the conversation. We depend on advisors to keep confidential what we tell
them: doctors and investment advisers are legally obligated to secure their
records; so too for search engines. Our
query histories are some of the most
personal and potentially embarrassing data trails we leave behind us. They
have even been used as evidence in
murder trials. Strong privacy protections for user search data are essential.
Some of these points apply beyond
search engines; some do not. The anti-payola principle is a general one; the
FTC has warned advertisers that they
must disclose sponsored blog posts,
and even sponsored tweets. 3 So is the
idea that the government should not
make users’ choices for them; Tulsa
cannot tell Yelp that the Holiday Inn
deserves an extra star and the Rama-da does not. But the duty of loyalty is
weaker where advice is not personalized; consumers can continue to leave
humorous reviews of the Three Wolf
Moon T-shirt at Amazon, even though
the reviews may not be especially helpful for shoppers. 1
Google is not the Eye of Sauron,
finding all that is good on the Internet and corrupting it. Nor, despite
its mission “to organize the world’s
information and make it universally
accessible and useful,” is it humanity’s informational savior. Google is a
company that provides an enormously
significant online service. When that
service raises serious legal questions,
we should ask whether it is good for
the users or bad for the users.
1. amazon.com. the mountain three wolf moon short
sleeve tee; http://www.amazon.com/the-mountain-
2. Chandler, J.a. a right to reach an audience. hofstra
Law Review 35, 3 (2007), 1095–1137.
3. federal trade Commission. . Com Disclosures, 2013;
4. federal trade Commission. letter to gary ruskin.
Re: Complaint Requesting Investigation of Various
Internet Search Engine Companies for Paid Placement
and Paid Inclusion Programs, (June 27, 2002).
5. federal trade Commission. Statement regarding
google’s Search Practices. In the Matter of Google
Inc., ftC file no. 111-0163 (Jan. 3, 2013).
6. google Inc. Commitments. Foundem and Others,
Case ComP/C-3/39.740 (apr. 3, 2013).
7. grimmelmann, J. Speech engines. Minnesota Law
Review (2014), in press.
8. Volokh, e. and falk. D.m. google first amendment
protection for search engine search results. Journal of
Law, Economics, and Policy 8, 4 (2012), 883–899.
James Grimmelmann ( email@example.com) is
Professor of law at the university of maryland.
Copyright held by owner/author(s).
gine is one that is most useful to users,
rather than the one that is least biased,
or most reflects its programmer’s point
of view. Le Snoot may be the “best” restaurant in town, as judged by professional food critics. But some people do
not like heavy French cuisine, others
are vegans, and even cassoulet lovers
would rather just have a slice of pizza
now and then. Whether Le Snoot or
Dave’s Diner is more relevant to a user
depends on what she intends as she
types her query.
Calling Google an advisor cuts
both ways: it gives Google both rights
and duties. It gives a powerful argument against search neutrality: a law
that puts Le Snoot back on top makes
it more difficult for the user who
wants a grilled cheese sandwich to
get a decent meal. But just as readers
would rightly be furious to discover
the hotel concierge only recommended Le Snoot because the head chef
slipped him an envelope stuffed with
cash, search users would also have
cause to complain if payola determined search rankings. More than a
decade ago, the FTC strongly warned
search engines against displaying undisclosed paid listings. 4
All three theories capture something
important about how search engines
work. Each of them celebrates the contributions of one of the essential parties to a search. The conduit theory is
all about websites with something to
say, the advisor theory is all about the
users who are interested in listening,
and the editor theory is all about the
search engine that connects them.
But when it comes to crafting sensible law for search engines, our sympathies should lie with users. The Internet
has made it easier to speak to worldwide audiences than ever before, but
at the cost of massively increasing the
cacophony confronting those audiences. Since users’ interests are as diverse
as human thought, they need highly
personalized help in picking through
the treasures in the Internet’s vast but
utterly disorganized storehouse. The
search engine is the only technology
known to humanity capable of solving
this problem at Internet scale.
Some familiar controversies about
Google look rather different from
this point of view. Take search bias. If
Google is a conduit, bias is a serious
problem; Google is setting up orange
cones to block the highway and divert
Internet users to the Google exit. If
Google is an editor, bias is just as much
a non-issue as when the front page of
the Daily News promotes its own sports
coverage rather than the Post’s.
If Google is an advisor, though, the
answer lies somewhere between “
always wrong” and “always fine.” The
key question is not whether Google is
helping itself or whether it is hurting
websites, but whether it is helping users find what they want. Sometimes,
for some queries, Google can quite reasonably think that users will be grateful if it lists its own services first. Flight
search is a good example: Google’s interactive OneBox helps users dive right
into the flight-picking process.
At other times, for other queries,
Google may have strong evidence that
users prefer particular sites. If Google
demotes them to insert its own pages
that it knows users would rather not
see, that could be problematic. It is a
form of deception: Google is telling
the user, “This is the best I can do for
you” when it knows full well it could
The FTC properly recognized that
deception was the real issue in the
Google case. The FTC’s decision to
drop its search bias investigation
hinged on a conclusion that Google
had not underplayed its hand. Some,
like Expedia and Yelp, criticized the
outcome. But there is a difference between disagreeing with Google’s ranking decisions—everyone wants to be
king of the results page—and showing that those decisions were made in
Another advantage of treating
search engines as advisors is that it
helps put user privacy at the center of
When it comes to
crafting sensible law
for search engines,
should lie with users.