Reimagine Google

Trump sued and lawyers laughed. The suit claims that social media giants violated the First Amendment by silencing the “Forty-Fifth president of the United States,” which we know because he included it in the caption. On the one hand, nobody does that. On the other, the claim is impossible because Facebook isn’t the government, and only the government can violate the First Amendment.

Legally, it’s worse than goofy, which explains why Dersh calls it the “most important First Amendment case of the 21st century.” This is worse than frivolous: for it to rise to the level of specious would require a complete reversal of American constitutional jurisprudence. But then, as legally absurd as the suit is, Ohio Attorney General Dave Yost makes a pitch for a paradigm shift nonetheless.

American law recognizes that some critically important businesses must accept all customers and treat everyone fairly because they are not easily or economically efficient to duplicate — think railroads, electricity providers and telephone companies.

As Ohio’s attorney general, I went to court last month asking for a judicial declaration that Google has evolved into such an entity: a public utility of internet search.

There is no question that Google, as it exists, is a private company that has become a behemoth. Sure, 20 years ago there were a dozen search engines, each of which were trying to figure out how the heck they would monetize the benefit they provided internet users. Some weren’t bad, but Google came along and was better, or at least people believed it was better, and its competitors largely, though not entirely, faded away. Now Google owns the space and, by leveraging its ability to take the very private and personal information people freely give it, makes money selling it, using it to manipulate us, and getting us to do as it wills.

Yost isn’t quite right when he compares Google to public utilities. Each of his examples were given a governmental monopoly and/or exceptional powers, such as the authority to take land, in exchange for wiring us together. There was a give and take, a choice made by both the utility and the government to hold hands and stroll together along their easements for what was understood to be a public good.

Google pulled it off without any special government handout. There was no agreement. There was no quid pro quo. Maybe Google would have cut the deal when it was a fledgling baby biz trying to find its way to profitability, but those days are gone. Now that it’s got the world by the nuts, government takes issue for the very obvious reason that Google has as much, if not more, clout over humanity than government does. So now government wants to control it.

As a common-law public utility, Google would then have a legal duty to act with consideration of the public interest, to provide equal access to all users and all information providers and to act without unreasonable bias against information providers, particularly Google’s competitors in other business lines. That’s it. As legal touches go, it’s a lot lighter than what antitrust law would demand.

Once Google is declared a common carrier, the average web user’s experience of search would, for the most part, remain the same. That’s largely because, when you use Google to search, you’re not the customer — you’re the product. Google uses your detailed personal information for targeting ads.

There are two separate issues raised here, which Yost finesses just a wee bit to his convenience. Is it in the public’s interest that the government, rather than Google, gets to decide who gets “equal access”? Note his phrase “unreasonable bias,” which means reasonable bias is still groovy.

And while he’s absolutely right that we, the users, are the product and not the customer, would we want government to make us the customer? Do we want to pay to watch a video or search for “cute cat pics” or, dare I say it, “porn”? Remember, there is no First Amendment protection for obscenity, whatever that may be.

Once a court declares Google a public utility, the marketplace itself would provide the guard rails. Those who felt they were not getting a fair shake could seek redress in court, though modern public utilities largely follow the rules, and we would not expect Google to face an avalanche of litigation.

Here’s the catch: it would be one thing if Congress decided that it wanted to nationalize Google, Facebook or Twitter, pay off their shareholders and then run them as well as government runs everything it controls. So what if Zuck no longer knew your innermost secrets and the NSA did instead? But Yost wants a court to do this. And that’s what the real point of Trump’s silly suit is about as well, to use lawfare to get what he can’t get otherwise.

Yost argues on behalf of his state’s interest, which is understandable, and as other states like California, and federations like the European Union, have sought to do, want to bring  private corporations within the ambit of state laws. After all, it’s a sovereign and Google, well, only plays on the internet.

But the common law regarding public utilities remains in many places — including Ohio. Statutory regulation will produce different results from the common law because while codification requires detailed regulations addressing all issues upfront, the common law allows for nuanced lawmaking tailored to each specific dispute.

What he means by “nuanced lawmaking tailored to each specific dispute” is an unprincipled but desired outcome because that’s what Ohio wants. And what if Ohio got a judge to sign off on its “common law” scheme to own the internet?

Critics also say that this creates a “dormant Commerce Clause” problem — that one state among 50 is using its law in a manner that burdens interstate commerce, a violation of sovereignty and federalism. But Google can geo-fence Ohio if it chooses (and the other states that will most likely follow Ohio’s lead).

What Yost might not be seeing is that Google isn’t Commodore Vanderbilt’s railroads, with physical plants and its inherent needs and limits. Google isn’t about Ohio or even America. It’s everywhere, ubiquitous, and as much as Americans believe we’re the center of the universe, what if America awoke tomorrow to find that the tech giants decided to pull the plug on us and see how we like it?

The irony is that they are too powerful, too necessary, beyond anybody’s reach or control if that’s what they want to be. We’ve known this for a long time, that a few people whom we might not care to invite for dinner are the real “trilateral commission” running the world as we know it. But would we trust Trump or Biden to have that level of control rather than Zuck and Dorsey? Even if the answer is yes, there’s still the rest of the world out there which doesn’t really care what Ohio or Trump want.

The only serious question in Trump’s case is how high the Rule 11 sanctions will be. But if Yost can get some backwater judge in Ohio to sign his proposed order, the question will be whether the people of Ohio open their web browsers to find a blank, dark screen. Google will survive without them. Will they survive without Google?

33 thoughts on “Reimagine Google

          1. RT

            That’s what happens when you start peeling away the Onion. I’ll spare us all the Duck comment.

  1. Hunting Guy

    Franklin D. Roosevelt.

    We had to struggle with the old enemies of peace—business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.

    They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob.

    Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me—and I welcome their hatred.”

  2. B. McLeod

    There are lots of stories about Ohio (where Phil Ochs was once a boy). Some of them are old stories. I am pretty sure Ohio existed before there was a Google. It probably could again (even the Cleves).

  3. SamS

    In dissent in Citizens United v Federal Election Commission, Justice John Paul Stevens wrote that the opinion represented “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government.” What Trump is saying and Stevens wrote are essentially the same thing: we have to prevent corporations from undermining self government.

  4. John Barleycorn

    You should back up your entire archive on floppy discs now and throw a August SJ festival party on a farm field somewhere in up state NY….

    What could go wrong? I am sure AOL will sponsor the porta-potties….

    P.S. Make sure there is a golf course somewhere near….

    1. SHG Post author

      You’re not going to believe this, but you’re the second person in two days to make that suggestion.

      “By the time we got to SJFest, we were half a million strong. And everywhere was a song and a celebration…”

  5. Charles

    In Knight First Amendment Institute v. Trump, the Second Circuit ruled that Trump couldn’t block followers but they also expressly noted that they weren’t deciding whether social media companies were First Amendment actors:

    “The salient issues in this case arise from the decision of the President to use a relatively new type of social media platform to conduct official business and to interact with the public. We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms.

    We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.”

    Trump alleges in the complaint that his Facebook account was an “instrument of his presidency,” presumably to leverage this idea and force the court to address that issue. That’s probably sufficient to escape any sanctions under Rule 11(b)(2) for the mere filing of the complaint.

    However, that fact doesn’t apply to any of the other members of the putative class, so the idea of filing this as a class action is baseless. That’s probably sufficient to warrant sanctions under Rule 11(b)(1), unless Trump amends to drop that from the complaint.

  6. CLS

    After attempting to read the Trump complaint, I have some questions.

    1. Someone got fired for drafting this, right? And for filing it?
    2. Seriously, does no one teach Remedies in law school anymore?
    3. What about standing? Proper jurisdiction and venue? Do they teach those anymore?
    4. Is there an over/under on impending Rule 11 sanctions? I’ll say it’s under 30 days.

  7. Sams

    Just quoting an ikon. I think Citizens United was decided correctly and Trump is wrong, not that my opinion matters. However, I think you are disparaging Trump’s argument just because he is making it. There have been a lot of people on the left who think Citizens United was wrongly decided. Now there are a lot on the right who agree. The left is now changing its mind.

    1. SHG Post author

      Was this a reply to something? Neither side has a monopoly on idiocy. I just prefer it stay at reddit rather than here.

  8. James

    ” But if Yost can get some backwater judge in Ohio to sign his proposed order, the question will be whether the people of Ohio open their web browsers to find a blank, dark screen. Google will survive without them. Will they survive without Google?”

    duckduckgo.com works perfectly fine as a search engine. Google is still paying Apple $8-$12 billion annually for the right to be the default search engine for Apple users ($8-$12 per user). Google does not want users to get comfortable with an alternative search engine.

  9. Loki

    Isn’t the government concession comparison satisfied by the current interpretation of Section 230? Without that, none of the major social media or web tech giants could exist as they are, and it’s a major legal benefit conferred by congress…

  10. Ray

    What do you mean the only real question is how high the Rule 11 sanctions will be. Dersh says this is the most important First Amendment case of the 21st Century. He teaches at Harvard.

  11. ljakaar67

    I’m okay with google doing google things, every generation of google search seems worse than the one before. Same with Facebook and Twitter.

    But, I would make certain required pieces of internet infrastructure into common carriers, this would be the DNS registrars and the payment processors.

    I often hear “don’t like facebook/twitter/reddit, make your own!” but then the people who try and try to enact their own free speech and freedom of association find themselves booted off the net and then unable to register domain names or accept payment.

    If this is a century dependent on the internet for research, communication and commerce, then I do think internet access, including the hosting of websites becomes the right of citizens taken away only in the most extreme cases. Twitter can ban someone, but that someone should be able to put up their own speech somewhere on the net. Possibly hosting it on their 5G phone so long as they can register a domain name and have their ecommerce implemented.

    Just as important the way to get Google, Facebook and Twitter to self-correct is to provide an environment of healthy competition. And that’s why DNS registrars and payment processors should be regulated as common carriers.

    Silly Trump though, if he had wanted to hurt Twitter while president he would have moved his own account to any social media platform he wished to boost, and possibly moved the entire executive branch off twitter along with him.

    1. SHG Post author

      While you may like it, what basis would there be to impose such a requirement on payment processors? Don’t confuse “things I believe would be good” with things that the government has the authority to do.

      1. ljakaar67

        I concede this entirely. I think this would be good policy based on my belief Internet hosting must be part of some 21st Century right to access the net and that this is the minimum I think is needed to ensure that.

        Or looked at another way, if society somehow decides access to the net is a right, then this is how we make that so.

        Not an internet historian, regarding DNS provision being a common carrier, that may have been the state up to 1998 when ICANN was formed (and to a far lesser degree perhaps even up until 2016 when US oversight of ICANN stopped.)

        1. SHG Post author

          As a policy proscription, it’s a good idea, particularly about payment processors. Whether it’s doable is another matter.

  12. Usun

    We had the same issues with private telegraph companies, private phone companies. And trying to reinvent the bike and run all century old scams through unregulated internet companies. Tech monopolies provide utilities, they should be regulated.

Comments are closed.