Internet Law

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Lawyers are considering how and whether the government could use its regulatory authority over Google after President Donald Trump complained Tuesday that search results are skewed against conservative voices.

After Trump expressed his concerns in tweets, his chief economic adviser, Larry Kudlow, said Tuesday that the administration is taking a look at Google’s conduct. That led to head-scratching by some lawyers who questioned which laws would authorize the inquiry, and criticism by others who said regulation would violate the First Amendment. The Washington Post, the Wall Street Journal and the Recorder have stories, while First Amendment experts weigh in at the Post and the Volokh Conspiracy.

The Federal Trade Commission resolved an antitrust probe of Google in 2013 without taking legal action. The antitrust issue concerned search engine results that highlight the company’s own services. That doesn’t appear to be an issue in Trump’s claims of political bias, according to experts who spoke with the Recorder.

Crowell & Moring partner Alexis Gilman, a former assistant director of the FTC’s Bureau of Competition, told the Recorder she didn’t see a viable antitrust claim. “There’s no indication here that Google is prioritizing its own products or services over those of other companies or is otherwise excluding news competitors to Google,” Gilman said. “Instead, the claim here seems to be that news outlets that are more favorably inclined toward the administration don’t appear as high on search results as other, non-Google-owned news outlets. I don’t see how that’s an antitrust violation.”

David Balto, former policy director of the FTC’s Bureau of Competition, questioned the logistics of how the government would regulate search results. “A big question is what in the world would you regulate and how would you regulate it?” he told the Recorder. “There are an unfathomable number of searches made every moment, and how would you regulate it without a regime that would remind you of 1984?”

In his Post op-ed, Cahill Gordon & Reindel senior counsel Floyd Abrams said a debate over Google’s fairness is healthy, but any government regulatory action “would constitute a particularly egregious violation of the First Amendment.” Quoting Justice William O. Douglas, Abrams wrote that “the essential scheme of our Constitution and Bill of Rights was to take government off the backs of people.”

University of California at Los Angeles law professor Eugene Volokh was commissioned in 2012 to write a white paper for Google that argued for First Amendment protection for search results. He published an excerpt at the Volokh Conspiracy.

The computerized algorithms that determine search engine results inherently include engineers’ judgments about what material users are most likely to find responsive to their queries, Volkoh wrote. In that regard, the judgments are similar to those made by newspapers and wire services when they decide what stories to run and which columnists to feature. “And all these exercises of editorial judgment are fully protected by the First Amendment,” he wrote.

Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University, told the Post that the courts have accepted the view that search results are protected by the First Amendment.

For its part, Google says its results are based on relevance, taking into account a user’s geographic location and browsing history. The search results aren’t used to set a political agenda, said spokeswoman Riva Sciuto.

Even if the government can’t regulate search results, it could take action against Google in other ways, according to the Wall Street Journal. The administration could ask Congress to revise Section 230 of the Communications Decency Act, which shields internet companies from liability for hosting others’ content. Another alternative is to seek investigations of online privacy violations.