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Full-Text Articles in Law
Speech Engines, James Grimmelmann
Speech Engines, James Grimmelmann
Faculty Scholarship
Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.
A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized …
Dominant Search Engines: An Essential Cultural & Political Facility, Frank Pasquale
Dominant Search Engines: An Essential Cultural & Political Facility, Frank Pasquale
Faculty Scholarship
When American lawyers talk about "essential facilities," they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance.
In this chapter, I sketch a new concept of "essential cultural and political facility," which can help policymakers recognize and address situations where a bottleneck has become …
Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale
Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale
Faculty Scholarship
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 …
Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale
Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale
Faculty Scholarship
Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose.
Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic …