Regulatory Policy

The Common-Carrier Solution to Google’s Market Dominance

Google logo at the Viva Tech start-up and technology summit in Paris, France, in 2018. (Charles Platiau/Reuters)
Treating the search giant as a common carrier is a reasonable solution for Ohio.

It doesn’t matter if Leviathan is governmental or corporate: Too much centralized power is harmful to liberty. Google LLC and its parent company Alphabet have vast, unsettling power over our citizenry. Google may once have claimed its motto was “don’t be evil.” But as Madison noted, none of us are angels.

A further word about Madison’s canonical statement about the souls of men and governments: Conservatives and libertarians understandably focus on the dangers of overcentralized government power. But individual liberty was the focus of the Founders. Threats to liberty need to be addressed, whether they come from individuals or institutions. Whether the institution threatening liberty is a government or corporate entity doesn’t change that. It only changes the nature of the response.

Google is such a threat. More web traffic goes to Google platforms than the other top-50 platforms combined. Beyond that, more news is consumed on Google News than on any other platform. Most critically, Google dominates search, cornering 90 percent of the market. Network effects and algorithmic improvements suggest that Google Search’s dominance will only grow.

In and of itself, Google’s dominance of search may not necessarily be bad. There is at least an argument that, because of the virtuous cycle of algorithm refinement, there never was a truly competitive market for Internet search. Rather, the competition was for the market. A single dominant algorithm could be more perfectly refined than several smaller competitors, this theory goes. Thus, some would conclude that the dominance of a single search engine was inevitable, and indeed preferable. Assuming this to be true, the question turns to Google’s use of its search dominance. If Google were only a search engine, the threat would be low. However, Google is multifaceted. It has many other businesses, which benefit from the dominance of Google Search.

The problem is the search monopoly’s self-preferencing. Google uses its search dominance to advantage its other businesses — artificially promoting its vertical products such as shopping, local, and flights — in its search results, even when these products do not appear at all in Google’s organic search results.

Although this may sound minor, the effects are anything but. Because, 63,000 times per second, the world relies on Google to show relevant results, the harm caused by Google’s “slight of link” to competition and innovation in non-search areas is vast. Yelp and TripAdvisor are well-known victims of Google’s decision to place a thumb on the scale of search. Consumers are harmed when the most relevant search results are intentionally replaced with inferior products.

In addition to market harm, leaving Google with no duties under U.S. law leaves a vacuum that results in foreign governments increasingly controlling what we see on the Internet. Everyone is familiar with the annoying cookie permission boxes we have to click past thanks to the EU. A recent settlement with France now affects how Google ads will be marketed in the U.S. A near-simultaneous Google settlement with the U.K. will affect how Google handles privacy issues in the United States. The absence of an adequate legal structure in the U.S. for the Internet and Big Tech risks ceding control of U.S.-based Internet properties to foreign oversight.

Enter Ohio’s “light-touch” common-law solution: common-carrier status. Ohio attorney general Dave Yost filed a lawsuit in June to declare Google Search a common carrier. Originally developed for ferries and oxen-pulled carts, the theory remains valid today. The basic premise is that those who provide important services to the public at large cannot harm the public or unreasonably disfavor certain customers. These rules easily fit Google Search.

Google provides a ferry-like service. Google Search ferries information, products, and services across a sea of data 5.6 billion times a day. Its services have become instrumental to all of us. Google Search’s self-stated mission is to catalog the world’s information and deliver the most relevant search results. Under the common law, Google, as a common carrier, has a duty to provide this service in a straight-up manner. It cannot intentionally skew search results to favor its own products.

Some argue that common-carrier status would “break” Google, meaning that it would degrade its search results. This argument misunderstands what Ohio is seeking. Ohio wants Google to rely on its search algorithms just like everyone else. Common-carrier law doesn’t prevent Google from returning responsive results — rather, it requires responsive results. If Google’s other products and services (say, Google Docs or Google Cloud) are not sufficiently relevant to rank on the first page of search results, then Google should not display its own products above the search results. How does asking Google to follow its own rules “break” search? It doesn’t. It improves search.

Some would ask: What about search-results advertising? The answer is the same. Google can displace ads in search results. It can even advertise its own products on results pages. But it cannot do so in a manner, or on terms, that it does not afford to competitors. Does Google want to integrate Google Flights into search results? Great, but allow Orbitz to bid against Google Flights for similar integration.

If Google Search is not treated as a common carrier, then Alphabet becomes like The Blob. It will grow and grow until it consumes everything it touches. It’s a classic collective-action problem. Google can use Search to steer consumers to its own, potentially inferior, products. The consumer harm might be small enough that individually, we each decide to suck it up and rely upon the five reviews Google shows instead of specifically searching out the 30 more-refined reviews afforded by Yelp (that even Google Search’s algorithms rank higher, but that Google suppressed).

Now individually, that might mean I eat a gyro that isn’t as good as the one I would have purchased from a competing restaurant if I’d had the higher-quality Yelp reviews, but life goes on. However, the cumulative effects of Google’s choice cause millions of us to have similarly degraded experiences across all aspects of life. But, perversely, they would not be so degraded as to compel us to abandon reliance upon Google, because overall its search results are so reliable and convenient. This is how Google uses its search dominance to grow its other businesses at the expense of competitors, which stifles innovation and competition.

Ohio’s common-law common-carrier solution is “light touch” because it doesn’t impose a regulatory regime. Instead, it allows individuals and businesses to bring cases to determine whether Google is meeting its duty. It also creates a legal duty of fair treatment in the U.S. (or at least Ohio) that can serve as protection to all of us — and even Google — against demands upon Google by foreign governments that do not share our classical liberalism. Google can’t, say, hide photos of Tank Man without facing liability in Ohio.

For those concerned about extra-territorial impact of Ohio’s cases: Our case needn’t affect Google outside Ohio. Google already geofences its search results. Google can limit its non-self-preferenced results to Ohio if it so chooses.

Like all common-law concepts, common-carrier law has evolved over time. What first applied to carts, ferries, “public houses,” and gristmills later applied to railroads, electric companies, and telephone providers. Like these earlier means of moving goods and people, Google Search has become critical to moving digital products and is critical to our daily lives. Alongside the provision of what has become a critical service comes an equally critical, but not overbearing, duty to serve.

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