The troubling consequences of trade secret protection of search engine rankings

The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research

Volumn , Issue , 2011, Pages 381-405

  Pasquale, Frank ^a  

^a Frank Pasquale ^*  (United States)

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EID: 84881951027     PISSN: None     EISSN: None     Source Type: Book    
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References (71)

1. David Stark, The Sense of Dissonance: Accounts of Worth in Economic Life 1 (Princeton University Press, 2009)
2. For a characterization of search engines as 'cultural voting machines', see Frank Pasquale, Internet Nondiscrimination Policies for Competition Online, Testimony before the U.S. House Judiciary Committee's Task Force on Competition Policy, July 15, 2008. The fact/opinion dichotomy is important in this area of law, as the owners of the ranking systems described in this chapter are almost certain to offer a First Amendment challenge to any governmental regulation of the results they provide. They will claim that intoxication detection and vote validity are factual determinations, whereas a search engine ranking is an opinion that cannot be punished or controlled by the state under current First Amendment doctrine. Though such defenses have protected entities like credit rating agencies in the past, they are coming under increasing pressure. Nathan Koppel, Andrew Edwards and Chad Bray, Judge Limits Credit Firms' First Amendment Defense, Wall St. J., September 7, 2009 ('The judge said ratings are typically protected from liability and subject to an actual malice exception because their ratings are considered matters of public concern. "However, where a rating agency has disseminated their ratings to a select group of investors rather than to the public at large, the rating agency is not afforded the same protection", the judge said'). The limited dissemination of personalized search rankings is similar to the situation in that case. For a fuller discussion of personalized search
3. Frank Pasquale, Reputation Regulation, in The Offensive Internet: Speech, Privacy, and Reputation (Martha Nussbaum and Saul Levmore eds., Harvard University Press, 2010).
4. David Levine, Trade Secrets in Our Public Infrastructure, 59 Fla. L. Rev.(2007)
5. Danielle Keats Citron, Technological Due Process, 85 Wash. U. L.R. 1249 (2008). For a general jurisprudential account of the value of transparency in decisions that have the effect of law
6. Christopher Kutz, Law and the Value of Publicity, 22(2) Ratio Juris 197 (2009).
7. Mary L. Lyndon, Information Economics and Chemical Toxicity: Designing Laws to Produce and Use Data, 87 Mich. L. Rev. 1795 (1989)
8. Dennis Hirsch on the environmental metaphor applying to privacy theory generally, given the pervasiveness of surveillance- based business models with pervasive externalities. Hirsch, Protecting the Inner Environment, 41 Georgia L. Rev. 1 (2006). The need for expertise, and extensive externalities, make regulatory models particularly relevant here, though trusted non- governmental standards bodies might offer a 'third way' between market and state.
9. Jonathan Zittrain, The Future of the Internet and How to Stop It (Yale Press, 2008) (describing how sites tagged by Google's bots as harboring malware can appeal the decision to an NGO). The FTC already works with NGOs to increase the efficiency and fairness of dispute resolution. For example, the National Advertising Division of the Council of Better Business Bureaus vets the claims of advertisers, and in most cases it is able to pressure misleading ads offthe air.
10. Seth Stevenson, How New is 'New'? How Improved is 'Improved'?: The People Who Keep Advertisers Honest, Slate.com, July 13, 2009, available at www. slate.com/id/2221968/. ('The rule is that the advertiser must have substantiated any claims before the ad was put on the air, so the NAD will first ask for any substantiating materials the advertiser can provide. If the NAD lawyers determine that the claims aren't valid, they'll recommend that the ad be altered. The compliance rate on this is more than 95 percent. But if the advertiser refuses to modify the ad (this is a voluntary, self- regulating body, not a court of law), the NAD will refer the matter to the Federal Trade Commission').
11. Andrew Sullivan, The Black Box of Google, Andrew Sullivan's The Daily Dish Blog, http://andrewsullivan.theatlantic.com/the_daily_dish/2008/12/ bizarro- google.html (December 1, 2008 15:26 EST) (citing Jeffrey Rosen and Frank Pasquale).
12. Consider Philipp Lenssen, Google's Opinion Operator, Circa 2009, Google Blogoscoped Blog, http://blogoscoped.com/archive/2006- 09- 21- n55.html (September 21, 2006)
13. Frank Pasquale on Google's leading 'net neutrality' results in Internet Nondiscrimination Principles, U. Chi. L. Forum (2008).
14. Alex Halavais, Search Engine Society 85 (2008) ('In the process of ranking results, search engines effectively create winners and losers on the web as a whole. Now that search engines are moving into other realms, this often opaque technology of ranking becomes kingmaker in new venues'); see Posting of Aaron Greenspan, Why I Sued Google and Won, The Huffington Post, March 6, 2009, www.huffingtonpost.com/aaron- greenspan/why- i- sued- google- andwon_ b_172403.html (March 6, 2009) (discussing a small claims court case regarding AdSense and a request for Google's policies to be more transparent).
15. Chi- Chu Tschang, The Squeeze at China's Baidu, Businessweek, 2009, available at www.businessweek.com/magazine/content/09_02/b4115021710265. htm.
16. Oren Bracha and Frank Pasquale, Federal Search Commission: Access, Fairness and Accountability in the Law of Search, 93 Cornell L. Rev. 1149, 1151 (2008)
17. Frank Pasquale, Asterisk Revisited: Debating a Right of Reply on Search Results, 3 J. Bus. & Tech. L., 61, 69 (2008).
18. John Battelle, The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture (New York Pub., 2005) (available for that time)
19. Saul Hansell, Google Keeps Tweaking its Search Engine, New York Times, available at www.nytimes.com/2007/06/03/business/yourmoney/03google. html ('[Amit] Singhal is the master of what Google calls its "ranking algorithm" - the formulas that decide which Web pages best answer each user's question. It is a crucial part of Google's inner sanctum, a department called "search quality" that the company treats like a state secret. Google rarely allows outsiders to visit the unit, and it has been cautious about allowing Mr. Singhal to speak with the news media about the magical, mathematical brew inside the millions of black boxes that power its search engine').
20. James Grimmelmann, The Structure of Search Engine Law, 93 Iowa L. Rev. 1 (2007).
21. Elizabeth van Couvering, Is Relevance Relevant?, http://jcmc.indiana. edu/vol12/issue3/vancouvering.html (search engineers' 'animosity towards the . . . guerilla fighters of spamming and hacking, is more direct' than their hostility toward direct business competitors); see Posting of Aaron Wall to SEOBook, Google Thinks YOU are a Black Hat SEO. Should You Trust Them?, www.seobook. com/to- google- you- are- a- spammer (April 17, 2008) (claiming that Google discriminates against self- identified SEOs); Posting by Duncan Riley on TechCrunch, Google Declares Jihad on Blog Link Farms, www.techcrunch.com/2007/10/24/ google- declares- jihad- on- blog- link- farms/ (October 24, 2007)
22. Rand Fishkin, Paid Links - Can't be a White Hat With 'em, Can't Rank Without ?em, www.seomoz. org/blog/paid- links- can- you- rank- well- without- them (posted July 10, 2007) (last visited February 10, 2011) (due to the relationship between SEO and Google, it purchase at www.amazon.com/Search- Rewrote- Business- Transformed- Culture/ dp/1591840880).
23. Many complaints come from pseudonymous accounts, due both to Web norms and possibly because of fear of retaliation. See, e.g., Jan_Jaap, Google So Unfair and Unstable!, www.webmasterworld.com/google_adwords/3085690. htm (posted on September 16, 2006) (last visited February 10, 2011) (complaining about AdWords pricing and asking for greater transparency due to large price fluctuations)
24. Kewlguy, Google Cancelled my Adsense Account, www. gidforums.com/t- 6174.html (posted June 27, 2005)
25. Allanp73, Google's Unfair Discrimination, www.webmasterworld.com/forum3/12654.htm (posted May 7, 2003) (complaining that a Canadian business cannot compete with an American business in an American market (in violation of the Canada - United States Free Trade Agreement) because Google ranks differently depending on what region you're searching from)
26. Seldo.com, Google Knol is Evil, http://seldo.com/ weblog/2008/07/28/google_knol_is_evil (posted July 28, 2008) (complaining that PageRank is favoring Google Knol despite inferior content)
27. Aaron Wall, Google Caught Selling High PageRank Links, Again & Again, www.seobook.com/ archives/002403.shtml (posted August 2008).
28. Bill Slawski, Pagerank Patent Updated, www.seobythesea. com/?p=207 (posted June 6, 2006) (last visited February 10, 2011) (discussing the updated Pagerank Patent)
29. Bill Slawski, Google Patents, www.seobythesea. com/?p=1138 (posted on October 24, 2008) (last visited July 4, 2008) (last updated March 4, 2009) (categorizing and listing the 187 patents owned by Google at makes sense for an SEO to use paid links, and it also makes sense for Google to try and filter them out).
30. Steven Levy, Secret of Googlenomics: Data- Fueled Recipe Brews Profitability, Wired, www.wired.com/culture/culturereviews/magazine/17- 06/nep_googlenom ics (May 22, 2009) (in the AdWords program, advertisers' 'bids themselves are only a part of what ultimately determines the auction winners. The other major determinant is something called the quality score. This metric strives to ensure that the ads Google shows on its results page are true, high- caliber matches for what users are querying. If they aren't, the whole system suffers and Google makes less money'); see also Google, What is the Quality Score and How is it Calculated, http://adwords.google.com/support/aw/bin/answer.py?hl=en&answer=10215 (last visited February 10, 2011) ('The AdWords system works best for everybody - advertisers, users, publishers, and Google too - when the ads we display match our users' needs as closely as possible').
31. In early cases alleging an array of unfair competition and business torts claims against search engines, the First Amendment has proven a formidable shield against liability. Search engines characterize their results as opinion, and lower courts have been reluctant to penalize them for these forms of expression. In other work, I have described why this First Amendment barrier to accountability should not be insurmountable. Search engines take advantage of a web of governmental immunities that they would be loath to surrender. FAIR v. Rumsfeld and cognate cases stand for the proposition that such immunities can be conditioned on agreement to certain conditions on an entity's speech. Whatever the federal governments will, it is within its power to regulate ranking and rating entities in some way when they are so deeply dependent on governmental action. Frank Pasquale, Asterisk Revisited, 3 J. Bus. & Tech. L. 61, 69 (2008).
32. Federal Trade Commission, Dot Com Disclosures: Information About Online Advertising (May 2000) at 1 (available at www.ftc.gov/bcp/edu/pubs/busi ness/ecommerce/bus41.pdf) ('[d]isclosures that are required to prevent an ad from being misleading, to ensure that consumers receive material information about the terms of a transaction or to further public policy goals, must be clear and conspicuous').
33. At http://people.w3.org/~djweitzner/blog/?p=95 ('In the 1990s, the FTC under Christine Varney's leadership pushed operators of commercial websites to post policies stating how they handle personal information. That was an innovative idea at the time, but the power of personal information processing has swamped the ability of a static statement to capture the privacy impact of sophisticated services, and the level of generality at which these policies tend to be written often obscure the real privacy impact of the practices described. It's time for regulators to take the next step and assure that both individuals and policy makers have information they need').
34. David S. Levine's skepticism about such state- sponsored trusted entities, given the experience of those challenging Diebold in North Carolina. David S. Levine, Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure, 59 Florida L. Rev. 135, 183 (2007) ('the notion that a governmentcontrolled or designated entity could adequately protect the interests of the general public is dubious, and would turn on many variables that might undermine the third party's ability to operate in a completely public- oriented fashion. Indeed, where a state agency effectively nullifies a law designed to protect the public's interest, the entire basis upon which an escrow regime would be built - that is, trusting the entity charged with examining the escrowed material - is undermined. Thus, it is not readily apparent that a third- party (governmental or otherwise) might adequately protect the general interests of the public').
35. Viacom Intern. Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008)
36. Ray v. Allied Chem. Corp., 34 F.R.D. 456, 457 (S.D.N.Y. 1964) ('The end result of disclosure, where ultimately it develops that the asserted claim is without substance, may be so destructive of the interests of the prevailing party that more is required than mere allegation to warrant pretrial disclosure').
37. Note JeffJarvis's comparison of Google with Jesus in the book title 'What Would Google Do?'
38. Frank Pasquale, Sources of Google's Success, www.concurringopinions.com/archives/2008/01/sources_of_ goog.html ('the more I study the search market, the more I see fortuitous legal and regulatory decisions paving the way to Google's success. Perhaps its technology in search was and is better than any search engine competitor. But its uniquely dominant place in the internet ecology could have been snuffed out at many points over the past 10 years' by alternative developments in key legal doctrines of copyright and communications law).
39. Tim Anderson, Chrome: A New Force for Web Applications, www. theregister.co.uk/2008/09/04/chrome_review/ ('This is not just a browser: it is a vehicle for delivering web applications, and it significantly changes the balance of power between those trying to build modern client platforms')
40. Scott McCloud,The Google Chrome Comic, www.scottmccloud.com/googlechrome/index.html
41. Team Register, Google's Comic Capers: What They Really Meant to Say, www.theregister.co.uk/2008/09/02/google_chrome_comic_funnies/.
42. Gonzales v. Google, Inc., 234 F.R.D. 674 (2006) ('As trade secret or confi-dential business information, Google's production of a [limited] list of URLs to the Government shall be protected by protective order. Generally, the selective disclosure of protectable trade secrets is not per se "unreasonable and oppressive", when appropriate protective measures are imposed').
43. Other courts have been more sympathetic to plaintiffs in such a dilemma. See Michrotech International, Inc. v. Fair, 1992 WL 239087 (Conn. Super. Ct. 1992) ('Both of these proposed protective orders disregard the fact that in order for the plaintiffto demonstrate any wrongdoing on the part of the defendant, the plaintiffmust first discover the very information which the defendant seeks to preclude').
44. Compare a similar result in voting machine litigation in Florida in 2006-7. Jessica Ring Amunson and Sam Hirsch, The Case of the Disappearing Votes: Lessons from the Jennings v. Buchanan Congressional Election Contest, 17 Wm. & Mary Bill of Rts. J. 397, 398 (2008) ('the litigation ultimately was utterly inconclusive as to the reason for the 18,000 electronic undervotes because discovery targeting the defective voting system was thwarted when the voting machines' manufacturer successfully invoked the trade- secret privilege to block any investigation of the machines or their software by the litigants').
45. According to Federal Rules of Civil Procedure (FRCP) 26(c)(1), protective orders may be issued in the discovery process 'for good cause' in order 'to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense'. FRCP 26(c)(1)(G) specifies the issuance of a protective order to structure the discovery of trade secrets: orders may be issued 'requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way'.
46. Melvin F. Jager, Trade Secrets Law § 5:33 (updated in September 2008).
47. G.H.von Wright, Explanation and Understanding (2004) (distinguishing natural and human sciences)
48. Chris Anderson, The End of Theory: The Data Deluge Makes the Scientific Method Obsolete, Wired, June 23, 2008, www.wired.com/ science/discoveries/magazine/16- 07/pb_theory ('At the petabyte scale, information is not a matter of simple three- and four- dimensional taxonomy and order but of dimensionally agnostic statistics. It calls for an entirely different approach, one that requires us to lose the tether of data as something that can be visualized in its totality. It forces us to view data mathematically first and establish a context for it later . . . Google's founding philosophy is that we don't know why this page is better than that one: If the statistics of incoming links say it is, that's good enough. No semantic or causal analysis is required. That's why Google can translate languages without actually 'knowing' them (given equal corpus data, Google can translate Klingon into Farsi as easily as it can translate French into German)')
49. Jaron Lanier, One Half of a Manifesto, Edge, www.edge.org/documents/archive/ edge74.html ('There is a real chance that . . . the ideology of cybernetic totalist intellectuals will be amplified from novelty into a force that could cause suffering for millions of people').
50. Sergey Brin, Our Position on California's No on 8 Campaign, Official Google Blog, http://googleblog.blogspot.com/2008/09/our- position- oncalifornias-no- on- 8.html (September 26, 2008 15:23 EST).
51. Michelle Malkin, Google News: Not So Fair and Balanced, Michelle Malkin Blog, http://michellemalkin.com/2005/02/05/google- news- not- so- fair- andbalanced/ (February 5, 2005 18:49 EST).
52. Joshua Rhett Miller, Unlike Bush's 'Google Bomb', Google Quickly Defuses Obama's, FoxNews.com, www.foxnews.com/story/0,2933,485632,00.html (January 30, 2009).
53. See also Discussion about 'Google Quickly Defuses Obama's Google Bomb', Technorati Blog, http://technorati.com/articles/vsKqmOgmb%2B C8VmxIBNkko3mR%2BthIfUvxxs824v1MxDc%3D?sub=Zp4RPNF9ImpoHvE WipOIDONWcXFUCDVoyvhSeb04XR0%3D (January 30, 2009).
54. I collect literature on the 'struggle for salience' model of campaigning in Reclaiming Egalitarianism in the Political Theory of Campaign Finance Reform, 2008 Ill. L. Rev. 599, 644 (2008) ('Utilizing statistical evidence from several campaigns, John Petrocik concludes that, to candidates, "the campaign [is] a marketing effort in which the goal is to achieve a strategic advantage by making problems that reflect owned issues the criteria by which voters make their choice"')
55. Frank Pasquale, Political Google Bombing, www.concurringopinions.com/ archives/2006/10/political_googl.html (complaining that search engine optimization 'often boils down to the commodification of salience: if you give enough money to the SEO, they try to get you ranked high in response to certain queries. Given the already overwhelming influence of the "dollar primary", the thing we need to do is to extend that dynamic into the world of online politics').
56. In Federal Search Commission?, Oren Bracha and I briefly mention some complexities caused by Google's purchase of YouTube. For example, does Google weight its merger with a company in its ranking algorithm? How well are YouTube's rivals doing in searches on Google for videos? Will business partners of Google be treated better in search results than, say, entities suing the company for one reason or another?
57. In a hearing addressing competition on the Internet, House Judiciary Committee Chairman John Conyers made the comparison explicitly. At a recent hearing on the proposed Google- Yahoo joint venture, House Judiciary Chairman John Conyers complained that neither he nor other committee members were allowed to inspect the terms of the deal in a practicable manner. See Opening Statement of Chairman John Conyers, House Judiciary Committee, Competition on the Internet, Hearing of July 15, 2008, at 5:16-5:20, video available at www.cspanvideo. org/program/competition (last visited February 10, 2011) (Chairman Conyers complained that the members of the Committee were only permitted to inspect the deal if they viewed its terms 'at a law firm, with no notes allowed'. He stated that the Committee was given 'more ready access to documents surrounding the President's terrorist surveillance program'). Clip available at www.cspanvideo. org/program/competition (last visited February 10, 2011).
58. Christopher M. Kelty, Two Bits: The Cultural Significance of Free Software (2007).
59. Frank Pasquale, Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines, U. Chi. Legal F. 263, 265 (2008) (arguing 'that the safe harbors that shield dominant search engines from liability also suggest patterns of responsibility for the results they present [because dominant search engines] and carriers are infrastructurally homologous . . . [acting] simultaneously [as] stable conduits, dynamic cartographers, indexers, and gatekeepers of the internet')
60. Frank Pasquale, Beyond Innovation and Competition, 104 Northwestern U. L. Rev. 105 (2010) (discussing cultural and political dimensions of search engines and carriers that are not adequately addressed by economic analyses of regulation).
61. David Levine, Trade Secrets in Our Public Infrastructure, 59 Florida L. Rev. 135 (2007). Levine also describes how trade secrecy interfered with proper testing procedures for voting machines ('Diebold's response to being informed of four successful hacks of their machines, which one hacker likened to "prestuffing a ballot box", was to say that these tests were "invalid" and "potential violations of licensing agreements and intellectual property rights"').
62. Michael Carrier, Voting Counting Technology, and Unintended Consequences, 79 St. John's L. Rev. 645, 655 (2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=792324 ('Software is critical to DREs, with the success of elections hinging on the correctness, robustness, and security of the software. But flaws in software are not easily detectable, as malicious computer code may be disguised as useful code or may be difficult to locate. These dangers are heightened in programs as complex as those used by DREs and in software that the voting machine vendors have jealously guarded as proprietary trade secrets').
63. James Grimmelmann, comment on Black Box Voting Bleg, Madisonian. net, http://madisonian.net/2006/09/25/voting- black- boxes- bleg/ ('the secrecy of the ballot booth creates some requirements for less than complete transparency. Those requirements, however, don't translate into a similar requirement that the source code of the voting machines be secret. That's just ill- advised security by obscurity').
64. Danielle Keats Citron, Open Code Governance, U. Chi. Legal Forum 355 (2008).
65. Siva Vaidhyanathan, The Googlization of Everything (University of California Press, 2009) ('"Public failure" [is a] phenomenon in which a private firm steps into a vacuum created by incompetent or gutted public institutions. A firm does this not for immediate rent seeking or even revenue generation. It does so to enhance presence, reputation, or to build a platform on which to generate revenue later or elsewhere. It's the opposite of "market failure". And it explains a lot of what Google does').
66. Mário J. Silva, The Case for a Portuguese Web Search Engine, http://xldb.fc.ul.pt/data/Publications_ attach/tumba- icwi2003- final.pdf (describing the value of a Portuguese- oriented search engine)
67. Jean Noel Jenneny, Google and the Myth of Universal Knowledge: A View from Europe (2007). Whereas these authors believe that English- language bias is a particularly problematic aspect of Google's hegemony in the field, I argue that the possibility of many kinds of hidden bias counsel in favor of at least one robust, publicly funded alternative here.
68. Uwe Reinhart, The Pricing of US Hospital Services: Chaos Behind a Veil of Secrecy, http://healthaff.highwire.org/cgi/content/abstract/25/1/57
69. Annemarie Bridy, Trade Secret Prices and High- Tech Devices: How Medical Device Manufacturers are Seeking to Sustain Profits by Propertizing Prices, 17 Tex. I.P. L.J. 187 (2009) (discussing 'recent claims by the medical device manufacturer Guidant that the actual prices its hospital customers pay for implantable devices, including cardiac pacemakers and defibrillators, are protectable as trade secrets under the Uniform Trade Secrets Act').
70. Mackenzie Wark, Gamer Theory (Harvard University Press, 2007).
71. Robert M. Cover, Nomos and Narrative, 97 Harvard L. Rev. 4 (1983).