Proposed Remedies for Search Bias: 'Search Neutrality' and Other Proposals in the Google Inquiry
50 Pages Posted: 15 May 2012 Last revised: 5 Oct 2015
Date Written: May 14, 2012
Google is currently the subject of high-profile antitrust scrutiny by the Federal Trade Commission (FTC), the European Commission (EU), and other regulators. At the heart of this scrutiny is Google’s competitors’ claim of “search bias” — that Google manipulates Google Search results to penalize competitors or to privilege other Google products and features. In light of these antitrust inquiries, Google’s competitors have publicly proposed more than a dozen remedies for agencies to pursue. This article evaluates these proposed remedies, with a focus on the FTC’s investigation in the United States. The remedies can be evaluated now because Google’s complaining competitors have had considerable opportunity to provide details of workable remedies. Microsoft, Expedia, Foundem, and a host of other companies have formed coalitions devoted to pursuing an antitrust investigation, called FairSearch in the United States and Initiative for a Competitive Online Marketplace (ICOMP) in Europe. These coalitions have issued several white papers, sections of which propose a large number of remedies. Their consultants have also elaborated on these remedies and proposed others. It can be assumed that these competitors and their consultants have already put forward their most persuasive remedies, rather than putting forth their least persuasive proposals. This article concludes that the cures proposed by the competitors are worse than Google’s alleged disease. The proposed remedies might benefit the short-term economic interests of Google’s competitors that are members of FairSearch and ICOMP, but benefiting competitors is not the goal of antitrust law. The goal of antitrust law is to promote consumer welfare, competition, and innovation. The proposed remedies, however, would do the opposite: harm consumers, impede competition, and stifle innovation. The remedies would invite government agencies and technical committees to second-guess and evaluate both mundane and game-changing engineering and user-interface decisions regarding Google Search, reverse long-standing fair use principles rooted in constitutional requirements, and empower competitors to litigate rather than compete against daily innovations and disclosures by Google.
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