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Federal Search Commission? Access, Fairness and Accountability in the Law of Search

69 Pages Posted: 26 Jul 2007 Last revised: 1 Feb 2014

Frank A. Pasquale III

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project

Oren Bracha

University of Texas at Austin - School of Law

Abstract

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 constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.

Keywords: Google, search engine, privacy, defamation, internet, public utility

JEL Classification: A10, Z10, H23, D43, D62, D83, K20, K21, K23, 034

Suggested Citation

Pasquale, Frank A. and Bracha, Oren, Federal Search Commission? Access, Fairness and Accountability in the Law of Search. Cornell Law Review, September 2008; U of Texas Law, Public Law Research Paper No. 123; Seton Hall Public Law Research Paper No. 1002453. Available at SSRN: https://ssrn.com/abstract=1002453

Frank Pasquale (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States
410-706-4820 (Phone)
410-706-0407 (Fax)

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Oren Bracha

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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