Ohio Files Bizarre And Nonsensical Lawsuit Against Google, Claiming It's A Common Carrier; But What Does That Even Mean?

from the this-makes-no-sense dept

There’s been this bizarre fascination among conservatives that tons of internet companies should be declared “common carriers.” Of course, this ignores decades upon decades of conservatives fighting against any and all attempts to use common carrier designations on businesses that might legitimately be common carriers, like telcos. Again, there are a few key factors that make something a common carrier: (1) that it’s about transport (things, people, data) from one place to another and (2) it’s a commodified service in which what you get from any particular provider is likely to be mostly the same and (3) there is at least some argument that it’s a natural monopoly, in that rebuilding the same infrastructure for multiple providers would be ridiculously inefficient or disruptive or both.

None of those really apply to internet providers (though it may apply to at least some aspects of broadband). But, instead, conservatives have focused in on trying to get Google and Facebook declared common carriers.

And now, Ohio has jumped up to try to force the issue, filing a bizarre lawsuit to declare Google a common carrier. The filing kicks off with talk about how dominant Google is, and then says that the lawsuit is not about dealing with Google’s dominance (or even saying whether it’s good or bad), but just about having the company declared a common carrier:

This suit does not seek redress for Google?s dominance of internet search. This suit does not argue that Google?s dominance of internet search is good or bad when viewed in isolation. Those issues are left to be resolved elsewhere. This case accepts Google?s dominance of internet search as a fact (be it good or bad). Accepting this fact, the first claim is narrowly focused on establishing that Google?s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law.

But what does that even mean? Google is not “carrying” anything from one place to another. It’s delivering search results and ads (mostly) and a variety of other services as well (though almost all of its other services are not “dominant” and are highly competitive). And it’s unclear what being a “common carrier” for search or ads would even look like. Since it’s so disconnected from what a common carrier truly is, it’s hard to see how any of it fits in at all. It needs to return all search results? Huh? It needs to host all ads?

The whole point of search is to rank the results. If the argument is that it can’t rank the results, or exclude bad results, then… does Google just return totally random results? Or must it serve all ads? Even those that are totally irrelevant? How would that even work?

Google operates more than just a search engine. It is a complex and multifaceted business. In addition to providing a general search engine, which it monetizes through an advertising business, Google engages in a range of business lines that compete with not just search engines and online advertisers, but with suppliers of information, products, and services. For its second count, Ohio requests injunctive relief to remedy the unfair advantages Google?s presentation of search results, have allowed it to create for its other business lines.

Well, Ohio, you now have a 1st Amendment problem on your hands. How Google presents its search results is Google’s opinion, and that’s protected speech under the 1st Amendment. Ohio saying that the search results are “unfair” is a pretty clear 1st Amendment issue, because it’s saying that it doesn’t like Google’s opinion on which search results are most relevant. I can’t see how that gets over a 1st Amendment hurdle.

Google intentionally structures its Results Pages to prioritize Google products over organic search results. Google intentionally disadvantages competitors, by featuring Google products and services prominently on Results pages. It often features Google products and services in attractive formats at the top of the Results page above organic search results. Additionally, Google often presents Google products in enhanced ways in the search results that are designed to capture more clicks, including by integrating other Google business lines?such as specialized searches?into the Results page. It does so even when the Google product would not be returned near the top of an organic search. It does not allow competitors to have similar access, thereby violating its duties as a common carrier.

So… again, this goes back to basically being an antitrust argument in disguise, in which it tries to wrap it in an ill-fitting common carriage suit. Whether or not Google favors its own products over others isn’t a common carriage issue.

Google knows that most search customers, particularly those customers using mobile devices like cellular phones, will click through to links that are on the highest positions on the Results Page, and/or are presented in enhanced ways. What Google Search users want to see?organic search results?are frequently downgraded to appear below Google products.

If that’s actually true, then, uh, again this should go to competition, not common carriage. First, it seems like a huge opportunity for some other search engine to step in and tell people “if you’re sick of all those things Google puts on top of the organic search results you want, come to our search engine instead.” And there are other search engines out there. But, again, the framing of this lawsuit is just bizarre. It’s really trying to be an antitrust lawsuit but trying to shove it through the common carriage hole.

Then, Ohio’s AG cite’s Justice Thomas’s bizarre, unbriefed, nonsensical concurrence in Biden v. Knight, to argue something, something common carrier:

Justice Thomas recently stated, ?[t]here is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated.? Biden v. Knight First Amendment Inst. at Columbia Univ., 593 U.S. ___, ___ (Slip. Op. at 6) (2021) (Thomas, J., concurring). Justice Thomas went on to explain, ?[t]he analogy to common carriers is even clearer for digital platforms that have dominant market share. ? Google search?at 90% of the market share?is valuable relative to other search engines because more people use it, creating data that Google?s algorithm uses to refine and improve search results.?

Again, this was totally unbriefed, and completely unrelated to the issue at play in the case. And, again, there is no indication of what it would even mean for Google to be a “common carrier” in this context.

The complaint then, laughably, claims that Mark Zuckerberg agrees with Clarence Thomas, because of Zuck’s politically motivated op-ed saying that the internet needs new regulations. But saying Facebook wants new regulations (which was to (1) appease angry regulators and (2) twist those regulations to prevent competition) is nowhere near meaning that Zuckerberg supports common carriage claims. That’s like taking someone saying “it would be good if people ate more vegetables” and responding “so clearly you think everyone should be on an all plant diet all the time!” It’s nonsense.

Ohio has an interest in ensuring that Google, its users, and the entities whose information Google carries are aware that Google Search is a common carrier under Ohio law. Ohio also has an interest in ensuring that as a common carrier Google Search does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce.

WHAT DOES THAT EVEN MEAN?!? How can search be on an “equal basis” when the whole point of search is to rank and discriminate so that the most useful results come first, and the least useful (or not at all useful, or harmful) results don’t show at all?

And, again, Google’s ranking of search results is an opinion. It’s speech. It’s expression. It’s protected by the 1st Amendment.

I don’t want a search engine designed by Ohio’s Attorney General that is forced to give all the results. I want a search engine that gives me results that are well ranked to what I’m looking for.

To partially remedy the harm caused by Google?s self-preferencing, Ohio, in its second count, is entitled to declaratory relief that, as a common carrier and public utility, Google cannot self-preference on its Results Pages. Ohio is also entitled to injunctive relief that ends Google?s self-preferencing in Ohio by providing access to enhanced features on Results Pages that Google affords to its other business lines to other entities that may want to purchase such enhancements.

I mean, okay, fine. But that’s an antitrust issue, not a common carriage one, and it still implicates some speech issues.

The details of the claims are no better. I honestly don’t know how you run a search engine under these “requirements.”

As a common carrier, Google, in its operation of Google Search, has a duty to carry information from all sources indiscriminately as compared to Google?s own information.

Wait, what? It has to carry “information from all sources indiscriminately”?! But the entire point of a search engine is to discriminate. Otherwise it’s no longer a “search engine” it’s just a random web page generator.

The crux of the lawsuit is then just about Google advertising its own services over those of competitors, which again is not a common carriage issue, but a competition one. It seems like a really weird and nonsensical attempt to end-run around antitrust law, basically because Ohio’s attorney general wants to avoid dealing with federal law, and wants to focus on Ohio law.

I have trouble seeing how it could possibly succeed, or if it did succeed, how it would help anyone at all. And, again, it’s completely bizarre to see Republicans, who have fought tooth and nail against common carriage in every other context, often referring to it (incorrectly!) as “socialism”, now suddenly screaming to make clearly non-common carrier services into common carriers for the sake of some sort of culture war.

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Comments on “Ohio Files Bizarre And Nonsensical Lawsuit Against Google, Claiming It's A Common Carrier; But What Does That Even Mean?”

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62 Comments
That One Guysays:

Well if that's what you want...

Were I in Google’s shoes I’d be tempted to at least in part give them what they’re asking for as the results would be hilarious and utterly useless.

‘You searched for X, here’s every hit we found on that with the results absolutely randomized so that they would be as neutral as possible.’

MightyMetricBatmansays:

Google: In light of the decision of the state of Ohio to sue, we have delisted all Ohio related search results. Additionally, searching anything related to Ohio will return the message "Ohio Attorney General Dave Yost files dumb lawsuits". We will consider reinstating Ohio related search if the lawsuit is dropped. Have a nice day.

ladyattissays:

It's all about control

Seriously, my subject line says it all. They’re not about their principles or their ideology, it’s all about control. If they can’t "trust the market" to protect their peculiar set of values then they’ll burn the whole thing down out of spite. It borders on abusive behavior that you see in some dysfunctional relationships (particularly from the abuser in the relationship). I don’t think legal analyses will help here, I think these folks need a shrink to work over their neuroses.

Kobysays:

Wait, what? It has to carry "information from all sources indiscriminately"?! But the entire point of a search engine is to discriminate. Otherwise it’s no longer a "search engine" it’s just a random web page generator.

The hope was that the search algorithm was returning results based on relevancy to the user. Instead, google appears to refuse to consider information from some sources that are important to the user, but google dislikes. The results are not random, they’re supposed to be focused around the interests of users and creators.

Stephen T. Stonesays:

Re:

google appears to refuse to consider information from some sources that are important to the user, but google dislikes.

Google is under no legal, moral, or ethical obligation to index links from sites that are largely collections of bullshit disguised as ?news? or ?political punditry?. But please, feel free to explain???if you can???how Google is under such an obligation despite legal protections against compelled speech and association. I?ll wait.

Rockysays:

Re: Re:

The hope was that the search algorithm was returning results based on relevancy to the user.

It does that.

Instead, google appears to refuse to consider information from some sources that are important to the user, but google dislikes.

Yeah.. I have to call bullshit on that one. Unless you are talking about sites that no normal person would want to visit due to their repugnant content, or sites that can’t be arsed to follow Google’s guidelines so the indexer can do it’s job properly. If you think I’m wrong, give us a list of these sources that Google refuses to index.

The results are not random, they’re supposed to be focused around the interests of users and creators.

Which they are.

ladyattissays:

Re: Re:

I’m gonna say no to that assertion. Google puts quite a bit of effort into making a very low bias search algorithm. The worse part of the algorithm is that it’s TOO open and you have to know all the search engine tricks like using minus on keywords to get exactly the results you want if your initial search terms or phrase happens to be too ambiguous for it. I remember when Google had to tackle click farms but now they have to tackle fake review or pay-for-positive-review sites. So the attacks against search rank has escalated over time. So I have serious doubts that Google devs and C-suite nerds are trying to actively bias the results. At worse, they put preference on their services that fit best the search terms used. And like Mike, I think that comes under antitrust not common carrier nonsense.

ladyattissays:

Re: Re: Re: Re:

Yandex is a terrible search index. DuckDuckGo is better since it’s aggregates Bing and Google. You’re not gonna find many other folks willing to fork over hundreds of millions to build a new search index whole cloth. And I’m not joking on the money required cause half of that is gonna have to go to brand marketing just to get traction.

Anonymoussays:

Re: Re:

Koby, why is it that you people seem to have a problem with absolutely fucking everything?

Google bad.
Facebook bad.
Twitter bad.

And yet, despite all of that whining, bitching, and complaining you build bastions of conservative speech like Gab, Frankspeech, and Parler – and STILL fucking complain.

Tell me, is there anything you don’t have a problem with? Or is the whole world out to get you?

Scary Devil Monasterysays:

Re: Re: Re: Re:

"Or is the whole world out to get you?"

Bingo!

Koby and his friends in the Stormfront forum have this problem, you see, where the vast majority of the people on earth consider most of what they really have to say utterly deplorable.

So yeah, neo-nazis and white supremacists are indeed in a bad position visavi most of the rest of the world. That’s why they keep looking for a way to not get thrown out of bars and online platforms so often.

Mike Masnicksays:

Re: Re:

The hope was that the search algorithm was returning results based on relevancy to the user. Instead, google appears to refuse to consider information from some sources that are important to the user, but google dislikes.

I like how you say that as if those are different things. The entire reason people rely on Google is because they think that it is best at finding what’s relevant and important to the user. If Google "dislikes" it, it’s because Google thinks it’s not good or relevant to the user. You can disagree with that, but all you’re doing is inserting your opinion (or Ohio’s opinion) for Google’s. And that’s… a 1st Amendment issue.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

Free speech to people like Koby means he gets to say whatever wherever whenever with a provided audience and no consequences, but if you disagree with what he says, that’s not free speech. He has hierarchical thinking ingrained in his ideology. He thinks less of others, so he deserves more privileges. "Free speech" is just a disingenuous battlecry trying to twist the values of others against them.

BJCsays:

Re: Re: Re: Re:

I think there’s a more nuanced argument to be made, although neither Ohio nor the poster made it.

The question is, in my mind, whether Google makes any sort of consumer protection law-covered guarantee that you get a particular kind of information retrieval service. I’m not convinced that it does, but if it did, it would change things.

Say the Ohio argument was as follows:

  1. The AG has done a survey of Ohio consumers, and they believe, based on these advertising statements made by Alphabet, that what the Google search page provides is a service akin to consulting a reference librarian.
  2. Here’s a bunch of sworn statements from my experts, professors of library science and major figures in library and knowledge management trade associations, setting forth the standards for what a reference librarian provides the user, including the common standards of library practice in the field when users ask for controversial/incorrect/offensive material.
  3. Google does not follow these standards and does not make it clear that it does not follow these standards.
  4. Therefore, as Ohio consumers are not getting the information retrieval service they have been advertised in violation of consumer protection law.

I don’t think this in reality is a winner of an argument if Ohio did it because I think the actual facts related to claims (1) through (3) are much less clear-cut than my hypothetical.

But I do think that the hypothetical argument avoids the First Amendment. If I hired a newspaper clipping service to send me relevant news items but they didn’t give me any reason to know that they were run by extremely religious people who don’t look at periodicals with pictures of women in them, I would have a reason to feel that I was deceived as to the nature of the service even if they had a First Amendment right to run the service as they see fit.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

but they didn’t give me any reason to know that they were run by extremely religious people who don’t look at periodicals with pictures of women in them, I would have a reason to feel that I was deceived as to the nature of the service

At which point caveat emptor applies, and you look for a service that better suites your needs. What is happening here is an attempt to force a company to comply with the standards of an increasingly extremist party, and does not bode well if allowed to continue to the establishment of a fascist state..

BJCsays:

Re: Re: Re:2 Re: Re: Re: Re:

Caveat emptor isn’t a thing.

Both state and federal law are chock-full of "unfair and deceptive practices" laws like the Federal Trade Commission Act and the California Consumers Legal Remedies Act that hack away at the concept of "caveat emptor" and replace it with a variety of more restrictive allowed business practices.

So, for purposes of this argument, I’d like you to go find whichever one of the 50 states and District of Columbia has consumer rights law that most offends your libertarian sensibilities regarding "sins of omission" to the customer, the one that you would find most paternalistic and intrusive, and argue to me that, under any implication from the brief hypothetical I proposed, there’s no case under established state law.

Anonymoussays:

Re: Re:

Then the user isn’t generating a very good search profile for themselves somehow. Or whatever they are looking for isn’t among the most popular results.

People could always try directly going to sites they already know they want, or use a site search or other criteria.

I’ve never been in love with google, but lol.

PaulTsays:

Re: Re:

"they’re supposed to be focused around the interests of users and creators"

They are. Google are where they are now because they’re extremely good at doing this. They also have competitors if you dislike their choices.

Oh, what a surprise, Koby is here whining like a toddler about business decisions and trying to demand that they make their business less useful for everyone else to placate him, instead of exercising his free market options and use a competitor.

Anonymoussays:

The AG said in an official statement: ?Google uses its dominance of internet search to steer Ohioans to Google?s own products–that’s discriminatory and anti-competitive […]. When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access."

"Discrimination" is a word that has a negative connotation for some, but does not necessarily describe anything illegal or immoral. And is it actually true that cellular network operators are common carriers? I was under the impression that the USA did not regulate cellphones as it did with landlines, and that companies do not have to allow competitors to use their networks.

Uriel-238says:

Work the magic to put the thing in the other thing

Now that the GOP is operating entirely on the notion that double standards should apply so that the Republican party and MAGAs should get what they want all the time and everyone else should be denied, it’s possible they’re losing the ability to appeal to the notion of egalitarian law. They want MAGA-approved hits to lead on a Google search but are struggling to work out how that would be done.

So they shot in the dark and created what in Star Trek parlance is tech talk that should wow the audience that the ship’s engineers are doing something complicated to fix the negative space wedgie.

Except its lawyer talk and any judge with conscience or integrity left is going to realize that’s not how c?o?m?m?o?n? c?a?r?r?i?e?r? l?a?w?s? transporters operate. They only can hope the judge is also MAGA and will see his way to do the MAGA thing. <Winkity-nudge ????????????????????????????????????>

Scary Devil Monasterysays:

Re: Re: Work the magic to put the thing in the other thing

"Now that the GOP is operating entirely on the notion that double standards should apply…"

"Now"?

The GOP has operated on that assumption since the 50’s when all the neo-confederates, klansmen and the american nazi party started voting republican in the wake of Nixon’s and Goldwater’s Southern Strategy.

At least democrats rarely condemn others for their own hobbies.

Jeffrey Nonkensays:

Sounds like state socialism to me.

Are people advocating moving to a socialist economy with the state owning the means of production? Because every time anybody suggests the state do anything to actually help the populace, they start screaming "OMG Socialism!" But any time a private entity does something they don’t like, they want the government to take it over.

Asking for a friend.

Scary Devil Monasterysays:

Re: Re:

"But any time a private entity does something they don’t like, they want the government to take it over."

Yes, this is how a certain type of extreme right-wingers have always reacted. Back in the day the original nazis were, at least, relatively upfront about it. The neo-nazis of the US today aren’t built of the same stuff and are currently suffering because – entitled, thin-skinned snowflakes that they are – they want Uncle Sam to have their back so they can bully other people without risking a beating in return.

Anonymoussays:

A ploy for attention

This has all the hallmarks of an attorney general PR stunt.

Contrast this lawsuit to his opinion on net neutrality…

The Republican running for attorney general, state Auditor Dave Yost, says ?a mere political difference of opinion? doesn?t merit a lawsuit if the law is followed. (from wdtn news coverage)

That’s not so much "changed spots" on this leopard as it is a whole new cat.

Tanner Andrewssays:

better description

[google are] delivering search results and ads

I think it might be better phrased as “answering questions” and displaying advertisements. Delivery sounds more like a common carrier function, where it is handed search results (or boxcars) and delivers them impartially to the browser (or siding) of the intended recipient.

The service is not “delivery”, but rather the provision of search results.

Tanner Andrewssays:

Google favors its own products over others isn’t a common carriage issue

It might be, if Google were a common carrier. It would not, however, be fatal to Google’s case.

Historically railroads charged less if you rode in their coaches (which typically carried 48 or 52 seats), rather than the third-party Pullman cars (standard 10/6 carries 22 people). This was reasonable since they could carry a lot more people in the coaches, and they were typically lighter than the Pullman cars to boot.

Google may be able to argue that they have better access to index their own products, making it in some electronic sense cheaper to collect and display own results.

All of which only kicks in if, in fact, Google can somehow be contorted into the position of a common carrier. So far I do not see it happening, unless the Ohio courts are even more stacked by their governor than ours have been through decades of one-party rule.

Tanner Andrewssays:

don’t want a search engine designed by Ohio’s Attorney General

You and pretty much everyone in Pennsylvania and Indiana prefer non-Ohio-oriented search results. The same is probably true of California residents.

From the perspective of someone who has offered internet hosted services in a previous life, I see this as a possible interstate commerce problem. It may also be that Ohio is too business-hostile to support a Google presence in that state.

From a lack of offices in Ohio I would expect a lack of state taxes to follow.

Anonymoussays:

Surely Ohio’s search engine would just be a list of all websites on the internet, just to make sure no-one gets any unfair advantage…

I would also be very interested to see a system where ALL adverts are allowed, only to get actual engagement metrics. I know some parties will start cramming, but if certain former reality tv stars website closures due to a lack of ratings can be considered, it may actually give a more valid measure of public opinion than what pundits and other media personalities say is the truth.

PaulTsays:

Re: Re:

"Surely Ohio’s search engine would just be a list of all websites on the internet, just to make sure no-one gets any unfair advantage"

The list would have to be completely randomised, since any kind of ordering would still attract claims of bias, and done every time the page is loaded. It would have to be presented as a single gigantic page, since any attempt to split it up would attract claims that being put anywhere except for page 1 was some kind of censorship attempt. Then, when the random list places a Chinese or Russian site near the top or presents something unkind to some individual near the top, it will be claimed that this proves that they’re puppets of a foreign power driven to personally attack someone. That’s one problem with placating these kinds of people – they will never be happy and even the act of trying to work with them proves to them that you’re working against them.

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