Frank Pasquale, Rankings, Reductionism, and Responsibility, 54 CLEV. ST. L. REV. 115, 130-31 (2006) ("Economists have explored how positional dynamics in a number of different markets . . . have led to socially wasteful 'arms races' for positional advantage. In ordinary markets, the presence of high-spending consumers will draw more producers so that, eventually, supply will approach demand. However, there can only be one 'top-ranked' site. Tactics to influence unpaid listings and prices for paid listings are sure to escalate, but it is not clear that this competition creates much utility.").
118. See NICO BROOKS, ATLAS INST., THE ATLAS RANK REPORT: HOW SEARCH ENGINE RANK IMPACTS TRAFFIC 3, (2004), http://app.atIasonepoint.com/pdf/AtlasRankReport.pdf ("Traffic drops significantly by rank.");
119. DEBORAH FALLOWS ET AL., PEW INTERNET & AM. LIFE PROJECT, DATA MEMO: THE POPULARITY AND IMPORTANCE OF SEARCH ENGINES 2 (Aug. 12, 2004), http://www.pewinternetorg/pdfs/ PIP_Data_Memo_Searchengines.pdf ("The average visitor scrolled through 1.8 result pages during a typical search.*);
120. LESLIE MARABLE, CONSUMER WEB WATCH, FALSE ORACLES: CONSUMER REACTION TO LEARNING THE TRUTH ABOUT HOW SEARCH ENGINES WORK - RESULTS OF AN ETHNOGRAPHIC STUDY 5 (June 30, 2003), http://www. consumerwebwatch.org/pdfs/false-oracles.pdf;
121. Robyn Greenspan, Searching for Balance, CLICKZ STATS, Apr. 30, 2004, http://www.clickz.com/showPage.html? page=3348071 ("[A]ttaining top-10 rankings in Google is hard work . . . . Search marketing today requires that companies address the entire search result page, not just the left or the right side.") (internal quotations omitted).
122. See Bernard J. Jansen & Marc Resnick, Examining Searcher Perceptions of and Interactions with Sponsored Results 2 (June 2005) (unpublished paper, presented at the Workshop on Sponsored Search Auctions at ACM Conference on Electronic Commerce, Vancouver, BC, Canada), available at http://ist.psu.edu/faculty_pages/jjansen/academic/ pubs/ jansen_ecommerce_workshop.pdf ("[T]he likelihood of a searcher selecting a sponsored listing is a curvilinear function of its placement on the page (i.e., based on rank). The higher the link's placement in the results listing, the more likely a searcher is to select it. The study found similar results with organic listings. Generally, the difference between the first position and the tenth position is a 20%-30% drop in click through (i.e., customer that actually visits a web site by clicking on a link from a SERP [search engine results page]) for the listing. . . . [T]he conversion rate (i.e. customers that actually buy something) drops nearly 90% between the first and tenth position. Obviously, there appears to be an intrinsic trust value associated with the rating of a listing.")
123. (citing NICO BROOKS, ATLAS INST., THE ATLAS RANK REPORT - PART II: HOW SEARCH ENGINE RANK IMPACTS CONVERSIONS (2004), http://app.atlasonepoint.com/pdf/ AtlasRankReportPart2.pdf).
124. Securing copyright permissions for indexed material is but one of many factors tending toward concentration. See Pasquale, supra note 51, at 180 ("In a world in which categorizers need licenses for all the content they sample [and index], only the wealthiest and most established entities will be able to get the permissions necessary to run a categorizing site."); see infra Part III.A (discussing this and other factors contributing to concentration).
125. See supra note 86 and accompanying text.
126. See supra notes 83-92 and accompanying text.
127. See Goldman, supra note 11, at 193.
128. See id.
129. Before Google went public, its founders explained its basic design and, in an appendix to that paper, said "we expect that advertising funded search engines will be inherently biased towards the advertisers and away from the needs of the consumers." Sergey Brin & Lawrence Page, Computer Science Department of Stanford University, The Anatomy of a Large-Scale Hypertextual Web Search Engine § 8, at 18 (2000), http://info-lab. stanford.edu/~backrub/google.html. See also Grimmelmann, supra note 8, at 11-13 (arguing that the method by which most search engines obtain funding creates incentives to favor sites that advertise with the search engine).
130. For a recent analysis of revenue flow in the search business, see Brian Grow & Ben Elgin, Click Fraud: The Dark Side of Online Advertising, BUS. WK., Oct 2, 2006, at 46. Recent research based on interviews of search engineers confirms these worries: The schemas clearly in the ascendant - the dominant market schema and the science-technology schema - provide little scope to raise issues of public welfare, fairness, or bias. Instead, they emphasize profit in the case of the market schema, or progress and efficiency, in the case of the science-technology schema . . . .
131. Elizabeth Van Couvering, Is Relevance Relevant? Market, Science, and War Discourses of Search Engine Quality, 12 J. COMPUTER- MEDIATED COMM. 866, 884 (2007).
132. See BENKLER, supra note 13, at 12 (The "emergence of non-market, peer-produced alternative sources of filtration and accreditation in place of the market-based alternatives" is one key response "to the information overload problem."); Balkin, supra note 65, at 9.
133. See Balkin, supra note 65, at 9.
134. See id.
135. See Elkin-Koren, supra note 83, at 192-95; Elkin-Koren, supra note 87, at 396; Pasquale, supra note 51, at 140-41 (advocating better fair use treatment of categorizers who "creat[e] the types of navigational tools and filters that help consumers make sense of the ocean of" expression incentivized by copyright law).
136. See Pasquale, supra note 51, at 184 (calling for more fair use protection for categorizing and indexing services); Hannibal Travis, Google Book Search and Fair Use: iTunes for Authors, or Napster for Books?, 61 U. MIAMI L. REV. 87, 91 (2006) ("[C]ourts will best serve intellectual property and antitrust policy by concluding that Google is making fair and permissible uses of copyrighted works when it enhances the efficiency with which they are marketed and sold.").
137. Eric Goldman, Deregulating Relevancy in Internet Trademark Law, 54 EMORY L.J. 507, 511, 590-93 (2005) (arguing that "search providers should have both common law and statutory safe harbors").
138. For more on "authoritativeness" and "responsibility" as normative bases of search law, see Pasquale, supra note 94, at 125-28 (outlining "Twin Goals for Search Law: Responsible and Authoritative Metadata").
139. See infra Part I.B.2.
140. See infra.
141. See infra Parts III-IV (explaining how regulation can help to solve the problems of search engine manipulation and detailing the obstacles to regulation with regard to these problems).
142. Goldman, supra note 11, at 189 ("Like other media companies, search engines make editorial choices designed to satisfy their audience. These choices systematically favor certain types of content over others, producing a phenomenon called 'search engine bias.'"); see also Batya Friedman & Helen Nissenbaum, Bias in Computer Systems, 14 ACM TRANSACTIONS ON INFO. SYSTEMS 330 (1996) (discussing bias in reservation systems);
143. A bbe Mowshowitz & Akira Kawaguchi, Bias on the Web, 45 COMM. ACM 56 (2002) (computing the bias of Google and other search engines in some searches).
144. See Goldman, supra note 11, at 189.
145. See id. at 191-92.
146. See id at 195-97; Grimmelmann, supra note 8, at 21 ("Several problems make it difficult to set a proper baseline of 'unbiased' results."). Though the leading search engines are commercial enterprises, a universal structural bias in favor of commercial sites could still be quite troubling, depending on one's normative standpoint. See Ellen P. Goodman, Stealth Marketing and Editorial Integrity, 85 TEX. L. REV. 83, 89 (2006) ("Stealth marketing . . . [can take the form of] conventional payola, where the sponsor promotes a media experience, such as a musical work, by purchasing audience exposure to the experience as a form of advertisement Pay-for-play in broadcasting is similar to the use of slotting fees in the retail industries to obtain preferential shelf space in supermarkets and book stores. Online retail outlets also use slotting fees of a sort when portals like Amazon and Google accept payments for exposure of a particular product or service.").
147. These were the allegations at stake in the Search King case; Search King claimed that Google had lowered its ranking. As Google's answer put it "Search King filed its Complaint and Amended Complaint solely on the basis that Google improperly reduced the PageRank it assigned to pages on Search King's site." Answer at 1, Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457M, U.S. Dist. LEXIS 27193 (W.D. Okla. Dec. 30, 2002).
148. See Pasquale, supra note 94, at 117 ("Such harms include unwanted high-ranking results relating to them, or exclusion from a page they claim it is their "due" to appear on."); see also Grimmelmann, supra note 8, at 24-27 (discussing content providers' interest in maintaining some control over the type and number of users that navigate to their content).
149. Grimmelmann discusses inclusion harms under the headings of "reputation" and "privacy." See Grimmelmann, supra note 8, at 27-30 (discussing the harm caused to providers when search engines allow users to access their content without proper authorization).
150. See Grimmelmann, supra note 8, at 27-28. See generally, Goldman, supra note 108 (arguing that courts should "[d]eregulate the keyword in Internet searching" and proposing adjustment to trademark law suitable for achieving this purpose); Greg Lastowka, Google's Law, 73 BROOK. L. REV. 1327 (2008) (summarizing how trademark law has been applied to search engines, starting with early meta tag cases and concluding with Google's current attempts to insulate itself from liability under an expanded doctrine of trademark use).
151. Saul Hansell, Inside the Black Box: Why Google Can't Stop Tweaking Its Search Engine, N.Y. TIMES, June 3, 2007, at C1 (describing constant changes to algorithms devised by the search quality department at Google).
152. Van Couvering, supra note 102, at 877; Grimmelmann, supra note 8, at 36-39. Van Couvering describes a "war schema," adopted in response to hackers and spammers, whereby decision making is characterized not by any kind of appeal to hierarchy, consensus, or objective measure but rather by who can "win," even though several interviewees likened it to an "arms race" in which no one was likely to come out on top. This particular metaphor, the "arms race," was not used about competing with other businesses. Spammers were also likened to criminals, particularly fraudsters or conmen, and specifically contrasted with "honest" people. Van Couvering, supra note 102, at 877.
153. See Letter from Heather Hippsley, Acting Assoc. Dir. of Adver. Practices, FTC, to Gary Ruskin, Executive Dir., Commercial Alert (June 27, 2002), http://www.commercial alert.org/PDFs/ftcresponse.pdf (recommending that search engines segregate organic results from those resulting from purchased adwords);
154. see also Shari Thurow, Black-Hat Myths About White-Hat SEO, CLICKZ, Jan. 31, 2005, http://www.clickz.com/showPage.htmlPpage= 3465751 ("[A] white-hat search engine marketing (SEM) firm, commonly known as an ethical SEM firm, follows all the guidelines, terms, and conditions set forth by the search engines. A black-hat SEM firm doesn't follow all the search engines' rules.").
155. Erik J. Heels, The Brand Wars are Coming! How to Defend Your Brands on the Internet, L. PRAC., July 2007, at 24, available at http://www.abanet.org/lpm/magazine/articles/v33/ is5/an16.shtml ("Don't think that you can use search engine optimization (SEO) or other tricks alone to improve your standing with Google. If you try to trick Google, then you run the risk of having your organic search results demoted (graylisting) or removed entirely (blacklisting). So if Google says that paying for other sites to link to your site is a bad thing, you may have to listen, at least until a viable competitor to Google steps up.").
156. See, e.g., Google, Welcome to Adwords: Advertise Your Business on Google, https:// adwords.google.com/select/Login (last visited Apr. 8, 2008). The major search engines maintain a visual separation between paid and organic rankings. To the extent this separation is blurred, the FTC might step in to prevent deception of consumers. See Letter from Heather Hippsley to Gary Ruskin, supra note 123.
157. See Pasquale, supra note 94, at 121.
158. As John Dewey observed, "Majority rule, just as majority rule, is as foolish as its critics charge it with being. But it never is merely majority rule. . . . 'The means by which a majority comes to be a majority is the more important thing': antecedent debates, modification of views to meet the opinions of minorities . . . . The essential need, in other words, is the improvement of the methods and conditions of debate, discussion, and persuasion." JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS 207-08 (Ohio Univ. Press 1976) (1927).
159. See generally ALAN MCKEE, THE PUBLIC SPHERE: AN INTRODUCTION (2005);
160. AFTER HABERMAS: NEW PERSPECTIVES ON THE PUBLIC SPHERE (Nick Crossley & John Michael Roberts eds., 2004);
161. HABERMAS AND THE PUBLIC SPHERE (Craig Calhoun ed., 1992).
162. For an example of the application of this idea to the media context, see Nicholas Garnham, The Media and the Public Sphere, in COMMUNICATING POLITICS: MASS COMMUNICATIONS AND THE POLITICAL PROCESS 37 (Peter Golding et al. eds., 1986).
163. JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE: AN INQUIRY INTO A CATEGORY OF BOURGEOIS SOCIETY (Thomas Burger trans., paperback ed. 1991) (1962) (anticipating regulative ideal of an "ideal speech situation" designed to give primacy to the "unforced force of the better argument").
164. See Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 219-24 (1996). This idea is captured by the Supreme Court's famous observation that the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Associated Press v. United States, 326 U.S. 1, 20 (1945).
165. See Balkin, supra note 65, at 33-45.
166. Introna & Nissenbaum, supra note 83, at 170 ("Search engines constitute a powerful source of access and accessibility within the Web.").
167. AMY N. LANGVILLE & CARL D. MEYER, GOOGLE'S PAGERANK AND BEYOND: THE SCIENCE OF SEARCH ENGINE RANKINGS 28 (2006) ("PageRank's thesis is that a webpage is important if it is pointed to by other important pages.").
168. See supra text accompanying notes 93-97.
169. See, e.g., Frank Pasquale, Political Google Bombing, CONCURRING OPINIONS, Oct. 27, 2006, http://www. concurringopinions.com/archives/2006/10/political_googl.html (critiquing "search engine optimization" as a "commodification of salience").
170. For a critical treatment of the "perfect information" ideal in economic thought, see JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 35-46 (1996) (discussing problems that arise due to the commodification of information, when information is treated simultaneously as a product and a prerequisite of a well-functioning market).
171. A perfect market is usually defined as one in which all participants possess full information. Joseph E. Stiglitz, Information, in THE CONCISE ENCYCLOPEDIA OF ECONOMICS 267, 267 (David R. Henderson ed., 2008) (2007), available at http://www.econlib.org/ library/Enc/Information.html (last visited Apr. 8, 2008) (observing that "[m]any of the central theories and principles in economics are based on assumptions about perfect information"). Of course, the concept is doomed to be an idealized one, but it remains one of the regulative ideals of economic thought.
172. See Sanford J. Grossman & Joseph E. Stiglitz, On the Impossibility of Informationally Efficient Markets, 70 AM. ECON. REV. 393 (1980).
173. This concern in regard to search engine manipulation is directly parallel to the points made by advocates of net neutrality, who worry about the economic consequences of giving ISP's a right to discriminate among traffic from different users or applications. The analogy is between gatekeepers who can exercise their position to decrease or increase the ability of various users to effectively interact or compete using the Net's infrastructure, thereby adversely affecting competition, innovation, and value-generating activities at the "ends" of the network. See Brett M. Frischmann & Barbara van Schewick, Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo, 47 JURIMETRICS J. 383, 409 (2007);
174. Mark A. Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. REV. 925 (2001);
175. Tim Wu, Why Have a Telecommunications Law?, 5 J. ON TELECOMM. & HIGH TECH. L 15 (2006). There are two main differences between ISP discrimination and search engine manipulation that may make the latter a more complex issue. First, unlike ISP discrimination, search engine manipulation often does not directly influence the quality of the product service, or interaction supplied by the affected entities. Second, unlike packet routing, search results, due to their inherently hierarchical structure, cannot be entirely neutral: someone will have to be at the top of the list and others at the bottom. Nevertheless, the effect of manipulation on an element that is critical for many actors' ability to effectively compete in the market and the potential of radical intervention by search engines exercising control over the relevant infrastructure make the case analogous to ISP discrimination. Ironically, Google - the archenemy of regulating search engine manipulation - is one of the foremost corporate advocates of net neutrality.
176. See, e.g., A Guide to Net Neutrality for Google Users, http://www.google.com/help/netneutrality.html (last visited Apr. 8, 2008);
177. Richard Whitt, What Do We Mean by "Net Neutrality"?, GOOGLE PUB. POL'Y BLOG, June 16, 2007, http:// googlepublicpolicy.blogspot.com/2007/06/what-do-we-mean-by-net- neutrality.html ("Without nondiscrimination safeguards that preserve an environment of network neutrality, the Internet could be shaped in ways that only serve the interests of broadband carriers, rather than U.S. consumers and Web entrepreneurs.").
178. Frank Pasquale, Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines, 2008 U. CHI. LEGAL F. (forthcoming Oct 2008) (arguing that search engines' advocacy for transparency and accountability for carriers - via principles such as net neutrality - suggests guidelines for the regulation of search engines themselves).
179. Jon Kleinberg & Steve Lawrence, The Structure of the Web, 294 SCIENCE 1849 (2001), available at http://www.sciencemag.org/cgi/ reprint/294/5548/1849.pdf ("New or niche sites with few links to them may have difficulty competing with highly prominent sites for attention. By favoring more highly linked sites, search tools may increase this effect");
180. see also Abbe Mowshowitz & Akira Kawaguchi, Measuring Search Engine Bias, 41 INFO. PROCESSING & MGMT., 1193 (2005).
181. See, for example, the story of Neil Moncrief, the proprietor of 2bigfeet.com (a seller of large-sized men's shoes), whose site was knocked off the first page of Google's rankings by a sudden algorithm shift in November 2003, right before the Christmas buying season. See BATTELLE, supra note 1, at 156-57. Moncrief attempted to contact Google several times, but "never got a response." Id. at 157.
182. General requirements of fairness and accountability are usually limited to public entities, while private parties are left to act as arbitrarily and unfairly as they wish, as long as they abide by some basic criminal and civil rules of the game. However, even private firms must abide by the consumer protection and fair competition rules devised by entities like the Federal Trade Commission and the U.S. Department of Justice, along with their state-level counterparts.
183. ALBERT O. HIRSCHMAN, Exit and Voice: An Expanding Sphere of Influence, in RIVAL VIEWS OF MARKET SOCIETY AND OTHER RECENT ESSAYS 78-80 (1986) (describing "exit" and "voice" as two classic options of reform or protest).
184. As, for instance, in the essential facilities doctrine in antitrust law. See Robert W. Crandall, The Remedy for the "Bottleneck Monopoly" in Telecom: Isolate It, Share It, or Ignore It?, 72 U. CHI. L. REV. 3 (2005);
185. Philip J. Weiser, Goldwasser, The Telecom Act, and Reflections on Antitrust Remedies, 55 ADMIN. L. REV. 1 (2003);
186. Stanley M. Gorinson, Overview: Essential Facilities And Regulation, 58 ANTITRUST L.J. 871 (1990);
187. Marina Lao, Aspen Skiing and Trinko: Antitrust Intent and "Sacrifice," 73 ANTITRUST L.J. 171 (2005);
188. Brett Frischmann & Spencer Weber Waller, Revitalizing Essential Facilities, 75 ANTITRUST L.J. (forthcoming 2008), (manuscript at 1), available at http://papers.ssrn.com/abstract_id=961609 ("connect[ing] the essential facilities debate in the antitrust field to the broader question of private rights versus open access in other areas of the law, particularly intellectual property law[ and] propost[ing] and apply[ing] an economic theory of infrastructure that comprehensively defines what facilities are essential and must be shared on an open and non-discriminatory basis").
189. See CHARLES MONROE. HAAR & DANIEL WILLIAM. FESSLER, THE WRONG SIDE OF THE TRACKS: A REVOLUTIONARY REDISCOVERY OF THE COMMON LAW TRADITION OF FAIRNESS IN THE STRUGGLE AGAINST INEQUALITY (1986);
190. Herbert Hovenkamp, Regulatory Conflict in the Gilded Age: Federalism and the Railroad Problem, 97 YALE L.J. 1017 (1988).
191. See Jim Rossi, The Common Law "Duty to Serve" and Protection of Consumers in an Age of Competitive Retail Public Utility Restructuring, 51 VAND. L. REV. 1233 (1998).
192. See infra text accompanying notes 307-11. Critics of Google's advocacy of net neutrality have also drawn this connection. See Holman Jenkins, Sort of Evil, WALL. ST. J., July 18, 2007, at All ("[B]y relentlessly pitching broadband suppliers as an 'enemy' industry ripe for regulation, Google hopes to forestall the day when Washington begins to examine Google's own dominance in search and advertising. Here, we can hardly blame the company. Its ability to control which websites and web businesses receive traffic makes it a far likelier candidate for 'public utility' treatment than the diverse and growing array of players who make up the broadband world.").
193. E.g., Grimmelmann, supra note 8, at 23 (discussing the possibility of bringing a fraud claim against a search engine for its result manipulation); see also Gasser, supra note 8, at 219 (describing various legal means and proposed legal means to combat online fraud).
194. See Letter from Heather Hippsley to Gary Ruskin, supra note 123.
195. Letter from Gary Ruskin, Executive Dir., Commercial Alert to Donald Clark, Sec'y, Fed. Trade Comm'n (July 16, 2001), available at http://www.commercialalert.org/PDFs/ ftcresponse.pdf.
196. See 15 U.S.C. § 45(a)(1) (2000).
197. See Goodman, supra note 116, at 108-12.
198. Letter from Gary Ruskin to Donald Clark, supra note 149, at 1.
199. See Goodman, supra note 116, at 111-12.
200. See 2 CHARLES TAYLOR, What's Wrong with Negative Liberty, in PHILOSOPHICAL PAPERS: PHILOSOPHY AND THE HUMAN SCIENCES 211, 224 (1985) (discussing the incoherence of a strictly negative concept of liberty).
201. See JOSEPH RAZ, THE MORALITY OF FREEDOM 370 (1986) (focusing on the adequacy of options as a precondition for autonomy).
202. See Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information and Law, 76 N.Y.U. L. REV. 23, 65-67 (2001).
203. Jennifer A. Chandler, A Right to Reach an Audience: An Approach to Intermediary Bias on the Internet, 35 HOFSTRA L. REV. 1095, 1117 (2007) (arguing that "search engines should not remove websites from their indices unless required by law to do so. The removal of any website and the reason for the removal should be made known within a publicly-accessible list"). Chandler is concerned that the removal of websites from search engine indices effectively amounts to a hiding of content from users. See id. Those in favor of search engine's untrammeled right to control information flows might argue that this information would never have been accessible in the first place were it not for the search engine. However, the search engine still has autonomy-diminishing characteristics if it induces its users into believing it is comprehensive, and actually is biased or partial. See id.
204. BENKLER, supra note 13, at 156.
205. As Bruno Latour notes, "The word black box is used by cybemeticians whenever a piece of machinery or a set of commands is too complex. In its place they draw a little box about which they need to know nothing but its input and output" BRUNO LATOUR, SCIENCE IN ACTION: HOW TO FOLLOW SCIENTISTS AND ENGINEERS THROUGH SOCIETY 2-3 (1987). For a comparison of search engines to other "black boxes,"
206. see Frank Pasquale, Battling Black Boxes, MADISONIAN.NET, Sept 21, 2006, http://madisonian.net/archives/2006/09/ 21/battling-black-boxes/ .
207. See Hansell, supra note 121 ("[The] 'ranking algorithm' - the formulas that decide which Web pages best answer each user's question . . . . [-]is a crucial part of Google's inner sanctum, a department called 'search quality' that the company treats like a state secret"); see also DAVID A. VISE & MARK MALSEED, THE GOOGLE STORY 256 (2005) (describing Google's refusal to "provide more details about how its business really made money").
208. For an illuminating comparison, consider the rise of contemporary media criticism and analysis. Many academics have used insights from sources inside and outside traditional media outlets in order to examine and criticize the ways in which those media entities prioritize and publicize news stories. See, e.g., HERBERT J. GANS, DECIDING WHAT'S NEWS (1980). It is very hard to imagine similar analysis of Google News (or Google generally) if its current trade secrecy protections remain as potent as they are now. Insiders are most likely barred by contract from revealing important trade secrets in the algorithm. The company may even treat the question of whether such contracts exist as a trade secret.
209. Cf. NASSIM NICHOLAS TALEB, THE BLACK SWAN: THE IMPACT OF THE HIGHLY IMPROBABLE (2007) (distinguishing between the types of issues we can try to estimate (known unknowns) and those which are impossible to factor into our evaluation of a situation because we do not know they are relevant (unknown unknowns)). Google has taken some care to respond to this situation in some cases of government censorship; for example, in Germany, they will let users know if there are query results to which the German government forbids them to provide links.
210. See Posting oif Andrew McLaughlin, Google Senior Policy Counsel, to The Official Google Blog, http://googleblog.blogspot.com/2006/01/ google-in-china.html (Jan. 27, 2006, 11:58 AM).
211. See Pasquale, supra note 94, at 130 (suggesting that general purpose search is a natural monopoly or oligopoly).
212. See infra Part III.A.
213. See infra text accompanying notes 187-200.
214. See, e.g., Neil Gandal, The Dynamics of Competition in the Internet Search Engine Market, 19 INT'L J. INDUS. ORG. 1103, 1116 (2001); Gasser, supra note 8, at 224 (noting the "power of new technologies to reallocate the market power of search engine operators"); Goldman, supra note 11, at 196-98; cf. Grimmelmann, supra note 8, at 44-46 (describing the strong market forces that combat attempts by providers to sabotage one another's searches).
215. Cf. Gandal, supra note 166, at 1116; Gasser, supra note 8, at 224; Grimmelmann, supra note 8, at 44-46.
216. See, e.g., Goldman, supra note 11, at 196-98.
217. See id.
218. See id.
219. See VISE & MALSEED, supra note 160, at 87-88, 114-16 (discussing Google's overtaking of Overture and attributing Google's success to its commitment "to make it clear they wouldn't bias the search results" in the course of selling ads).
220. In a 1988 book review essay, Professor Glen O. Robinson referred to AT&T and the monopolistic telecommunications industry as one that would be "vulnerable at least to a kind of Schumpeterian 'creative destruction.'" Glen O. Robinson, The Titanic Remembered: AT&T and the Changing World of Telecommunications, 5 YALE J. ON REG. 517, 544 (1988)
221. (quoting JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 81-86 (3d ed. 1950).
222. VISE & MALSEED, supra note 160, at 90 (quoting Google cofounder Larry Page).
223. See Danny Sullivan, comScore Media Metrix Search Engine Ratings (Aug. 21, 2006), http://searchenginewatch.com/showPage.html?page=2156431 (offering "qSearch data[,] gathered by monitoring the web activities of 1.5 million English-speakers worldwide").
224. Empirical data on this question is incomplete and inconclusive. The few existing works in this vein reach different conclusions using relatively old data. Compare Gandal, supra note 166, at 1105 (finding entry barriers are low in the Internet search engine market), with Tair-Rong Sheu & Kathleen Carley, Monopoly Power on the Web - A Preliminary Investigation of Search Engines 17-18 (Oct 27, 2001) (unpublished paper presented at the 29th Telecommunications Policy Research Conference), http://arxiv.org/ftp/cs/papers/0109/0109054.pdf (finding that barriers to entry in the search engine market seem high).
225. A natural monopoly is usually defined as a market in which the average cost of a good declines as volume of production increases throughout the relevant range of demand. See SANFORD V. BERG & JOHN TSCHIRHART, NATURAL MONOPOLY REGULATION: PRINCIPLES AND PRACTICE 21-24 (1988);
226. JOSEPH E. STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 191 (3d ed. 1986). While a natural monopoly often leads to the survival of only one firm, it does not require that the relevant market be an actual monopoly at any given moment.
227. See Gasser, supra note 8, at 232-33.
228. See id.
229. See 35 U.S.C. § 154 (2000 & Supp. V 2005).
230. For example, if 100 people search for "pork rinds" on a search engine on a given day and all pick the third-ranked result, the search algorithm may adjust itself and put the third-ranked result as the first result the next day. The most-used search engine will have more data to tweak its algorithms than its less-used rivals. Until search becomes more personalized, we should expect the most-used search engine's algorithms to better reflect mass taste, and in turn to draw in more of the data that permits it to do so. See also VISE & MALSEED, supra note 160, at 215.
231. See Elkin-Koren, supra note 83, at 194-95; Elkin-Koren, supra note 87, at 396-98.
232. See Complaint, McGraw-Hill Cos., Inc. v. Google Inc., No. 05-CV-8881 (S.D.N.Y. filed Oct. 19, 2005); Complaint, Author's Guild v. Google Inc., No. 05-CV-8136 (S.D.N.Y. filed Sept. 20, 2005). See generally Travis, supra note 107; Siva Vaidhyanadian, The Googlization of Everything and the Future of Copyright, 40 U.C. DAVIS L. REV. 1207 (2007);
233. Emily Anne Proskine, Note, Google's Technicolor Dreamcoat: A Copyright Analysis of the Google Book Search Library Project, 21 BERKELEY TECH. L.J. 213 (2006).
234. On this issue, too, empirical research is incomplete and offers conflicting conclusions. Compare Rahul Telang et al., An Empirical Analysis of Internet Search Engine Choice 25 (Darden Graduate Sch. of Bus. Admin., Univ. of Va., Working Paper No. 03-05, 2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=412782 (finding the effect of loyalty is small when users use engines primarily for search purposes but large when they use personalized features), with Sheu & Carky, supra note 175, at 18 (concluding that search engines have a high switching cost).
235. See VISE & MALSEED, supra note 160, at 204-19. If innovation in general-purpose search technology has plateaued (or has become the property of Google via its trade secret protections), we should not expect another company to displace Google in the same way it supplanted Yahoo.
236. See, e.g., Randall Stress, The Human Touch that May Loosen Google's Grip, N.Y. TIMES, June 24, 2007, § 3, at 3 (describing how the search engine Mahalo is developing new and sometimes costly competitive strategies). Though Stress speculates that many new entrants will try to build niches in the search market, see id., our discussion demonstrates the difficulties any entrant will face if it tries to compete with Google directly for the lion's share of searches.
237. with personalized search, a search engine can use methods such as artificial intelligence to gradually "learn" what a user most likely wants. For example, if a user habitually searches for recipes, the search engine may weight food sites more heavily than other sites when confronted with an ambiguous term (such as "cake," which could refer either to a confection or to the rock band). A "learning" search engine would save the user from having to type in longer terms like "cake food" or "cake cooking." See James Pitkow et al., Personalized Search, 45 COMM. ACM 50, 52 (describing how a personalized search might insert "car" to augment a user's search for "contour" where the user had viewed a series of car-related sites) (2002);
238. Elinor Mills, Google Automates Personalized Search, CNET NEWS.COM, June 28, 2005, http://news.com.com/ Google+automates¶ersonalized§earch/2100-1032_3-5766899.html) (illustrating personalized search capabilities by example - automatically distinguishing the fish "bass" from the instrument based on the user's search history). See generally BATTELLE, supra note 1, at 258-59 (contrasting Google and Yahoo!'s approaches to personalized search).
239. See George A. Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q.J. ECON. 488 (1970) (discussing economic models involving "trust" and uncertain quality);
240. Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941, 947, 965-66 (1963) (discussing behaviors influenced by information inequality in a medical context);
241. Michael R. Darby & Edi Karni, Free Competition and the Optimal Amount of Fraud, 16 J.L. & ECON. 67, 68-72 (1973) (exploring credence goods where quality cannot be evaluated through normal use but only at additional cost).
242. See Letter from Heather Hippsley to Gary Ruskin, supra note 123.
243. Alejandro M. Diaz, Through the Google Goggles: Sociopolitical Bias in Search Engine Design 147 (May 23, 2005) (unpublished undergraduate honors thesis, Stanford University) (on file with authors) ("[T]he complexity and opacity of search engine technology makes it almost impossible for users to notice what is 'missing' from their search results.").
244. Elkin-Koren, supra note 83, at 192; Grimmelmann, supra note 8, at 22-23; Introna & Nissenbaum, supra note 83 at 177.
245. "Many of the lawsuits Google is facing carry little weight. Yet it has a vested interest in fighting all of them, even those of questionable merit and seeing that they are resolved quickly. In part, this is because any lawsuit that reaches . . . discovery, the pretrial fact-finding phase, poses the danger of revealing too much about Google's proprietary technology. Google also has an interest in establishing a solid body of legal interpretation in its favor." Katie Hafner, We're Google. So Sue Us., N.Y. TIMES, Oct 23, 2006, at C1, available at http://www.nytimes.com/2006/10/23/ technology/23google.html?pagewanted=print.
246. See generally Andrei Broder, A Taxonomy of Web Search, 36 ACM SIGIR F., Fall 2002, available at http://www.acm.org/sigs/sigir/ forum/F2002/broder.pdf (contrasting navigational searches with informational searches and transactional searches).
247. Id.
248. Introna & Nissenbaum, supra note 83, at 176-77; see also Broder, supra note 192, at 4 ("[O]n the web . . . many informational queries are extremely wide . . . while some are narrow.").
249. See Goldman, supra note 108, at 521-28.
250. For a similar point, see Benkler, supra note 17, and Benkler, supra note 156, at 69-70.
251. C. E. Baker made a similar point about traditional media. See C. EDWIN BAKER, MEDIA, MARKETS, AND DEMOCRACY 12-13, 87-95 (2002).
252. Screenshot of "Net Neutrality" Search (Oct. 23, 2006) (on file with author); see also Screenshot of "Net Neutrality" Search (Apr. 15, 2008) (on file with author).
253. A Guide to Net Neutrality for Google Users, supra note 137 ("In our view, the broadband carriers should not be permitted to use their market power to discriminate against competing applications or content.").
254. See BAKER, supra note 197, at 85-87.
255. C. Edwin Baker, Giving The Audience What It Wants, 58 OHIO ST. L.J. 311, 350-66 (1997).
256. For a similar argument see Introna & Nissenbaum, supra note 83, at 177-78.
257. See Goldman, supra note 11, at 198-99.
258. See generally LANGVILLE & MEYER, supra note 132, at 142 (predicting that "there will be even more personalization for web users in the future"); Mills, supra note 186; Pitkow et al., supra note 186;.
259. of course, the information asymmetries that result from personalized search create new types of problems. See Posting of Frank Pasquale to Concurring Opinions, Could Personalized Search Ruin Your Life?, http://www.concurringopinions.com/archives/2008/02/ personalized_se.html ("Imagine you're applying for a job and want to be sure to give the right impression. A diligent self-googler, you think you know everything there is out there on the web about you. Nothing sticks out in the first 15 or so pages of results. But there is someone with a name identical to yours who's got a terrible reputation . . . . [W]hen HR does its background check on you, that's the first result it sees. You're never given a reason for being turned down for the job - just a brief form letter. [You've never seen these results - but the corporate HR department's website is 'personalized' to display all the worst material connected to a given name.] "This scenario may result from what is otherwise one of the most promising trends on the web - personalized search. As you use a search engine more and more, it tends to translate your behavior into a database of usual intentions. That can make searches a lot more efficient for you as a searcher - but creates lots of uncertainty once you are the searched. [Personalized search means that a searcher may never know what image(s) of herself the search engine presents to the rest of the world.].").
260. See Goldman, supra note 11, at 198.
261. See, e.g., ERIK LARSON, THE NAKED CONSUMER: HOW OUR PRIVATE LIVES BECOME PUBLIC COMMODITIES (1992);
262. DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 17-21 (2004);
263. Tal Z. Zarsky, "Mine Your Own Business!": Making the Case for the Implications of the Data Mining of Personal Information in the Forum of Public Opinion, 5 YALE J.L. & TECH. 1, 4, 6-18 (2003).
264. Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *6-12 (W.D. Okla. May 27, 2003).
265. Miami Herald Publ'g Co. v. Tomillo, 418 U.S. 241 (1974) (forcing newspapers to print candidates' replies to editorials is an impermissible burden on editorial control and judgment).
266. Langdon, 474 F. Supp. 2d at 629-30.
267. Search King, 2003 U.S. Dist. LEXIS 27193, at *11-12 (quoting Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc, 175 F.3d 848, 852 (10th Cir. 1999)).
268. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
269. Jefferson County., 175 F.3d at 852.
270. Search King, 2003 U.S. Dist. LEXIS 27193, at *11-13.
271. See Browne v. Avvo, Inc., 525 F. Supp. 2d 1249 (W.D. Wash. 2007) (holding that lawyer rating and ranking website was constitutionally protected opinion because it "contains numerous reminders that the . . . rating system is subjective. The ratings are described as an 'assessment' or 'judgment,' two words that imply some sort of evaluative process."),.
272. The court, somewhat ambiguously, refers to "PageRanks," which seems to stand for the specific results produced by Google's algorithm - "PageRank." Search King, 2003 U.S. Dist. LEXIS 27193, at *11-12. This ambiguity is itself disturbing, given the extant hostility to the idea of software as speech and the unresolved issues on whether an automated system can even count as a speaker.
273. See Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del 2007).
274. The Langdon court simply cites several compelled speech precedents and adopts Google's argument that the sought after "relief would compel it to speak in a manner deemed appropriate by Plaintiff and would prevent Google from speaking in ways that Plaintiff dislikes." Langdon, 474 F. Supp. 2d at 629.
275. For a description of search engines as media outlets or editors of the indexed content see Goldman, supra note 11, at 192 ("[S]earch engines make editorial judgments just like any other media company.").
276. See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 89-92 (1982);
277. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373, 1409 (2000);
278. Robert Post, Encryption Source Code and the First Amendment, 15 BERKLEY TECH. L.J. 713, 714 (2000) [hereinafter Post Encryption];
279. Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1250 (1995) [hereinafter Post, Recuperating];
280. Fredrick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1769 (2004).
281. For a critique of the distinction, see Pierre J. Schlag, An Attack on Categorical Approaches to Freedom of Speech, 30 UCLA L. REV. 671 (1983).
282. See Schauer, supra note 220, at 1789.
283. See id.
284. Chandler, supra note 157, at 1126-29.
285. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 655 (1994); Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 12-13 (1986); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 86 (1980).
286. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006); Turner Broad. Sys., 512 U.S. at 655; Pruneyard Shopping Ctr., 447 U.S. at 86.
287. Turner Broad. Sys., 512 U.S. at 657 (1994).
288. 521 U.S. 844, 870 (1997).
289. Wu, supra note 56, at 1165.
290. See Frank Pasquale, Asterisk Revisited: Debating a Right of Reply on Search Results, 3 J. BUS. & TECH. L. 61, 72 (2008) ("Search engines' self-characterization as merely the 'pipes' or 'infrastructure' arranging information casts doubt on the possibility that they should be protected to the extent that traditional content providers are protected. The relevant precedent for Langdon is Turner Broadcasting Systems, Inc. v. FCC, not Tornillo. . . . In Langdon, the real reason to dismiss the case was the lack of any such must-carry requirement in North Carolina or federal law - not the unconstitutionality of any hypothetical requirement.").
291. See, e.g., Richard Siklos, A Struggle over Dominance and Definition, N.Y. TIMES, Nov. 12, 2006, § 3, at 5. James Eun, Vice President for Content Partnership of Google, was quoted as insisting that Google is not a content producer, but rather, a communications company or technical platform - akin more to an ISP or cable carrier than to the content producers who express themselves in the media that travels through these "pipes." Id. ("[W]hen I spoke to David Eun, Google's vice president for content partnerships, he took umbrage with the media designation. He noted that Google did not create or own content - in his mind, part of the definition of a media company. Rather, he said, Google is a technology company: 'I would say we're a conduit connecting our users with content and advertisers.'").
292. 17 U.S.C. § 512(d) (2000). In Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006), an author brought a copyright infringement action against the operator of an Internet search engine, seeking statutory damages and injunctive relief and alleging that the operator violated his exclusive rights to reproduce and distribute copies of his works by allowing Internet users to access copies stored in the search engine's online repository. Id. The court held that the search engine fell within protection of safe harbor provision of the DMCA. Id. But see Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004) (noting that Amazon did not meet the requirements to be considered a "service provider," as defined by Section 512(c)).
293. 47 U.S.C. § 230(c)(1) (2000); Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006) (noting that an Internet search engine operator was immune, under the Communications Decency Act from any defamation, invasion of privacy, or negligence liability arising from its archiving of, caching of, or providing access to allegedly defamatory, unauthorized, or threatening usenet postings, and that the operator could not be held liable as a publisher or speaker of third-party content under the Communications Act of 1934 § 230(c)&(e), as codified in 47 U.S.C.A § 230(c)&(e)). But see 800-JR Cigar, Inc. v. GoTo.com, Inc., 437 F. Supp. 2d 273 (D.N.J. 2006) (holding that a pay-for-priority Internet search engine that used a cigar retailer's famous marks as search terms and sold search result priority to direct competitors of the cigar retailer was not immune under the Communications Decency Act from the retailer's claims of fraud and abuse arising from its pay-for-priority advertising business, rather than from the actions of third parties). For critical commentary, see Michael L. Rustad and Thomas H. Koenig, Rebooting Cybertort Law, 80 WASH. L. REV. 335, 371 (2005) ("Too much tort liability propagates widespread online censorship, which would greatly impede freedom of expression on the Internet. An activist judiciary, however, has radically expanded § 230 by conferring immunity on distributors. Section 230(c)(1) has been interpreted to preclude all tort lawsuits against ISPs, websites, and search engines. Courts have extended the meaning of 'interactive computer services,' haphazardly lumping together web hosts, websites, search engines, and content creators into this amorphous category.").
294. Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *9 (W.D. Okla. May 27, 2003) ("Two questions remain. First, are PageRanks constitutionally protected opinions? Second, if PageRanks fall within the scope of protection afforded by the First Amendment, is the publication of PageRanks per se lawful under Oklahoma law, thereby precluding tort liability premised on the intentional and even malicious manipulation of PageRanks by Google? The Court answers both questions in the affirmative.").
295. See J.L. Austin, Lecture Delivered at Harvard University (1955), in HOW TO DO THINGS WITH WORDS 1, 4-7 (J.O. Urmson & Marina Sbisà eds., 2d ed. 1975).
296. See BOYLE, supra note 135, at 91-96; Kent Greenawalt, Criminal Coercion and Freedom of Speech, 78 NW. L. REV. 1081, 1089 (1983); Post, Encryption, supra note 220, at 715; Post, Recuperating, supra note 220, at 1252;
297. Fredrick Schauer, The Aim and the Target in Free Speech Methodology, 83 NW. L. REV. 562 (1989); Schauer, supra note 220, at 1777-84.
298. Schauer, supra note 220, at 1784. We do not argue that speech with a substantial performative element is never protected by the First Amendment nor do we argue that there is always a bright line distinction between expressive and performative speech. Our argument is that a low degree of expressiveness is a common characteristic of speech excluded from First Amendment coverage and that the search engines' rankings discussed in the text are even less expressive than many of the categories of such excluded speech.
299. See Post, Recuperating, supra note 220, at 1254; see, e.g., Brocklesby v. United States, 767 F.2d 1288, 1294-95 (9th Cir. 1985); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-77 (2d Cir. 1983); Aetna Cas. & Sur. Co. v. Jeppesen & Co., 642 F.2d 339, 342-43 (9th Cir. 1981). It is possible to distinguish the navigational chart from search results by claiming that the former is subject to objective factual evaluation and refutation while the latter is completely subjective. As we explain below, however, the subjective character of search results does not necessarily make them speech recognized by the First Amendment. See infra text accompanying notes 260-262.
300. Post, Encryption, supra note 220, at 716; Post Recuperating, supra note 220, at 1255. As Schauer notes, "Liability for misleading instructions, maps, and formulas, for example, is generally (and silently) understood not to raise First Amendment issues." Schauer, supra note 220, at 1802; see also Post Recuperating, supra note 220, at 1254 ("Navigation charts for airplanes, for instance, are clearly media in which speakers successfully communicate particularized messages. And yet when inaccurate charts cause accidents, courts do not conceptualize suits against the charts' authors as raising First Amendment questions. They instead regard the charts as '"products" for the purpose of products liability law.'" (quoting Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1035 (9th Cir. 1991))). Search engines may be thought to provide a "map" of the web, a guide to the sights that are most and least relevant to a searcher's query. See Pasquale, supra note 93. Search engines' indexing function also bring to mind the function of a phone book. See Frank Pasquale, Is Google Like a Newpaper? Cable Network? Phonebook?, CONCURRING OPINIONS, Feb. 27, 2007, http://www. concurringopinions.com/archives/ 2007/02/are_big_search.html (arguing that "the First Amendment should not prevent some future legislature from requiring search engines to disclose if they've deliberately deleted a website from their index."). It is hard to conceive of a phone book as embodying any constitutionally protected message.
301. We do not make here a sweeping statement about the applicability of the First Amendment to Internet information location tools in general or to speech embodied in or generated by computer code. Rather, we make the narrower claim that the First Amendment does not cover the kind of search engine rankings at issue in Search King and Langdon - rankings produced by a comprehensive and automated search engine whose results are presented and experienced as "objective." There are many different types of information location tools, and the First Amendment has varying levels of applicability to each. See Pasquale, supra note 229, at 75-76 ("When compared to something like Mahalo, or alternative search engines or directories driven by human editors, Google is much closer to a data provider than, say, a newspaper. The latter actually expresses a point of view on what the news is; the former merely aggregates information. This difference has consequences for the legal treatment of search results.").
302. Schauer, supra note 220, at 1801 (citing Kent Greenawalt, Speech and Crime, 1980 AM. B. FOUND. RES. J. 645, 676, 742-56
303. [hereinafter Greenawalt, Speech and Crime]);
304. see also Kent Greenawalt, Criminal Coercion and Freedom of Speech, 78 NW. U. L. REV. 1081, 1089-90 (1983)
305. [hereinafter Greenawalt, Coercion].
306. Indeed, as a preliminary matter, if criminalization of some speech is not permitted by the First Amendment under certain circumstances, a fortiori, the regulation of speech by civil means may not be covered under similar circumstances.
307. Cf. Greenawalt, Speech and Crime, supra note 240, at 676; Greenawalt, Coercion, supra note 240, at 1103-04, Schauer, supra note 220, at 1801.
308. See Schauer, supra note 220, at 1784-87.
309. See generally C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 92-122 (1989) (arguing that society should protect individual freedom of speech in order to augment progressive democratic change);
310. Richard H. Fallon, Jr., Two Senses of Autonomy, 46 STAN. L. REV. 875, 879-93 (1994) (describing autonomy theories as premised upon a conception of either negative liberty or positive liberty);
311. Joseph Raz, Free Expression and Personal Identification, 11 OXFORD J. LEGAL STUD. 303, 306 (1991) (asserting that "freedom of expression is a public good").
312. See generally ALEXANDER MEIKLEJOHN, The Rulers and the Ruled, in MEIKLEJOHN, supra note 24, at 8, 8-28; ALEXANDER MEIKLEJOHN, Clear and Present Danger, in MEIKLEJOHN, supra note 24, at 29, 29-50; ALEXANDER MEIKLEJOHN, American Individualism and the Constitution, in MEIKLEJOHN, supra note 24, at 51, 51-77; ALEXANDER MEIKLEJOHN, Reflections, in MEIKLEJOHN, supra note 24, at 78, 78-89; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 241-52 (1993) (arguing that the purpose of the First Amendment is to promote diversity of opinion and discussion because a deliberative democracy is a "creative and productive force");
313. ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 119-78 (1995) (discussing why the First Amendment protects public discourse and what types of speech are protected simply because they are part of the public discourse). Indeed, given the trend of political "google-bpmbing," regulation of manipulation may emerge as a crucial adjunct to existing methods of assuring disclosure of the origins of political advocacy. See Pasquale, supra note 138.
314. The instrumental value of and application of the First Amendment to search engines are discussed later. See infra notes 265-67 and accompanying text.
315. See William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1, 1 (1995) (arguing that "speech is valuable because it leads to the discovery of truth").
316. See supra notes 206-11 and accompanying text.
317. See supra notes 206-11 and accompanying text.
318. The court's discussion does not distinguish between search results and user ads that appear on the search engine. See Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-33 (D. Del. 2007). This discussion is limited to search results.
319. See id. at 629-30 (citing Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974); Sinn v. Daily Nebraskan, 829 F.2d 662 (8th Cir. 1987); Assocs. & Aldrich Co. v. Times Mirror Co., 440 F.2d 133 (9th Cir. 1971)).
320. See Siklos, supra note 230 (reporting Google executive Eun's characterization of his company).
321. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 20-21 (1986).
322. See Wooley v. Maynard, 430 U.S. 705, 714-17 (1977).
323. See Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 559 (1995).
324. See supra notes 251-53 and accompanying text.
325. See Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *11-12 (W.D. Okla. May 27, 2003).
326. Id.
327. See id. at *9-11.
328. See id. The Court's emphasis on the subjectivity of search engine rankings originated mainly from the doctrinal context. The Milkovich rule requires that the relevant opinion is not subject to factual proof or refutation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 ("[A] statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present where a media defendant is involved.").
329. One may distinguish between dialogical and other forms of expressions. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 12 (2000) (asserting that one does not characterize people engaged in commercial speech as "inviting reciprocal dialogue or discussion").
330. "Jefferson County is analogous to the case at bar. Like the review in Jefferson County, the Court finds that PageRanks relate to matters of public concern . . . . In addition, the Court finds that PageRanks do not contain provably false connotations. PageRanks are opinions - opinions of the significance of particular web sites as they correspond to a search query. Other search engines express different opinions, as each search engine's method of determining relative significance is unique." Search King, 2003 U.S. Dist LEXIS 27193, at *11-12.
331. See Jefferson County Sch. Dist No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 850 (10th Cir. 1999).
332. See Search King, 2003 U.S. Dist. LEXIS 27193, at *9-11.
333. Posting of Jack Balkin to Balkinization, http://balkin.blogspot.com/2007/ 04/two-ideas-for-access-to-knowledge.html (Apr. 30, 2007, 21:59 EST). "Freedom of speech . . . depends on an infrastructure of free expression." Id. This infrastructure "includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools." Id.
334. See Post, Encryption, supra note 220, at 717-18, 721-22.
335. State governments have already tried parallel strategies using ISPs as agents for content-based filtering schemes that are legislatively mandated. See Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 611 (E.D. Pa. 2004) (striking down as unconstitutional Pennsylvania legislation that mandated ISP filtering of websites blacklisted by state authorities); Complaint at 2-6, King's English, Inc. v. Shurtleff, No. 2:05CV00485 TS (D. UTAH, June 9, 2005), available at http://www.cdt.org/ SPEECH/utahwebblock/20050609hb 260complaint.pdf (challenging a UTAH statute imposing an obligation on ISPs to block material); Stipulated Order at 1-3, King's English, Inc. v. Shurtleff, No. 2:05CV00485 DB (D. Utah Aug. 25, 2006), available at http://cdt.org/SPEECH/ 20060829utah.pdf (granting a stipulated preliminary injunction against the enforcement of the contested Utah statute). See generally Seth F. Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link, 155 U. PA. L. REV. 11 (2006) (arguing that the government's efforts to regulate the Internet via private proxy intermediaries endanger free speech).
336. See supra notes 246-55 and accompanying text.
337. See supra note 247 and accompanying text.
338. See, e.g., Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *11-12 (W.D. Okla. May 27, 2003).
339. Schauer, supra note 220, at 1796.
340. See Search King, 2003 U.S. Dist. LEXIS 27193, at *11-12.
341. See Schauer, supra note 220, at 1796.
342. See Grimmelmann, supra note 8, at 48 (stating that search engines "closely guard their ranking and indexing algorithms and routinely invoke the need to protect this secrecy in litigation"). The most notable assertion of this need for secrecy occurred last summer, when Google refused to disclose to the government a great deal of information. Google refused to disclose not only users' individual search records but also aggregate data on various topics such as Google's total number of searches. The parties eventually reached a settlement that greatly limited the scope of the government's discovery requests, but Google clearly drew a line in the sand. Google would vigorously resist even the Department of Justice in order to avoid disclosure of information that Google considered critical to its business model. See Gonzales v. Google, Inc., 234 F.R.D. 674, 686 (N.D. Cal. 2006) (order granting in part and denying in part the plaintiff's motion to compel compliance with subpoena duces tecum) ("As trade secret or confidential business information, Google's production of a list of URLs to the Government shall be protected by protective order.").
343. See Grimmelmann, supra note 8, at 13-14.
344. See generally id. (describing "black hat" and "white hat" SEO tactics).
345. See Gasser, supra note 8, at 231-34.
346. See generally TARLETON GILLESPIE, WIRED SHUT: COPYRIGHT AND THE SHAPE OF DIGITAL CULTURE 9 (2007) (arguing that digital copyright laws should be understood in a broader context as "elements of an increasingly cohesive regulatory strategy, sometimes called the 'trusted system'").
347. Dan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 HARV. J.L. & TECH. 41, 54-70 (2001). Responding to DMCA anti-circumvention provisions, Burk & Cohen worried that legitimate fair uses of copyrighted work might be impossible if a copyrightholder used DRM to prevent unauthorized access to the work. They proposed that some public entity hold a "key" to the DRM on copyrighted works in escrow so that the public entity could decide whether to permit a user to "break" the DRM and thereby gain access to the work. Id.
348. David S. Levine, Secrecy and Unaccountabitity: Trade Secrets in our Public Infrastructure, 59 FLA. L. REV. 135, 157-62 (2007).
349. Id.; see also Edelman v. N2H2, Inc., 263 F. Supp. 2d 137, 138-39 (D. Mass. 2003) (dismissing as premature an action by a computer researcher seeking immunity from liability under the First Amendment for reverse engineering and publishing lists of websites blocked by commercial filtering software).
350. See, e.g., supra note 97 and accompanying text.
351. See, e.g., Ellen P. Goodman, Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets, 19 BERKELEY TECH. L.J. 1389 (2004) ("[S]ubsidies for a robust public service media are the proper channel for media policy in the digital era from both a First Amendment and a practical perspective."); FISS, supra note 49, at 56 ("The principal instrument of reform in the allocative sphere was Congress's decision in the mid-1960s, following the recommendation of the Carnegie Commission, to establish and fund the Corporation for Public Broadcasting.").
352. See supra Part II.
353. See, e.g., JEAN-NOËL JEANNENEY, GOOGLE AND THE MYTH OF UNIVERSAL KNOWLEDGE 82 (Teresa Lavender Fagan trans., 2007) (calling for a European search engine that will "have the power to be on equal terms with Google Book Search (and with other search engines that may appear, in the U.S. or elsewhere), and to negotiate, if necessary, our presence among them in a way that responds to criteria favorable to the influence of Europe, today and for the long term.").
354. For example, Quaere, Europe's largest initiative to date to develop a search engine to compete with Google, has failed so far. The Quaere project would include significant public funding but has been sidetracked indefinitely by Germany's quitting the project. See Kevin J. O'Brien & Thomas Crampton, Berlin Quits Search Engine Project, INT'L HERALD TRIB., Jan. 3, 2007, at 1 ("'When you look at the offerings of search engines out there on the market already, one has to question the wisdom of spending a lot of money to construct yet another search machine and try to compete with Google,' said Ulrich Trabert, a software analyst in Frankfurt at Bankhaus Metzler, a private bank.").
355. See Thomas Claburn, Law Professor Predicts Wikipedia's Demise, INFO. WK., Dec. 5, 2006, http://www. informationweek.com/internet/showArticle.jhtml?articleID=196601 766. One of the few search engine-like information aggregation sites that currently practices this type of transparency is Wikipedia. Precisely on this account, Eric Goldman has predicted its eventual demise. Id. (paraphrasing Goldman, "Wikipedia will fail in four years, crushed under the weight of an automated assault by marketers and others seeking online traffic"). According to Goldman, "Wikipedia will enter a death spiral where the rate of junkiness will increase rapidly until the site becomes a wasteland . . . . Alternatively, to prevent this death spiral, Wikipedia will change its core open-access architecture, increasing the database's vitality by changing its mission somewhat." Id. Perhaps one way to avoid these possibilities would be for an open source search engine to make public both its ranking algorithms and the penalties that would apply to anyone who manipulated the algorithms. Thanks to Henry Lien of the Stanford Center for Internet and Society for this point.
356. See supra notes 157-60, 274-78, and accompanying text.
357. For example, Search King requested that the federal District Court for the Western District of Oklahoma force Google to turn over its source code for discovery purposes. See Motion for Preliminary Injunction at 1, Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193 (W.D. Okla. Oct 17, 2002). As James Grimmelman notes, "SearchKing [sic] was reaching especially far in asking for this disclosure as part of the injunction. The more typical procedure would be to let SearchKing's [sic] lawyers see the source code as part of the pre-trial discovery of evidence, under a suitable protective order which would prevent further disclosure." James Grimmelman, Google Replies to SearchKing Lawsuit, YALE LAWMEME, Jan. 9, 2006.
358. The Foreign Intelligence Surveillance Court (FISC or FISA Court) is a secret court that consists of eleven district court judges, at least three of whom must live within twenty miles of the District of Columbia. See 50 U.S.C. § 1803(a) (Supp. IV 2004). The Court has jurisdiction to hear petitions from the U.S. Attorney General seeking audiorization to conduct electronic surveillance and physical searches for foreign intelligence purposes. Id. The Court reviews the petitions, which are presented by the Department of Justice in secret, ex parte proceedings. See Daniel J. Malooly, Physical Searches Under FISA: A Constitutional Analysis, 35 AM. CRIM. L. REV. 411, 413-14 (1998). If the Court denies a petition for surveillance, the Attorney General may appeal the decision to the Foreign Intelligence Court of Review (Court of Review). See 50 U.S.C. § 1803(b) (2000). This appellate court is composed of three judges, designated by the Chief Justice of the United States from the district courts and circuit courts, who have jurisdiction to review the denial of any petition made under FISA. See id. All FISA applications, procedural records, and decisions are kept under lock and key in accordance with measures established by the Chief Justice, Attorney General, and Director of National Intelligence. See 50 U.S.C. § 1803(c) (Supp. IV 2004). For a discussion of the background and constitutional implications of the Foreign Intelligence Surveillance Act see generally Malooly, supra.
359. Cf. 50 U.S.C. § 1803(a).
360. The Bush Administration's National Security Agency has been accused of circumventing the FISC recently. See, e.g., Jason Leopold, Bush-NSA Spying in Defiance of Congress, Court, TRUTHOUT, Dec. 29, 2005, http://www.truthout.org/docs_2005/1229051.shtml.
361. See, e.g., Burk & Cohen, supra note 279.
362. Id. at 63.
363. Id. at 55.
364. Id. at 63.
365. However, creative dispute resolution techniques can lighten this burden. For example, Google is now cooperating in the "Stop Badware" initiative with Harvard's Berkman Center, which identifies websites that infect computers with bad code. When a website identified as containing badware complains about being blacklisted, informal means can help it regain its prior, unmarked status. See Jonathan Zittrain, Protecting the Internet Without Wrecking It, BOSTON REVIEW (Mar./Apr. 2008), http://bostonreview.net/BR33.2/zittrain.php ("Even search engines can help create a community process that has impact. In 2006, in cooperation with the Harvard and Oxford StopBadware initiative, Google began automatically identifying Web sites that had malicious code hidden in them, ready to infect browsers. Some of these sites were set up for the purpose of spreading viruses, but many more were otherwise-legitimate Web sites that had been hacked. For example, visitors to chuckroast.com can browse fleece jackets and other offerings and place and pay for orders. However, Google found that hackers had subtly changed the chuckroast.com code: the basic functionalities were untouched, but code injected on the home page would infect many visitors' browsers. Google tagged the problem, and appended to the Google search result: 'Warning: This site may harm your computer.' Those who clicked on the results link anyway would get an additional warning from Google and the suggestion to visit StopBadware or pick another page. "The site's traffic plummeted, and the owner (along with the thousands of others whose sites were listed) was understandably anxious to fix it. But cleaning a hacked site takes more than an amateur Web designer. Requests for specialist review inundated StopBadware researchers. Until StopBadware could check each site and verify it had been cleaned of bad code, the warning pages stayed up. Prior to the Google/StopBadware project, no one took responsibility for this kind of security. Ad hoc alerts to the hacked sites' webmasters - and their ISPs - garnered little reaction. The sites were fulfilling their intended purposes even as they were spreading viruses to visitors. With Google/ StopBadware, Web site owners have experienced a major shift in incentives for keeping their sites clean.").
366. See Gonzales v. Google, Inc., 234 F.R.D. 674 (N.D. Cal. 2006); supra note 267.
367. See Grimmelmann, supra note 8, at 11-14.
368. Posting of Chris Langdon to Concurring Opinions, http://www.concurring opinioro.com/archives/2007/02/are_big_search.html (Mar. 1, 2007, 11:58 AM). Langdon asserts that the type of malfeasance that Mike Nifong engaged in during the Duke Lacrosse case is common in North Carolina. See id. Langdon also was rebuffed when he attempted to buy ads critical of the Chinese government on search engines. See Posting of Chris Langdon to Concurring Opinions, http://www.concurringopinions.com/archives/ 2007/02/are_big_search.html (Mar. 1, 2007, 11:49 AM).
369. See Elkin-Koren, supra note 83, at 192-95; Elkin-Koren, supra note 87, at 396.
370. Introna & Nissenbaum, supra note 83, at 181.
371. See Kinderstart.com LLC v. Google, Inc., No. C 06-2057 JF (RS), 2006 U.S. Dist. LEXIS 82481, at *10-21 (N.D. Cal. July 13, 2006) (order granting motion to dismiss with leave to amend) (finding unpersuasive plaintiff's arguments that both the First Amendment and the California Constitution created affirmative duties of the defendant search engine as a de facto public forum); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 627 (D. Del. 2007) (rejecting a free speech claim under the First Amendment and Delaware Constitution).
372. See, e.g., Langdon, 474 F. Supp. 2d at 623-28; Kinderstart, 2006 U.S. Dist. LEXIS 82481, at *33-45; Search King, Inc. v. Google Tech., Inc., No. Civ-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *5-6 (W.D. Okla. May 27, 2003).
373. See Kinderstart, 2006 U.S. Dist. LEXIS 82481, at *12-14, *17-19.
374. See, e.g., Marsh v. Alabama, 326 U.S. 501, 508-10 (1946) (requiring a company-owned town to afford basic free speech rights to inhabitants); Intel Corp. v. Hamidi, 71 P.3d 296, 311 (Cal. 2003).
375. See generally HAAR & FESSLER, supra note 144, at 109-40; Rossi, supra note 145, at 1242-50; Hovenkamp, supra note 144; Sallyanne Payton, The Duty of a Public Utility to Serve in the Presence of New Competition, in APPLICATIONS OF ECONOMIC PRINCIPLES IN PUBLIC UTILITY INDUSTRIES 121, 139-44 (Werner Sichel & Thomas G. Gies eds., 1981).
376. Hovenkamp, supra note 144, at 1044-54; Joseph D. Kearney & Thomas W. Merrill, The Great Transformation of Regulated Industries Law, 98 COLUM. L. REV. 1323, 1331-33 (1998); Payton, supra note 307, at 142.
377. See generally Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283 (1996).
378. On the historical origins of the law of common callings, see generally HAAR & FESSLER, supra note 144, at 55-108;
379. David S. Bogen, The Innkeeper's Tale: The Legal Development of a Public Calling, 1996 UTAH L. REV. 51;
380. Charles K. Burdick, The Origin of the Peculiar Duties of Public Service Companies (pt 1), 11 COLUM. L. REV. 514 (1911).
381. See generally HAAR & FESSLER, supra note 144, at 109-40; Gustavus H. Robinson, The Public Utility Concept in American Law, 41 HARV. L. REV. 277 (1928); Rossi, supra note 145, at 1244-50.
382. See generally HAAR & FESSLER, supra note 144, at 141-93; Rossi, supra note 145, at 1250-60. The regulatory model that consolidated at the turn of the century has undergone a fundamental transformation during the recent decades of "deregulation." See Kearney & Merrill, supra note 308, at 1323. Despite this tide, however, in most industries these changes meant a new paradigm of regulation rather than no regulation at all. See id. at 1323-30.
383. Recently, a federal district court summarily dismissed as "frivolous" a claim that a search engine had a duty not to discriminate under the law of public callings. See Langdon v. Google, Inc., 474 F. Supp. 2d 622, 627 (D. Del. 2007). That court, with no discussion or explanation, narrowly construed the definition of a person engaged in public calling to cases where there exists an innkeeper-guest relationship. See id. at 634.
384. The term is taken from Lord Matthew Hale's seventeenth-century English treatise. See generally Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759, 759 (1930). The phrase was later appropriated by nineteenth-century American courts, which developed the category of private businesses subject to special public duties and regulation. See Munn v. Illinois, 94 U.S. 113 (1876).
385. See Goldman, supra note 11, at 197-98.
386. See generally Susan P. Crawford, Shortness of Vision: Regulatory Ambition in the Digital Age, 74 FORDHAM L. REV. 695, 696 (2005) ("[I]f the proponents of centralized control are allowed to proceed, they will waste an enormous amount of energy working towards failure.").
387. For a critique of this position, see generally Boyle, supra note 75.