Copyright Law

Search Neutrality

By Andrew Raff, Esq.

In The New York Times, Adam Raff (no relation that I'm aware of) wrote an Op-Ed arguing that the FCC should regulate "search engine neutrality," Search, but You May Not Find

Today, search engines like Google, Yahoo and Microsoft's new Bing have become the Internet's gatekeepers, and the crucial role they play in directing users to Web sites means they are now as essential a component of its infrastructure as the physical network itself. The F.C.C. needs to look beyond network neutrality and include 'search neutrality': the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance.

Raff's argument is essentially that because search plays a dominant role in driving internet users to web sites and because Google is so dominant in search, it can use its market power to effectively drive smaller companies off of the Web.

Isn't this really a question of anti-trust and/or competition rather than communication? If Google is using its market power against smaller competitors, that would be prohibited by existing Federal anti-trust law. The FTC already regulates anti-competitive business practices.

The market for internet access is fundamentally different from the market for web search. The cost of switching search providers is very close to zero. To change one's preferred default search engine takes mere seconds. Even Google's own web browser, Chrome, respects the computer user's default search setting and will default to using Microsoft's Bing as its search engine.

The cost of switching internet access providers may be more difficult because local cable franchise laws and/or physical distance from the telephone central office may prevent Americans from physically being able to switch from one broadband internet service provider to another. For users who have only one potential provider for broadband internet access, they may be denied access to entire services and content if, on a non-neutral internet, that service provider decides to deny access to certain services because the competitors to those services paid the provider for preferential service.

Is there any reason that search engines deserve special regulation as part of communications infrastructure rather than the same general antitrust and unfair competition laws and regulations that already prohibit using market power for nefarious anti-competitive goals?

At Madisonian.net, Greg Lastowka asks What is Search Neutrality? and Rob Heverly argues There is no "search engine neutrality".

Here's Foundem's campaign for Search Neutrality.

Full post as published by IPTAblog on December 28, 2009 (boomark / email).