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

Legal Issues

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.

Filed Under: antitrust, common carrier, competition, ohio, search
Companies: google