New Debate On Search Engine Regulation

Eric Goldman’s Technology & Marketing Law Blog features an interesting debate and discussion about whether algorithmic search results should be subject to regulation. On one side is Goldman, who says “no.” On the other are law professors Frank Pasquale and Oren Bracha who argue “yes” in a recent paper entitled “Federal Search Commission: Access, Fairness and Accountability in the Law of Search” (now offline apparently). (The Goldman blog has a lively back and forth with Bracha for those interested.)

Goldman published the Pasquale and Bracha paper’s abstract:

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.

After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.

The issue of search regulation has been raised before a number of times (here by BBC writer and technology consultant Bill Thompson).

I haven’t been able to read the underlying paper advocating regulation and so can’t comment on the substantive arguments. But regulation, as a general matter, of natural search results would be ill advised. Consumer privacy is a different matter, where regulation is more justified.

General search is not a market without competition and required government involvement/approval of algorithms or changes in algorithms would potentially impede advancements and technological development. Would all search engines (regardless of market share) be subject to similar regulation? Would any site with an algorithm that displays search results? While fairness in search results sounds good to some in the abstract, the practical implementation of such a regulatory scheme is where it all might break down and wreck havoc.